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Flynn as cooperator a risk to Trump, legal experts say

Neil Weinberg, Tom Schoenberg and Margaret Talev
Bloomberg News

Washington — The prospect of Michael Flynn’s cooperation with federal prosecutors raises the possibility of new lines of inquiry and potentially valuable evidence in special counsel Robert Mueller’s investigation of Russian interference in the 2016 elections, legal experts said.

Lawyers for Flynn, who was fired as national security adviser in February, have stopped sharing information with President Donald Trump’s lawyers about the special counsel’s investigation, two people familiar with the probe have said.

While it’s possible that Flynn’s team made the move independently for strategic reasons, legal experts said it appears likely he has entered into discussions of some kind with Mueller’s team that have caused his interests to diverge from Trump’s.

“Clearly, Flynn’s making a break from the president, and by doing so he’s signaling that he’s putting his interests first,” said Michael Weinstein, a former Justice Department prosecutor and trial attorney.

That may be a bad sign for the president and some of his close associates, Weinstein said. “At a minimum, Flynn could provide testimony. But more importantly, he could provide a road map to Mueller about where to look for more information. It could involve conference rooms, email, locations, individuals who were at meetings and travel records,” he said.

“If he was party to any discussions,” Weinstein said, “he’d likely be able to point investigators toward concrete evidence that would help Mueller put the pieces together.”

Attorneys for Flynn, who served as a senior Trump campaign adviser prior to his stint inside the administration, advised the White House of the decision shortly before Thanksgiving, the two people said. The move has been anticipated by the president’s lawyers for weeks and doesn’t necessarily mean Flynn holds any information damaging to the president.

A lawyer for Flynn declined to comment on Thursday, as did lawyers for the president.

Flynn initially drew scrutiny for a secret meeting that he and Jared Kushner, Trump’s son-in-law and senior adviser, had with Ambassador Sergey Kislyak of Russia last December in Trump Tower. Agents for the Federal Bureau of Investigation later asked Flynn in January whether he had talked with Kislyak about sanctions imposed by President Barack Obama in retaliation for Russia’s election meddling.

He has since become a focus of Mueller’s investigation into whether the campaign had any links with Russian attempts to interfere with the 2016 election. Democrats have raised questions about Flynn’s contacts with the Russian government before the campaign.

Under joint-defense or common-interest agreements, attorney-client privilege is extended to communication and collaboration among lawyers for different parties. Such agreements can be verbal or in writing and in some cases require each party involved to formally notify the others if it agrees to cooperate with the government.

Even in cases where it’s not explicitly required, defense attorneys involved in common investigations routinely notify one another if they decide to cooperate with prosecutors as a matter of professional ethics and to avoid conflicts of interest, said Raymond Banoun, a former Justice Department prosecutor in Washington.

“This situation with Flynn isn’t surprising,” Banoun said. Subjects in criminal probes “commonly cooperate and ask each other ‘Have you been called in? What’s the government asking?’ You hold discussions because you want to know what prosecutors are doing.

“The only time you stop cooperating,” Banoun said, “is if the circumstances and relationships have changed and it creates a different ethical obligation. Or if the government says ‘You’re either in our camp or the other camp.’”

Beyond Russia, Flynn has come under scrutiny over the nature of his paid work for Turkey, including during the presidential campaign. His son, who worked for him, also has come under legal examination.

In one case, his consulting firm received $530,000 from Inovo BV, a Dutch company working on behalf of Turkey’s government, to lobby the U.S. for extradition of a dissident cleric.

Flynn didn’t disclose those contacts and payments, as required, when applying for his security clearance to work in the Trump White House, even though several of his clients worked on behalf of the Russian and Turkish governments.

Mueller last month unveiled the first indictments resulting from his investigation. Former Trump campaign chairman Paul Manafort and inaugural planner Rick Gates were charged on multiple counts of money laundering and illegal foreign lobbying. A foreign policy adviser to Trump’s campaign, George Papadopoulos, pleaded guilty on Oct. 5 to lying to investigators in a document that was made public the same day that Manafort and Gates were charged.