To that end, one of the obvious questions about Flynn’s fate right now is whether the belated FARA registration in March — the one that led to the awkwardness with The Hill — was itself complete. If it was not, Flynn faces potential criminal liability for being both late in disclosing his foreign relationships, as well as being less than forthcoming in his disclosures. (Importantly, Flynn’s potential contacts with Russian officials could also be part of this disclosure. He did not mention any relationship with Russian officials in his March filing.)
Even if Mueller’s team finds Flynn’s disclosures to be accurate, however, he could potentially be on the hook for a far different — and less technical — offense than Manafort and Gates. A separate provision makes it unlawful to hold public office while acting “as an agent of a foreign principal required to register under [FARA].” The natural question, then, is whether Flynn was still working with the same Turkish interests when he accepted the post of Trump’s national security advisor. If so, there’s no wiggle room; he committed a felony, full stop.
That’s why the new developments broken by The Wall Street Journal are potentially so significant for Flynn. However shady his dealings with the Turkish government may have been in the past, and however unethically he may have acted during the Trump campaign, his legal exposure may ultimately be determined by when the alleged conduct occurred.
In this context, the Gulen allegations are damning, not just because the timing puts it on the far side of the 2016 election (with the second meeting coming in December), but because it suggests Flynn was actively engaged in facilitating arrangements that would go into effect once he (and the Trump administration) were in office. Optically, ethically, politically and legally, that’s a meaningful step beyond the charges born from Mueller’s investigation to date.
Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus is on federal jurisdiction, constitutional law, and national security law. He is the co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast).