The revelation that Flynn discussed his conversations with Kislyak with a senior member of the transition team raises a number of questions about what Trump and his advisers knew. Vice President Mike Pence led the transition team, but he told CNN earlier this year that Flynn and Kislyak “did not discuss anything having to do with the United States’s decision to expel diplomats or impose censure against Russia.” The information in Flynn’s plea deal suggests that either Pence was kept out of the loop, or he misled the public about the extent of his knowledge.
But Flynn’s plea could be even more perilous for another, even closer presidential adviser: Jared Kushner, who is also the president’s son-in-law. According to The Daily Beast, Kushner “best fits the description” of the senior transition official with whom Flynn discussed his outreach to Kislyak. NBC News reported Friday afternoon that Kushner is indeed the senior transition official named in the document. If it was Kushner, his own statements to investigators will be closely scrutinized.
“If Mr. Trump knew that Flynn met with the Russian ambassador at Mr. Kushner’s request and then lied about it, one can assume that Mr. Trump wanted to shut down the FBI investigation to protect his son-in-law more than Flynn,” Green said.
“It’s now clearer that Trump was aware—or certainly should have been aware—that a continuing investigation of Flynn would bring things closer to him and his family, as it now has,” said a former Justice Department official. “So it’s not merely that a continuing investigation might serve as a continuing distraction, or be a source of political embarrassment. It’s that it could point to the involvement—and potential criminal liability—for him and members of his family. It goes to motive, which is not something that the prosecutor needs to prove, but it sure makes life easier in making and proving [a] case.”
It’s unclear whether a sitting president can be indicted, and obstruction of justice is a notoriously difficult charge to prove. But Mueller does have the ability to recommend to the House that Trump be impeached based on whatever he uncovers. And even if Trump himself can’t be prosecuted, his advisers can be. (Trump has denied any wrongdoing and has referred to Mueller’s investigation as a “witch hunt.”)
The difficulty for Mueller is that Flynn has already pled guilty to lying—which means his credibility as a witness is already impaired. But that might not matter if Flynn has documents corroborating his claims.
“The fact that he pled guilty to a false-statement charge is a problem for him as a witness; he’s a proven liar, so his cooperation might be more useful in documented form,” said John Q. Barrett, a law professor at St. John’s University. “If he has recollections that can be corroborated, his testimony could be very powerful.”
The fact that Flynn got a deal at all implies that Mueller believes he can use Flynn’s knowledge to implicate a more important target. The question is who, and for what.
“Based on my experience,” Soufan said, “when someone lies during an investigation, they’re usually trying to conceal a crime.”