What appear to be obscure details in a court filing against Paul Manafort, the former Trump campaign chairman, may actually provide clues about what’s next for another target in the special counsel’s Russia investigation: former national security adviser Michael Flynn.

Manafort and his business partner Rick Gates were charged late last month with a variety of crimes, including violation of the Foreign Agent Registration Act, or FARA, even though such a charge is rare. A 2016 Justice Department report found only seven FARA prosecutions in about half a century.


Like Manafort, Flynn belatedly registered as a foreign agent after coming under scrutiny by Justice Department prosecutors for activity by his consulting firm. Lawyers tracking the investigation said Flynn is unlikely to be charged with violating FARA unless, as with Manafort, special counsel Robert Mueller feels he can show the former national security adviser broke the rules in especially egregious ways.

“While criminal charges under FARA are not often brought,” the prosecutors wrote in the passage about why Manafort and Gates were charged with violating the statute, “the facts set forth in the indictment indicate the gravity of the violation at issue based on the dollar volume of earning from the violation, its longevity, its maintenance through creation of a sham entity designed to evade FARA’s requirements, and its continuation through lies to the FARA unit.”

Jeff Cramer, a former federal prosecutor, said: “It’s odd language to have in there. This language could be a precursor to explain any future FARA violation charge, especially Flynn. If Flynn didn’t exist, you wouldn’t need that language in there. … You wouldn’t have to go through a lot of the machinations.”

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Lobbying by Flynn, a retired Army general and former director of the Defense Intelligence Agency, could meet some but not all of the criteria prosecutors say led to the Manafort indictment.

For example, he eventually reported that his work advancing the interests of Turkey brought in $530,000 for his firm. Manafort and Gates, by contrast, brought in “tens of millions of dollars in income” for their work related to Ukraine, according to the indictment returned against them last month.

While prosecutors say Manafort and Gates acted as U.S. agents for Ukraine for nearly a decade, Flynn’s work with Turkey seems to have spanned just months. The general retired from the military in 2014 and doesn’t appear to have picked up the work that benefited Turkey until August 2016, after Donald Trump had been formally picked as the Republican presidential nominee.

But Flynn’s work could meet part of the Manafort standard that refers to a “sham entity” fronting for a foreign government.

In March of this year, Flynn’s attorney Robert Kelner filed the formal paperwork with the Justice Department reporting that Flynn Intelligence Group’s work for a Dutch company, Inovo BV, could be “construed” as being primarily for the benefit of the government of Turkey.

Flynn registered in September 2016 as a commercial lobbyist for Inovo, but had not previously revealed that the company was essentially acting as an intermediary for Turkey. A report filed with Congress in December about the commercial lobbying listed less than $5,000 in payments.

The work ended in November, as Flynn wound down his lobbying and consulting business to prepare to serve as national security adviser to the incoming president.

Whether Flynn or anyone acting on his behalf affirmatively lied to the Justice Department’s FARA office or investigators about the Turkey-related work is unclear.

Officials in Justice’s National Security Division reportedly wrote to him in late November, seeking more information on his activities that served Turkish interests. It’s not clear what statements he made to authorities about those issues before the retroactive registration was submitted on March 7.

Given the criteria set out in the Manafort filing, many lawyers say they expect that if Mueller moves against Flynn, it will involve more sensational charges than simply failing to file a lobbying registration — a charge that jurors might regard as technical even if it survived scrutiny from a judge.

“It sounds to me, if they really think they have a strong case, it will be on some other charges and they’ll tack on a FARA charge,” said Jan Baran of the Wiley Rein law firm. “There are questions about Flynn’s security clearance and his financial disclosures. … He may have lied to FBI agents before he even hired a law firm. Those are major potential exposures. Lying is just a lot easier to prove than any of these esoteric laws like FARA or lobbying.”

Or as Cramer, now with the investigation firm Berkeley Research Group, observed: “Plain vanilla doesn’t become so plain once you add on the lies.”

Sol Wisenberg, a former deputy to Whitewater independent counsel Ken Starr, said he did not see the recent filing as setting “a legal minimum” for a case against Flynn. But he said that as a matter of strategy and optics, he doubted that Mueller’s team would file a narrow case against the former national security adviser.

“My gut feeling, based on what they had with Manafort, is that if all they have with Flynn is a minor technical violation, they’re probably not going to charge him,” the ex-prosecutor said.

One eye-popping potential charge against Flynn that any juror could readily understand is kidnapping. Reports in The Wall Street Journal and elsewhere last week said Flynn attended meetings in September and November in which there was discussion of removing a Turkish dissident, Fethullah Gulen, from the United States, perhaps by force.

A sum of as much as $15 million was allegedly offered to arrange Gulen’s delivery to the government of Turkish President Recep Tayyip Erdogan. The alleged kidnapping plot was never carried out, but legal experts said charges could be brought under conspiracy laws if any substantial step was taken toward forcibly snatching the dissident.

Kelner did not respond to messages seeking comment for this article, but he did issue a statement last week denying as “false” and “outrageous” the reports about Flynn’s involvement in a kidnapping plot.

If prosecutors cut a plea with Flynn, it’s possible the FARA charge could emerge as a relatively mild offense for him to plead guilty to, although it’s still a felony that carries a potential term of up to five years in prison.

Some experts in the foreign lobbying statute said the Mueller filing statement on what made Manafort’s case suitable for prosecution was notable even apart from Flynn’s situation because the Justice Department has never made clear what sorts of factors could trigger a prosecution.

“It’s interesting to me,” said Scott McGriff, a former Justice Department official now with the law firm Dickinson Wright. “FARA prosecutions are few and far between, so there’s not a well-developed sense of case law out there in terms of how the government is looking at what’s going to be the basis for a prosecution going forward. … He’s trying to set out some of the guideposts they look at.”

How much weight the Mueller team’s views on FARA should be given is unclear, however, since the special counsel is largely independent of the normal Justice Department processes.

Whatever Mueller’s prosecutors intended in laying out their criteria for a FARA prosecution of Manafort, Justice Department veterans said they were confident that it wasn’t an accident and that members of the team had given full consideration to how it would apply in any future cases.

“I think what’s being filed and what’s being said is exactly what the special counsel would like to be said,” McGriff added. “I don’t think any of it’s a mistake.”

