Osler's Razor

Yesterday, it was reported that lawyers for Michael Flynn, the former National Security Advisor to Donald Trump, were talking to members of Special Counsel Robert Mueller's team.  Some commentators treated this as a bombshell. They were right. It is a significant development.

However, a lot of the speculation about what was happening seemed a little off to me.  As a former federal prosecutor and someone who teaches criminal law, I knew that they were not simply "cutting a deal." 

The myth-- propagated by movies and television dramas-- is that when a key witness/potential defendant flips for the government the transaction is pretty simple. In this fictional world, the defense side asks for a deal based on a sentence or a reduced charge ("probation" or "manslaughter"). If the prosecution likes the offer, they accept the terms and then talk to their newest witness about what he knows.

That's not how it rolls in real life.

Think about it-- it would be stupid for the prosecution to agree to a deal before they know how much the witness knows, how clearly he can state his truth, and whether or not he is going to lie to them.

Instead, here is the routine prosecutors and defense attorneys follow when a potential defendant/witness like Flynn might flip:

1) The defense side will usually approach the government and signal a willingness to cooperate (sometimes this conversation is initiated by the government).

2) The two sides will schedule a "proffer of information." That is a meeting between the defendant, the defense attorney, the prosecutor and an agent (who can testify later if necessary). 

3) Next, the two sides will execute an agreement covering the terms of the proffer. This agreement is written out, and usually contained in a "Kastigar letter," (named after a Supreme Court case). Those terms will grant a type of limited use immunity. In other words, what the defendant says in the proffer session cannot be used directly against that defendant later; that is, they can't take him to trial and then use his admissions in the proffer to convict him. They can, however, use it for collateral purposes. The most important collateral purpose will be to impeach the defendant with his statement in the proffer session if he tells a different story later in the proceeding. That means that giving a proffer effectively bars the defendant from testifying on his own behalf later in most cases.

4)  The purpose of the proffer session is to allow the government to hear and assess the information the witness/defendant can offer. They listen not only to what the witness/defendant says, but how he says it. The proffer will start with "control questions": those are questions that the government already knows the answers to through other evidence. The witness/defendant, of course, may not know that they know this, though. If the witness/defendant lies on the control questions, that may well be the end of the proffer session-- or at least it will put the government on a stronger footing to demand more after they make clear what the lie was. The use of control questions means that any decent defense attorney will strongly advise a client that if they are going to give a proffer, they must do so honestly.

5) If the proffer session is promising to the government, they will then create a proposed plea agreement. That agreement, though, is contingent on the witness/defendant fulfilling all of his obligations to testify in the future. Sometimes, there is a variation on this-- the agreement is to give information, and the promise is only to make a general recommendation that this information be taken into account at sentencing. 

6)  The sentencing of the witness/defendant will often be delayed until all of his obligations-- including testifying against others-- are fulfilled.

This process gives a huge advantage to the prosecution, when it is played right. And it appears that Mueller is doing exactly that.

UPDATE: Flynn has now (as of 12/1/17) plead guilty to lying to the FBI (a violation of 18 U.S.C.  1001). The curious thing here is the low-level charge. My thoughts on that:

1) Often a prosecutor will charge a lot of counts then dismiss them later if the defendant cooperates. Mueller seems to be doing the opposite-- he is charging a low-level count and holding others in reserve in case Flynn violates the cooperation agreement (or is pardoned).

2) I suspect that Mueller has already gotten value out of Flynn through a proffer and possibly by putting him in front of a grand jury. If Flynn testified in front of a grand jury, that locks in his testimony in the future. Even if Flynn is pardoned by Trump, he can be called as a witness and held to his prior testimony. If he refuses to testify, he could be held in contempt. That's when the Arpaio pardon becomes an important precedent. 

3) Flynn was charged by an information, not an indictment-- meaning that he waived his right to a Grand Jury charge. That is a strong indicator that his plea is part of a broader agreement.