Michael Dorf: Why Flynn Was Fired Is the Key to the Russia Plot

This article first appeared on the Dorf on Law site.

In a classic Seinfeld clip, George Costanza reminds Jerry that "it's not a lie if you believe it."

With this bit of wisdom in mind, the (apparently forced) resignation of National Security Adviser Michael Flynn on Monday night presents difficulties for the official story that Trump lost the ability to trust Flynn because of Flynn's lying to Vice President Mike Pence, which led Pence to state untruths to the media.

For one thing, as White House press secretary Sean Spicer confirmed on Tuesday, President Trump had already known two weeks earlier that Flynn had dissembled when he told Pence he had not discussed lifting sanctions with the Russian ambassador during the transition.

Thus, it appears that Flynn was not let go because he lied to Vice President Pence. Rather, as confirmed by the Tweeter in Chief on the morning after Flynn's resignation, apparently Flynn was let go because the public found out that Flynn had lied to Pence.

Why else would Trump think that leaks, rather than lying or worse by his national security adviser, are the "real story" regarding national security?

02_16_Trump_Flynn_01 Vice President Mike Pence shakes hands with former National Security Adviser Michael Flynn at the White House on February 10. Michael Dorf writes that Flynn may simply be a fall guy. He's not innocent, but he also didn't act alone—and his assurances to the Russian ambassador were only the tip of a much larger iceberg of collusion with a foreign power by the Trump campaign and later by the White House staff. Mario Tama/Getty

To be sure, Spicer also claimed that the White House had been evaluating Flynn's ability to continue serving "on a daily basis" for some time. This claim contradicts most of the reality—including the prominent role that Flynn had played in the Trump national security team right up until his resignation. It is also not credible on face value.

Anyway, why would lying to Pence be such a terrible offense in this White House? Trump himself lies constantly, and he praises people who lie on his behalf.

Is Pence different? Well, in some obvious sense, of course. Pence is a conventional, albeit very conservative, politician, one who is not above stretching the truth in the manner of nearly all politicians, but not someone who, prior to his association with Trump, was known as especially dishonest.

The key here is the qualifier "prior to his association with Trump." Think back to the vice presidential debate between Pence and Senator Tim Kaine.

According to most accounts, Pence "won" the debate by being less hyper than Kaine and not interrupting as much as Kaine did. But he also won by lying a whole lot, often by describing as "nonsense" Kaine's claims that Trump had said things that everyone knew Trump had in fact said.

If Pence was willing to tell obvious lies for Trump, why should he or anyone else on Team Trump be upset about the fact that, as a result of Flynn's lie to Pence, Pence ended up unknowingly making a false statement in reliance on what Flynn had told him.

Costanza's aphorism is funny because he implied that a liar could turn himself into a non-liar simply by willing himself to believe what he knows to be false. However, when someone really doesn't know that what he says is false, he can't be lying; he can only be mistaken.

So why was Flynn really forced out? Let's consider a few possibilities.

(1) Let's begin with the cover story. It states that the problem wasn't that Flynn's lie had led Pence to make an inadvertently false statement; rather, the problem was that Pence and Trump learned that they can't trust Flynn to be honest with them.

This is superficially plausible. Although Trump is a pathological liar, he might nonetheless demand that his advisers only lie for him, never to him. Note that this explanation would require that we dismiss as self-serving Flynn's own claim—in his resignation letter—that he had inadvertently misinformed Pence about the content of his conversation with the Russian ambassador.

However, this theory is only superficially plausible because of the timing. As noted above, Trump and Pence appear to have been untroubled by Flynn's dissembling until the public found out about it.

(2) So maybe Flynn was let go because of his wrongdoing. The Logan Act is the most obvious statute for a law violation, but it is not even clear that it applies to a member of the presidential transition team and it has never actually been enforced.

I find it hard to believe that Trump was troubled by this—and again, the timing is problematic here too. Moreover, yesterday Spicer insisted that in talking to the Russians about lifting sanctions, Flynn "did nothing wrong."

(3) Another possibility is that Flynn was getting pressure to resign from the FBI, the CIA, and/or others in the national security establishment. They may have had more dirt on him. This scenario strikes me as possible.

If true, it would also be very troubling. Even though Flynn was a terrible choice for national security adviser—given his bigoted views of Muslims, his poor management skills and his penchant for believing unfounded conspiracy theories—national security professionals should not be blackmailing White House staff or others in government.

(4) The most ominous possibility, of course, is that Flynn is simply a fall guy. He's not innocent in this view, but he also didn't act alone—and his assurances to the Russian ambassador were only the tip of a much larger iceberg of collusion with a foreign power by the Trump campaign, and later the White House staff.

That's the story the FBI has been investigating for months. Look for journalists to keep digging and leakers to keep leaking.

Bottom line: If Flynn was in fact pushed out to take the heat off of Trump and/or others for contacts with the Russians during the campaign, the tactic almost certainly will fail.

Trump would undoubtedly like to change the subject, but for some time now, many in the press corps—likely abetted by leakers within the national security apparatus, and maybe even the White House—will be asking the question that is dominating headlines this morning: What did the president know and when did he know it?

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at dorfonlaw.org.

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