Did Trump Just Incriminate Himself by Saying He Knew Flynn Lied to the FBI?

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One day after Michael Flynn pleaded guilty to lying to the FBI, President Trump seemed to confess that he already knew about that when he fired Flynn back on February 13 — and may have now incriminated himself by doing so.

Trump had originally said that he forced his former national security adviser to resign because Flynn had lied to Vice-President Mike Pence about a December conversation with Russian ambassador Sergey Kislyak. On Saturday, Trump explained that he also did so because Flynn lied to the FBI:

Lying to Mike Pence or the FBI is undoubtedly a fireable offense, but only one of them is a crime, and that’s a crucial distinction when considering what Trump did the day after Flynn’s ouster. Former FBI director James Comey testified before Congress that on February 14, President Trump took him aside and told him that Flynn had done nothing wrong in speaking with the Russians and that he had fired him for misleading Pence. The FBI was already investigating Flynn at that point, and Trump told Comey that, “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.”

Comey didn’t let it go, and though he didn’t testify as to whether or not he believed Trump was trying to obstruct justice, he did make it clear that he thought the president was trying to tell him what to do. Trump eventually fired Comey, of course, and cited his disapproval with the FBI’s investigation into Russia’s election-meddling as part of his rationale.

According to Comey’s testimony, Trump told him he believed Flynn had done nothing illegal. According to Trump’s tweet on Saturday, that might not have been true, and thus Trump might have been trying to get the director of the FBI to look the other way regarding a crime by a top White House official.

Now, Trump says — and especially tweets — a lot of stupid and/or demonstrably wrong things, so it’s possible that Trump’s Flynn tweet was just some misguided attempt to retroactively update his good judgment to fire Flynn. On the other hand, Trump’s tweets are now regularly treated as official statements by both the White House and the judicial system — so Trump might have some trouble walking this statement back, should Mueller and his investigators choose to focus on it.

Legal experts who spoke with the Toronto Star’s Daniel Dale were already flagging the tweet on Saturday:

“The question of whether Trump committed obstruction of justice when he asked Comey to drop the investigation on Valentine’s Day will largely turn on Trump’s intent: was he just trying to put in a good word for Flynn, or was he in fact trying to end a criminal investigation?” [Harvard Law professor and former federal prosecutor Alex] Whiting said in an email. “If he genuinely believed that Flynn did nothing wrong, that tends to support the former interpretation. But if, as he now admits, he knew that Flynn had lied to the FBI, a federal crime, then he knew that by asking Comey to drop the investigation, he was seeking to end a meritorious criminal investigation.”

Others said that the tweet itself wasn’t enough to prove obstruction, but might have laid the breadcrumbs to more evidence that could.

Adding to the confusion that typically follows Trump’s remarks, the Washington Post subsequently reported on Saturday that Trump’s personal lawyer, John Dowd, said he was responsible for crafting the Flynn tweet. If that’s true — and it’s not at all clear why any competent lawyer would put those words in Trump’s mouth — the president could conceivably pass the blame.

However, the White House hasn’t retracted Trump’s statement or deleted the tweet, which you’d think they’d do if a staffer screwed up a tweet he had written while pretending to be the president. Trump’s tweets have been deleted and replaced before, after all. Instead, the White House tried to soften the impact by claiming that the president’s tweet was just acknowledging Flynn’s plea, not admitting prior knowledge. Along those lines, Dowd unconvincingly told the Post that the tweet was paraphrasing a statement from another White House lawyer, Ty Cobb, who said on Friday that Flynn’s false statements to the FBI “mirror the false statements to White House officials which resulted in his resignation.”

According to the Post, “two people close to the administration described the tweet simply as sloppy and unfortunate.” Here’s some word-choice sleuthing, too:

(If you want more linguistic analysis of the tweet, Ben Zimmer collected some for the Atlantic.)

So Dowd is trying to take the blame, but that’s awfully convenient cover for one of Trump’s more legally precarious tweets, and lawyers aren’t usually “sloppy” when it comes to statements that might incriminate their clients.

And looking back at the timeline of Flynn’s FBI interview and firing, it is indeed possible that Trump knew, as of the Comey meeting on February 14, that Flynn had lied to the FBI during his January 24 interview.

Flynn’s possibly criminal lies didn’t become public knowledge until that news was leaked to the media on February 16. But two days after Flynn was interviewed by the FBI, former Acting Attorney General Sally Yates was alarmed enough by what she’d learned to warn White House counsel Don McGahn that Flynn might have compromised himself by misleading Pence. McGahn then followed up with Yates a day later to inquire as to what criminal statutes might apply to Flynn. According to two sources who spoke with the New York Times, McGahn apparently briefed the president on the matter, telling Trump “that it was his impression from Ms. Yates that the federal authorities were not pursuing a case against Mr. Flynn for lying to the F.B.I.,” but it was not clear if Trump understood that to mean that Flynn had been cleared. (McGahn, who has since tried to blame Yates for his ignorance, was reportedly interviewed by Mueller’s investigators on Thursday.)

Either way, since Trump tried to pressure Comey to drop the investigation, the president surely understood that the FBI believed Flynn may have committed a crime, even if he didn’t explicitly understand at the time what that crime was.

What, if anything, Mueller decides to do with Trump’s Flynn tweet remains to be seen, but considering Trump’s propensity to spout off against the wishes of his advisers and lawyers — and the White House’s propensity to obfuscate in the aftermath — it’s difficult to believe the tweet was anything better than an incompetent mistake. At worst, Trump just acknowledged he knew Flynn committed a crime and inadvertently admitted he tried to cover it up.

We don’t even know what Flynn will reveal now that he is cooperating with Mueller, but Trump and the White House already appear to be making unforced errors as a result.

This post has been updated to include additional analysis.

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