What to Make of Michael Flynn’s Sentencing Memo

Special Counsel Robert Mueller has asked a federal judge to spare Michael Flynn jail time in recognition of the “substantial assistance” President Donald Trump’s former National Security Advisor provided the special counsel investigation.

In a sentencing memo filed with a federal court Tuesday evening, prosecutors outlined the areas in which Flynn assisted the investigation. However, because much of Flynn’s assistance related to investigations that are still ongoing. So, most of the specifics are redacted. So, what can we conclude from this document and all its blacked out portions?


Flynn Provided Valuable Information to Prosecutors

First and most obviously, the document indicates prosecutors are pleased with whatever Mr. Flynn has told them. They argue that he was prompt and forthright in acknowledging his offense and that he’s been telling the truth ever since.

The term used here to describe Mr. Flynn’s assistance, “substantial cooperation,” is a term of art with specific meaning in the context of sentencing guidelines. Substantial assistance permits a judge to depart from the minimum sentence for an offense. According to the Federal Sentencing Commission’s formal policy guidance, which the sentencing memo cites:

“Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” (U.S. Sentencing Commission Guidelines, Section 5K1.1, 2018)

The sentencing guidelines prescribe incarceration of 0-6 months in the case of the violation of lying to investigators to which Mr. Flynn has pled guilty, so a downward departure is unnecessary in this case. But, the use of the term “substantial assistance” is intended to underscore the value of his assistance and justify prosecutors’ request that the judge consider giving Mr. Flynn no prison time.

Second, Mr. Flynn has provided information on the offenses of other individuals under investigation. We can infer this based on the requirement in the sentencing guidance mentioned above that the “defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.”

Third, Mr. Flynn has provided information relevant to at least three matters under investigation: 1) an unknown criminal matter presumably being investigated by other federal authorities; 2) The Special Counsel’s investigation into any links or coordination between the Trump campaign and Russia; and, 3) another matter that has been redacted in its entirety.

Fourth, Mr. Flynn provided information specifically pertinent to interactions between Trump campaign officials and Russia. The details of exactly how Mr. Flynn assisted prosecutors are frustratingly hidden under redactions. They are available to the judge, but because they pertain to ongoing investigations they must be redacted in the version provided to the public. But, it’s still possible to work a few things out from the addendum to the sentencing memo.

We know that Mr. Flynn specifically provided assistance on interactions between Trump officials and Russia during the transition. In the unredacted portions, prosecutors are mostly referring to Mr. Flynn’s own actions here. Since the investigation of Mr. Flynn’s conduct has concluded, there’s no need to redact them. Redacted portions indicate that he may have provided information on actions of others during the transition as well.

The rest of Mr. Flynn’s assistance in regards to interaction between the Trump campaign and Russia are redacted. However, from the use of a comma before a redacted portion we can infer that there are at least two more areas in which Mr. Flynn assisted in this area since a comma would only be necessary in a list of three or more items.

We Don’t Know Much About What Flynn Told Prosecutors

Fifth, there is no new evidence that Trump campaign officials conspired with Russia. However, this should not be taken as confirmation that no such evidence exists or that it does. We just don’t know.

Prosecutors typically hold their cards close in ongoing investigations for good reason. We don’t know what Mr. Flynn has told prosecutors. But importantly, neither do other witnesses. Other witnesses have to assume that Mr. Flynn has already told prosecutors everything. By highlighting Mr. Flynn’s cooperation, Mr. Mueller is signaling to other witnesses that it would be a mistake to lie.

As they have with other documents that have emerged from Mr. Mueller’s shop, Mr. Trump’s defenders have predictably seized on the absence of smoking gun evidence of so-called “collusion” to further their claim that Mr. Mueller’s probe is an unjustified partisan witch hunt. This conclusion is rooted in a fundamental misread of Mr. Mueller’s aims.

Mr. Trump’s defenders assume that Mr. Mueller is primarily motivated by a partisan desire to undermine Mr. Trump’s presidency by tarnishing it with the stink of “collusion.” So, if Mr. Mueller had discovered any indication that there was active coordination between the Trump campaign and Russia, they surmise that he would include it in his filings. It follows, in their reckoning, that because Mueller has yet to publicly provide evidence suggesting “collusion,” none exists.

This argument is premised on a fundamental misunderstanding of how investigations operate generally, and of Mr. Mueller specifically.

The special counsel investigation is focused first and foremost on uncovering what, if any, coordination there was between the Trump Campaign and the Russian government and, if such coordination existed, holding those responsible for it accountable. Second, it is focused on answering the question of whether Mr. Trump or any of his aides obstructed justice in an attempt to thwart investigation into these matters.

Investigators have good reasons not to reveal what they know about the core matters under investigation prematurely. Because the details of what they already knows are under wraps, when witnesses offer information that corroborates it, they can be more confident that the witness is being truthful. It also makes it easier to confirm that the account of events as they understand it is correct and not just the product of witnesses repeating what they believe investigators already know. Conversely, when witnesses offer contradictory information, it indicates that one of the witnesses is wrong and that perhaps their understanding of events is potentially incorrect. If investigators put out information in real time, it makes it harder to ascertain the reliability of witnesses and ultimately, to confidently determine the facts.

It’s important to stipulate that we don’t know that Mr. Mueller has any conclusive evidence of anyone in Mr. Trump’s orbit conspiring with the Russians. This may be because none exists. But, it’s also possible that Mr. Mueller knows more than he has revealed to date.

The Bottom Line

Mr. Flynn’s sentencing memo does not provide much new in terms of our understanding of what exactly happened between the Trump campaign and Russia — it’s still possible that the answer is nothing. Nor does it tell us much more about whether anyone abused their power in an effort to impede the investigation. But, it does strongly suggests that Mr. Flynn has provided valuable information that may implicate others. It is all but certain that there are more shoes yet to drop.



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