The news broke this morning that General Michael Flynn, former National Security Advisor to President Trump, has entered a guilty plea to a single count of making a false statement to federal authorities, under 18 U.S. Code 1001. At the point at which this article is being written, little is known beyond some key facts, but these facts are enough to foreshadow with a high degree of reliability the path forward for General Flynn and the Special Counsel's investigation.
The Significance of the Single Count Plea
As we have written in the past (Maximum Sentence? Likely Sentence? Confusion Over a White Collar Defendant's Criminal Exposure), a white collar defendant will frequently strike a plea bargain with the Government under Federal Rule of Criminal Procedure 11(c)(1)(A). One of the key features of such a plea agreement is a prosecutor's “promise” not to bring additional charges. In the case of a single felony count, particularly if the maximum sentence for such a count is somewhere between two and five years, a single count plea agreement has the effect of capping, or putting a ceiling upon, a defendant's maximum exposure. Here, assuming the Special Counsel brings no additional charges against Flynn, the most he could get, regardless of how serious or egregious his conduct may turn out to be, is five years. It does not matter what the Guidelines say and it does not matter what else he could have been charged with; no matter how bad it gets at sentencing, the absolute worse for General Flynn is five years.
The Significance of an “Information”
The Information to which Flynn will plead guilty is simply an Indictment without the action of a grand jury. It is common for an Information to be filed as the “charging document,” rather than an Indictment in situations where a defendant is actively cooperating with the Government and where the Government has agreed not to bring particular charges or other charges in general. As a practical matter, the fact that a defendant is charged with a felony by way of an Information as opposed to through an Indictment is of no legal significance, except perhaps that an Indictment, in the public eye, may seem more serious than being charged by way of such a vague and misunderstood term as an “Information.” Again, what it tells us at this point, is that this is part of an overall deal even though at the time this article was drafted, no information is known about the specifics of the agreement/”deal.”
Possible Effect On Other Potential Defendants/Targets Of The Investigation
It is very likely that the agreement, which will ultimately be made public, if in redacted form, will contain a provision whereby the Special Counsel's office commits to not bringing charges against Flynn's son, Michael Flynn, Jr. While not a certainty by any means, such provisions in plea agreements where an older family member is attempting to protect a younger family member or spouse are by no means unheard of and we will wait to see whether this particular agreement contains such a provision. Even absent such a specific provision, it is possible that negotiations between General Flynn's counsel and the prosecutors in the Office of Special Counsel have hinted that while the Office of Special Counsel is not promising not to bring charges against General Flynn's son or other family members or associates of his, there may have been a “wink and a nod” understanding that such charges would be unlikely.
Future Cooperation by Flynn
The significance of this development is huge in terms of the potential impact this could have on the Special Counsel's investigation into the various areas surrounding General Flynn's activities both before and after the President's inauguration. There is no doubt whatsoever that the Office of Special Counsel would never have agreed to such a highly favorable and highly protective plea deal on the part of General Flynn, who faces dozens of years in prison had he been charged with everything it appears he could have been charged with, without his being able to deliver the critical information that advances the Special Counsel's investigation. So, stay tuned! I believe that it's about to get even more interesting!