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Judge Sullivan Finally Dismissed the Michael Flynn Case, But Not Without Taking Some Parting Shots


Michael Flynn

U.S. District Judge Emmet Sullivan on Tuesday dismissed the years-long criminal case against President Donald Trump’s former National Security Advisor and retired Lt. Gen. Michael Flynn, ruling that the case was moot given an expansive presidential pardon.

Sullivan decided to point out that a pardon “does not necessarily render” a defendant “innocent,” and said the “scope” of the Flynn pardon is “extraordinarily broad.”

On the other hand, a pardon does not necessarily render “innocent” a defendant of any alleged violation of the law. Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a “confession” of guilt. See Burdick, 236 U.S. at 94 (“[A pardon] carries an imputation of guilt; acceptance a confession of it.”); see also United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir. 2001) (“[A]cceptance of a pardon may imply a confession of guilt.” (citing In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994)). As Chief Justice Marshall wrote, “[a] pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. 150, 150 (1833) (emphasis added). In other words, “a pardon does not blot out guilt or expunge a judgment of conviction.”


Here, the scope of the pardon is extraordinarily broad – it applies not only to the false statements offense to which Mr. Flynn twice pled guilty in this case, but also purports to apply to “any and all possible offenses” that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. However, the Court need only consider the pardon insofar as it applies to the offense to which Mr. Flynn twice pled guilty in this case. Mr. Flynn has accepted President Trump’s “full and unconditional pardon.” See Consent Mot. Dismiss, ECF No. 308 at 2. The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot. However, the pardon “does not, standing alone, render [Mr. Flynn] innocent of the alleged violation” of 18 U.S.C. § 1001(a)(2). Schaffer, 240 F.3d at 38. Accordingly, in view of the Supreme Court’s expansive view of the presidential pardon power, the Court grants the consent motion to dismiss this case as moot.

The DOJ previously filed the Flynn pardon in Sullivan’s court, noting that the pardon covered any perjury or contempt charges that Judge Sullivan’s court-appointed amicus John Gleeson argued in favor of during drawn out proceedings over the Rule 48(a) “leave of court” issue after the DOJ-Flynn joint motion to dismiss the criminal case. We will return to Rule 48(a) analysis in a moment because Sullivan spent a lot of time on it.

The “full and unconditional” pardon also insulates Flynn from being prosecuted for “any and all possible offenses” uncovered during Special Counsel Robert Mueller’s investigation.

The words “any and all possible offenses” appeared multiple times in the pardon.

Flynn previously pleaded guilty to lying to the FBI about his conversations with Russian Ambassador Sergey Kislyak on the subject of sanctions during the transition in late 2016. Flynn was never sentenced. Instead, Flynn fired his lawyers, hired Sidney Powell, and moved to withdraw his plea—claiming that the prosecution had withheld exculpatory evidence and that the FBI had entrapped him. Eventually, the Department of Justice and Flynn’s legal team became one and the same: the prosecution and defense agreed that there should be no criminal case.

Judge Sullivan, rather than immediately granting the motion to dismiss, appointed Gleeson, a former mob prosecutor, to argue against the dismissal of the case and to argue whether Flynn should be held in contempt for perjury. Gleeson said, in straightforward fashion, that Flynn perjured himself and ought to be punished for it.

Over the summer, the case ping-ponged from the U.S. District Court for the District of Columbia to the U.S. Court of Appeals for the District of Columbia Circuit to the en banc D.C. Circuit and back down to the district court again for more fireworks.

“I’m from Brooklyn, not for nothing, but this crime was committed in the West Wing,” Gleeson erupted during a virtual hearing in late September.

In advance of a much-anticipated Judge Sullivan ruling on the motion to dismiss, President Trump pardoned Flynn. This brings us to today.

Sullivan still discussed Rule 48(a) at length on Tuesday, and revealed that he was not persuaded by many of the government’s arguments, which he said “appeared pretextual.”

Ultimately, Sullivan concluded that the “application of Rule 48(a) to the facts of this case presents a close question.” But given the pardon, Sullivan said, the “appropriate resolution is to deny as moot the government’s motion to dismiss pursuant to Rule 48(a).”

Sullivan said a lot of things that suggest how he might have ruled, however, and the judge took some parting shots.

Sullivan unconvinced by DOJ argument that if it is executive branch’s view that a case should be dismissed, and not just the view of an individual and “rogue” prosecutor, that this indicates the dismissal is in the public interest.

At the September 29, 2020 motion hearing, the government emphasized a different aspect of its argument. It conceded that the Court should not act as a rubber stamp and that it has a role to play when presented with an unopposed Rule 48(a) motion. Hr’g Tr., ECF No. 266 at 40:9-12. But, in the government’s view, this role is limited to determining whether “the decision to dismiss is the considered view, the authoritative view of the Executive Branch as a whole,” id.; rather than being the “rogue” decision of an individual prosecutor, id. at 99:16-23.7 The government argued that this standard appropriately reconciles the concerns about favoritism and pretext that led to the “leave of court” language in the Rule with the separation of powers principal that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

The Court is not persuaded by the government’s argument, however, because it fails to acknowledge the possibility that the “considered view of the Executive Branch as a whole” could be contrary to the public interest.

Sullivan “persuaded” that the court “has discretion to consider the unopposed Rule 48(a) motion before it.”

With the above principles in mind, in response to the government’s motion to dismiss under Rule 48(a), the Court holds that a judge may deny an unopposed Rule 48(a) motion if, after an examination of the record, (1) she is not “satisfied that the reasons advanced for the proposed dismissal are substantial”; or (2) she finds that the prosecutor has otherwise “abused his discretion.” Ammidown, 497 F.2d at 620-22.

Many of the government’s arguments in favor of dismissal “appear pretextual”; President Trump’s interest in the case should not be ignored.

However, while not conclusory, many of the government’s reasons for why it has decided to reverse course and seek dismissal in this case appear pretextual, particularly in view of the surrounding circumstances. For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case. According to Mr. Gleeson, between March 2017 and June 2020, President Trump tweeted or retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF No. 225 at 66. This commentary has “made clear that the President has been closely following the proceedings, is personally invested in ensuring that [Mr.] Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted [Mr.] Flynn.” Id.

Sullivan recalls that Sidney Powell admitted speaking with Trump about the case, but that she said she only did that so he wouldn’t pardon Flynn. Then the pardon happened.

At the September 29, 2020 motion hearing, Mr. Flynn’s counsel, in response to the Court’s question, stated that she had, within weeks of the proceeding, provided the President with a brief update on the status of the litigation. Hr’g Tr., ECF No. 266 at 56:18-20. Counsel further stated that she requested that the President not issue a pardon. Id. at 56:23-24. However, the President has now pardoned Mr. Flynn for the actions that instigated this case, among other things. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. And simultaneous to the President’s “running commentary,” many of the President’s remarks have also been viewed as suggesting a breakdown in the “traditional independence of the Justice Department from the President.” See, e.g., Amicus Br., ECF No. 225 at 67-68; id. at 68 (quoting Excerpts from Trump’s Interview with the Times, N.Y. Times (Dec. 28, 2017), interview-excerpts.html) (reporting President Trump’s statement that he enjoys the “absolute right to do what I want to do with the Justice Department”).

This raises some questions about motives, and Sullivan didn’t exactly embrace DOJ’s “stated rationales” regarding the lack of materiality and ability to prove falsity of Flynn’s statements—which the judge called “dubious to say the least.”

Given this context, the new legal positions the government took in its Rule 48(a) motion and at the motion hearing raise questions regarding its motives in moving to dismiss. The government advances two primary reasons justifying dismissing the case based on its assessment of the strength of the case: (1) it would be difficult to prove the materiality of Mr. Flynn’s false statements beyond a reasonable doubt; and (2) it would be difficult to prove the falsity of those statements beyond a reasonable doubt. See Gov’t’s Reply, ECF No. 227 at 31. As explained below, the Court finds both stated rationales dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.

Sullivan noted the DOJ’s selective reversal on the materiality element of the false statements crime just for the Flynn case.

Given the materiality threshold’s expansive scope, the government’s new use of the narrowed definition of “materiality” is perplexing, particularly given that the government has previously argued in this case that the materiality standard required only that a statement have a “natural tendency to influence, or [be] capable of influencing.”

The government, for its part, offers no response as to why it relies on this new, more stringent definition. Nor does the government direct the Court’s attention to any other case in which it has advanced this highly-constrained interpretation of materiality as applied to a false statements case.

More pretext.

Accordingly, the Court will briefly address some of the evidence the government points to as it is troubled by the apparently pretextual nature of certain aspects of the government’s ever-evolving justifications

Judge Sullivan said the government never explained how evidence that was previously viewed as “consistent and clear” became “equivocal” or “indirect.”

As an initial matter, whether or not the FBI agents thought Mr. Flynn was lying is irrelevant in a false statements case. See Brogan v. United States, 522 U.S. 398, 402 (1998). And the government has not explained how evidence that the government previously stated was “consistent and clear,” Gov’t’s Surreply, ECF No. 132 at 4-5; suddenly became “equivocal” or “indirect.” With regard to the “inconsistent records” rationale, the government has not pointed to evidence in the record in this case that contradicts the FD-302 that memorialized the FBI agents’ interview with Mr. Flynn. Furthermore, the government’s reliance on Director Comey’s opinion about whether Mr. Flynn lied is suspect given that Director Comey was not present at the interview and that there are valid questions regarding the admissibility of his personal opinion.

Sullivan really didn’t buy the idea advanced by the government that National Security Advisor Flynn was just some guy who had a faulty memory, and that’s why Flynn forgot asking the Russian Ambassador for a favor that undermined then-President Barack Obama’s policy. Sullivan also dismissed the “get him to lie” narrative, and he said the DOJ “ignored […] powerful evidence” of Flynn admissions that were not used at trial due to the cooperation agreement of old.

With regard to Mr. Flynn’s alleged “faulty memory,” Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office. With regard to the government’s concerns about the Assistant Director for Counter Intelligence’s contemplating the goal of the interview, an objective interpretation of the notes in their entirety does not call into question the legitimacy of the interview. Finally, and critically, under the terms of Mr. Flynn’s cooperation agreement, the government could have used his admissions at trial, see Plea Agreement, ECF No. 3 at 8 ¶ 11; but the government ignores this powerful evidence.

Read the Sullivan dismissal and the official language of the Flynn pardon ruling below:

[Image via Alex Wroblewski/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.