What to Make of the Latest Story About Flynn and Gulen?

The Wall Street Journal has another major story today regarding disgraced former national security adviser Michael Flynn. Reportedly, Special Counsel Robert Mueller is now investigating allegations that both Flynn and his son, Michael Flynn Jr., plotted to either kidnap and render Turkish cleric Fethullah Gulen to Turkey or to use Flynn’s influence as national security adviser to effectuate his extradition—all in exchange for up to $15 million.

It’s a very big story, one that casts the larger Flynn investigation in an altogether different, and more menacing, light, and one that also potentially casts the obstruction of justice investigation of President Donald Trump in a different light. Today, we put together a special edition of the Lawfare Podcast on the subject, featuring Shane Harris (one of the Journal reporters who broke the story), Turkey expert Ryan Evans, editor of War on Rocks, and Lawfare contributors Steve Vladeck and Paul Rosenzweig.

In this post, we try to unpack some of the story’s legal and political significance for Lawfare readers.

First, while stunning, this allegation is not entirely new. The Wall Street Journal and other outlets have previously reported on a September meeting between Flynn and Turkish officials in which they discussed possibilities for removing Gulen from the United States. Former CIA Director James Woolsey attended that meeting and was so disturbed by what he heard that he contacted then-Vice President Joe Biden through an intermediary to report the matter. Woosley has made some public statements about the episode.

The Journal’s latest story however adds three crucial new pieces:

• First, that Special Counsel Robert Mueller is investigating the matter as part of his larger probe into Trump associates and Russian election interference;

• Second, that a second meeting occurred in December, following the election and after Flynn had been named national security adviser designate to the Trump administration, at which planning continued; and

• Third, that this December meeting apparently focused on a more developed plan than what was discussed in September, including discussions of “the possibility of transporting Mr. Gulen by private jet to the Turkish prison island of Imrali” and a proposal to pay Flynn and his son up to $15 million for successfully delivering Gulen by one means or another.

In other words, the import of the new Wall Street Journal story is the news that the special counsel is investigating whether, during the presidential transition, the incoming national security adviser—while acting as unregistered agent of a foreign government—was also plotting a kidnapping on behalf of that foreign power.

What does it all mean?

There have been media reports over the past several weeks regarding possible indictments against Michael Flynn and his son. NBC recently reported that Mueller’s team believe it has enough evidence against the pair to seek an indictment. And sources familiar with the Flynn family have revealed that both the elder Flynn and his wife are especially worried about the possibility of their son facing serious legal jeopardy. Both the fact that a public indictment has not yet materialized and Flynn’s concern for his son have lead to speculation that he might choose to cooperate with Mueller’s investigation in exchange for a deal—or, in the alternative, that the Mueller camp is busily pressuring him now to do so.

Previously, most analysts seemed to be assuming that possible indictments for Flynn would relate to his failure to disclose income and information on his security clearance forms and elsewhere as required, possible false statements to investigators, and for failure to register as a foreign agent as required by the Foreign Agents Registration Act (FARA). Those are all serious matters on their own. But the latest allegations open up a whole new ballpark of possibilities.

The Journal story is ambiguous as to what the plot actually was and the manner and time in which it might be executed. On the one hand, discussion of putting someone on a private jet in exchange for $15 million would indicate the Flynn’s were not discussing using legal processes here. There is a word in the English language lexicon for forcibly putting someone on a plane against his will outside of the legal systems that allow compulsion and seizure of persons: The word is kidnapping and it is an extremely serious offense.

The federal kidnapping statute is at 18 U.S.C. 1201 and the laws of Pennsylvania—where Gulen lives—would presumably have something to say about aspects of the plot (assuming the facts as reported by the Journal are true) as well. Flynn was a private individual—a campaign adviser—at the September meeting, and in the transition period during which the December meeting took place, he was a designated government official who had not yet assumed office. When government officials act or conspire to transfer someone, against their will and not pursuant to regular legal process, to a foreign jurisdiction, that is often described as “extraordinary rendition.” Prior administrations have acknowledged the use of the practice with respect to foreigners captured overseas. Even then, it is extremely controversial. As applied to a domestic person outside of traditional legal processes, it is simply criminal—under all imaginable circumstances. Plotting to do it, is a conspiracy to kidnap.

The Journal is, as we say, ambiguous about means. In some passages, it suggests a kidnapping; in others, it suggests that Flynn would use his position as national security adviser to return Gulen by legal means. The U.S. and Turkey do have an extradition treaty. The Department of Justice has so far rebuffed Turkish extradition requests related to their claims that Gulen is the mastermind behind a 2015 failed coup attempt. But perhaps Flynn only agreed that he would use his influence to mount pressure on the Justice Department to use legal methods. And perhaps Flynn might argue that he was doing the President-elect’s bidding, attempting to reset relations with Turkey by removing a major irritant in those relations.

That answer might get Flynn out of some legal hot water, but unless the facts in the Journal story don’t pan out, there are still big problems. For one thing, there’s still the allegation about money. It’s no more legal to take $15 million to use your influence as national security adviser to bring about an outcome than it is to kidnap someone.

Moreover, this version of the story would actually raise troubling issues about political influence on law enforcement. While the United States and Turkey do have an extradition treaty, the extradition process is designed to insulate against politically motivated decision-making as to people’s fates—precisely what appears to have been contemplated here. Career DOJ officials, not the national security adviser, determine whether a requesting country has satisfied the terms of the treaty and provided a sufficient evidentiary basis to proceed with the request. That is especially important in situations like this one, where there is strong suspicion that the charges against Gulen are politically-motivated and that he will not be afforded protections of due process if returned to Turkey. If Flynn planned to subvert or improperly influence the extradition process for political aims, much less for money, that is a serious problem in and of itself.

The timing of the December meeting may also raise new questions related to Flynn’s status as a foreign agent under FARA. As Steve Vladeck writes on Just Security:

18 U.S.C. § 219, goes one important step further [than the rest of FARA], making it a crime for any individual who is an “officer or employee or person acting for or on behalf of the United States, or any department, agency, or branch of Government thereof, including the District of Columbia, in any official function,” to be or to act as an agent of a foreign principal under FARA.

In other words, for a private citizen, FARA’s entire impact is in requiring disclosure. But for public officials, § 219 actually prohibits such individuals from acting as foreign agents. Thus, whereas a private citizen need only apprise the Justice Department if they are receiving funds from foreign principals to influence U.S. policy, public officials may not receive such funds, period–and face felony charges if they do. (N.B.: There’s an interesting question about whether transition officials might qualify as “public officials” for purposes of § 219. I’m skeptical, but at least in Flynn’s case, there’s still the issue of whether he was continuing to serve as an agent of a foreign power on and after January 20, when he became the national security adviser.)

Flynn would be barred from continuing to act as a foreign agent after January 20, when he took office, and that offense (a felony) would not be able to be remedied—as Flynn has sought to do previously—with retroactive filings.

Finally, there’s the matter of what all of this means for President Trump, who famously asked then-FBI Director James Comey to back off of the Flynn investigation in the period before he then fired Comey. This request has always represented a grave matter, particularly in the context of President Trump’s larger set of interactions with law enforcement over time. It was, after all, a profound violation of the principle that the President does not direct law enforcement on investigative matters. It is, however, a far graver matter to the extent the investigation of Flynn involved potentially violent felonies. If Flynn is really suspected of involvement in a kidnapping plot, the question of what the President knew and when he knew it goes from being merely important to being acutely crucial.

The public needs to know what precisely President Trump was asking his FBI director when he said to him: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”