Michael Flynn’s Guilty Plea Sends Donald Trump’s Lawyers Scrambling

The President insists that the investigations into Russian meddling amount to nothing more than fake news. But the truth is now emerging.

By Jeffrey Toobin

Trump’s lawyers want to convey the impression that he has nothing to hide.Illustration by Barry Blitt
Last June, less than a month after President Donald Trump fired James Comey, the director of the F.B.I., the Senate Intelligence Committee convened to hear Comey’s testimony about a bizarre series of conversations he’d had with Trump. The strangest of these took place on February 14th, in the Oval Office, after Comey attended a meeting with a group of senior officials, including Vice-President Mike Pence and Attorney General Jeff Sessions. Trump asked Comey to remain when the others left. He wanted to talk about Michael Flynn, who had served as a top official in Trump’s campaign and had resigned from his position as the President’s national-security adviser the previous day, after information about pre-Inauguration phone conversations he’d had with the Russian Ambassador leaked to the press. Trump knew that the F.B.I. was investigating Flynn for lying about these calls, among other possible crimes, and he had a favor to ask of Comey. “I hope you can see your way clear to letting this go, to letting Flynn go,” Trump said. “He is a good guy.” Trump is not generally known for his magnanimous impulses toward former associates, so the question of why he wanted the F.B.I. to ease up on Flynn became a matter of intense debate. We may now know the reason.
On December 1st, in federal court in Washington, D.C., Flynn pleaded guilty to making false statements in the investigation the President wanted to stop. Flynn admitted to lying to the F.B.I. about his conversations with Sergey Kislyak, the Russian Ambassador, concerning sanctions imposed on Russia by President Obama. Flynn also apparently reported on discussions with the Russian Ambassador to K. T. McFarland, a Fox News analyst who became Trump’s deputy national-security adviser, and Jared Kushner, Trump’s son-in-law and trusted adviser. At the time of the conversations, the Russia sanctions were of interest to the President-elect—largely, it seems, because they were of great interest to Russia. Vladimir Putin’s government wanted them lifted, and Flynn let Kislyak know that help was on the way. After the contact with Flynn, Russian officials decided to wait until the new Administration was in place to respond to Obama’s sanctions. This pleased the President-elect, who tweeted, “Great move on delay (by V. Putin)—I always knew he was very smart!” On this topic, as on so many others, the new Administration seemed to see things Russia’s way.
For months, Trump has insisted that the investigations into Russian meddling—investigations being conducted by the special counsel Robert Mueller and by both the Senate and House Intelligence Committees—amount to nothing more than fake news. But, as is so often the case when the President cries “fake news,” the truth soon emerges. Flynn’s encounter with Kislyak gets at central questions about the 2016 Presidential campaign and election: why were Trump and Russia doing one another’s bidding, and what promises were made between the candidate and that country in the event that he won? Flynn has now committed himself to answering those questions. He was charged with a single felony count, escaping multiple charges of greater magnitude in exchange for his coöperation with prosecutors. The leniency of the deal indicates that Flynn has information not only about the transition-team members but also about his superiors—and the national-security adviser’s only real superior is the President of the United States. Comey, whose testimony before the Senate Intelligence Committee mapped out the President’s potential obstruction of justice, certainly seems to feel vindicated by Flynn’s guilty plea and by what it might mean for Trump. Shortly after the news broke, Comey, referring to the Biblical Book of Amos, tweeted, “But justice roll down like waters and righteousness like an ever-flowing stream.”
Mueller was appointed on May 17th, a week after Comey was fired, by Rod J. Rosenstein, who was acting as Attorney General after Jeff Sessions recused himself from matters related to the investigation. Mueller was directed to conduct “a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 election . . . including any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” In the months since then, Mueller’s task has often been described as an inquiry into possible collusion between the Trump campaign and Russia—paradoxically, that framing has also become the heart of Trump’s defense. At least two officials in Trump’s inner circle have now lied to investigators about their dealings with Russia; four have been charged with felonies. Flynn’s guilty plea and promise to coöperate bring the investigation into the Oval Office for the first time. The charge against him, along with the cases against other members of Trump’s campaign, also hint at the kind of case Mueller may be building, and what defense the President and his associates may have.
Three lawyers form the core of the President’s defense team: Ty Cobb, John Dowd, and Jay Sekulow. In July, Trump hired Cobb away from private practice at the Washington law firm of Hogan Lovells, where he specialized in white-collar criminal defense, to serve as the White House liaison to Mueller’s office. Cobb is sixty-seven years old, with a voluptuous handlebar mustache and a serene manner. (According to family lore, he is a distant cousin of the late baseball star of the same name.) Cobb describes his duties as mundane in the extreme. “I feel most of the time like a second-year associate, because all I do is produce documents,” he told me. “My approach has been principally to accelerate the production of documents and the availability of witnesses to the fullest extent I can, with the hope of getting rid of this cloud that hampers the President in foreign policy, in domestic policy, and has the country confused and experiencing a malaise of the type that Jimmy Carter once explained. I think I’ve got a willing partner in Mueller, who also understands the importance of his task and the impact that it has on the Presidency.”
The White House lawyers, including Cobb, represent the institution of the Presidency, and Trump’s own lawyers, including Dowd and Sekulow, protect their client’s personal interests, but as a practical matter their goals are aligned: to make sure that Trump survives the Mueller investigation with his Presidency, and his liberty, intact. Trump’s public reaction to the investigation has been expressed principally through Sekulow, who is representing the President in an unlikely partnership with Dowd, who was hired in June. Dowd is best known for leading Major League Baseball’s investigation of Pete Rose for gambling on games, and, even though he has had fewer prominent cases recently than in the past, his hiring made a certain sense. Dowd is close to John F. Kelly, the White House chief of staff, who recommended him for the job, and who, like Dowd, is a retired marine and a native of the Boston area.

Sekulow grew up in a Jewish family on Long Island, and, after a religious awakening during his college years, in Atlanta, he joined the Messianic group Jews for Jesus. Following law school, he worked for the Internal Revenue Service, then founded a law firm that later went bankrupt. In 1986, he became the general counsel for Jews for Jesus. Sekulow’s advocacy on behalf of the group’s aggressive proselytizing brought him to the attention of Pat Robertson, the religious leader and conservative activist. The two men founded the American Center for Law and Justice, a right-wing counterpart of the American Civil Liberties Union, and the new organization thrived, thanks to the pair’s expertise in direct-mail fund-raising. Sekulow built a lavish headquarters for the A.C.L.J. in a renovated town house near the Supreme Court, and he branched out into public advocacy for a variety of conservative causes, including, eventually, the Presidential candidacy of Donald Trump. By now, Sekulow is as much a media figure as an attorney. He has had a nationally syndicated radio show, called “Jay Sekulow Live!,” and he frequently appears on Fox News. Sekulow has only modest experience in criminal law, but the President appreciated his spirited appearances on cable news and hired him as the public face of his defense. (Dowd remains behind the scenes.)
For now, Sekulow and Cobb are sticking to their original strategy. They have advertised their willingness to coöperate with Mueller as a sign that Trump has nothing to hide, and their reaction to Flynn’s guilty plea reflects this view. “Nothing about the guilty plea or the charge implicates anyone other than Mr. Flynn,” Cobb said. With regard to Mueller’s broader investigation, the White House lawyers’ position continues to be that President Trump didn’t commit a crime because no one did—or could—because there is no federal crime called “collusion,” and Rosenstein’s order did not refer to any criminal statutes that may have been violated. In several conversations with me, Sekulow emphasized that collusion between the Trump campaign and Russia, even if it did take place, wouldn’t be illegal. “For something to be a crime, there has to be a statute that you claim is being violated,” Sekulow told me. “There is not a statute that refers to criminal collusion. There is no crime of collusion.”
The Mueller investigation appears to consist, roughly, of three areas of inquiry. The first focusses on illegal lobbying by people affiliated with the Trump campaign; the second relates to the hacking of e-mail accounts associated with Hillary Clinton’s campaign and the Democratic National Committee; and the third involves possible obstruction of justice by Trump and others after he was inaugurated. (Mueller’s office declined to comment.)
The lobbying investigation was initiated more than a year ago, by prosecutors in Justice Department headquarters, in Washington, and in the United States Attorney’s office in Manhattan. On October 30th, the probe’s first findings came to light when a grand jury in Washington charged Paul Manafort, the former chairman of Trump’s campaign, and Rick Gates, Manafort’s longtime deputy, with various crimes arising from their lobbying work for the government of Ukraine. The thirty-one-page indictment accused the two men of twelve felonies, including money laundering, failure to register as foreign agents, and making false statements to government investigators. (Manafort and Gates pleaded not guilty.)
Just as Cobb dismissed the significance of Flynn’s guilty plea for the President, Sekulow brushed off the Manafort and Gates case as unrelated to Trump. Sekulow said, “These are serious charges, no question, but they’re not charges that involve the campaign.” Still, the steps Mueller has taken suggest that, in one respect, he is using a traditional approach to a complex criminal investigation. He is trying to obtain guilty pleas or convictions in peripheral areas to win the coöperation of witnesses who can illuminate the issues at the center of his inquiry. But unlike in, say, the investigation of an insider-trading ring or an organized-crime family, it’s unclear that the core issue in Mueller’s case—the connections, or collusion, between the Trump campaign and Russia—is a crime at all.
When it comes to the issue of collusion, Mueller’s prosecutors might take a lesson from Sekulow’s career. In the nineteen-eighties and nineties, Sekulow represented a number of religious groups before the Supreme Court: Jews for Jesus members who wanted to distribute leaflets at Los Angeles International Airport, a Christian youth group in Nebraska that wanted to conduct prayers in a public school after class, and an evangelical group that wanted to show religious films in a public school in off-hours. In other, similar cases, lawyers had argued that such religious groups had been denied their right to free exercise of religion under the First Amendment. But these claims had mixed success, because the defendants argued that the religious groups were actually engaging in the establishment of religion by the government, in violation of a different clause of the First Amendment. Sekulow cut through this problem by ignoring the religion clauses and arguing to the Justices that his clients were being denied their right to free speech. By repackaging free-exercise claims as free-speech cases, Sekulow avoided having to address a countervailing constitutional principle and thereby turned losing arguments into winning cases.