Judge Sullivan should be careful what he asks for

The latest development in the persecution of Michael Flynn was Judge Sullivan's unusual order reacting to the DOJ motion to dismiss.  As the DOJ establishes, a decision to drop a prosecution is a prerogative of the Executive Branch, so a judge's role is limited.  He should establish that the dismissal is requested not to harass the defendant and then sign off.

Instead, Sullivan opened the door to amicus briefs in opposition to dismissal and then appointed an outside party to argue the point and to argue, as well, that Flynn should be held in contempt of court for perjury because he said he was guilty when he was actually innocent.  (Or perhaps Sullivan intends to charge him for claiming innocence — it is a bit murky.) 

It is unlikely that this effort to extend things will go on too long.  The DOJ and Flynn can request a writ of mandamus from an appellate court holding Sullivan to his duty, and there is square precedent that mandamus is proper in a matter such as this one.

But suppose the case does go on, with extensive briefs and a consideration of a perjury charge against Flynn.  It is unlikely to develop as Sullivan seems to think it will.

The DOJ motion to dismiss was carefully crafted.

First, it said that, even assuming that Flynn did mislead the FBI about his conversation with Russian ambassador Kislyak, it was not "material," which is a required element of the offense.  Because no valid investigation existed, there was nothing to which his statement could be obstructive, especially because the FBI already knew exactly what was said.

Second, even if materiality were conceded, the government would have great trouble proving either that Flynn made inaccurate statements or that he did so deliberately.  The proof would consist of the FBI FD-302 documenting the interview and the testimony of the interviewing agents.  In this case, the FBI lost the original 302 and would have to rely on later versions that had been edited by people not even present at Flynn's interview, and the interviewing agents did not think he had lied.  The government has never produced either the recording of the call or a transcript, so in fact we know neither what was actually said nor what the FBI says was said.

Back in the old Watergate days, this DOJ motion would be called the "modified limited hangout" — 'fessing up to a few bad facts while obscuring more damning information.

Whether A.G. Barr's motive is to protect the FBI and DOJ from institutional damage or to save things up for Durham's investigation is an open question.  But if the case persists, here are some issues that will be aired:

  • Flynn will argue that he was coerced into a guilty plea by financial pressures and threats to charge him and family members with additional serious crimes.  The criminal law is not sympathetic to the defense of duress in the absence of threats of physical harm, but the whole panoply of bad acts by the prosecutors and other parts of the government would be revealed.  Flynn's lawyer, Sidney Powell, would also renew her argument that the case should be dismissed because of the government's bad conduct, something that Sullivan has avoided ruling on.
  • If Sullivan were to hold Flynn in contempt for pleading guilty and for testifying in court that the plea was voluntary, an inescapable corollary is that the prosecutors are guilty of suborning perjury.
  • Powell has contended that the prosecution was not revealing all the exculpatory material that it was required to reveal, in violation of both its constitutional duties and Judge Sullivan's specific orders.  The judge has denied these requests, especially in an angry opinion in December 2019.  The recent revelations by DOJ contradict many of the factual representations made by the prosecutors that Sullivan used to justify this decision.  In short, he now looks like a bit of a fool, and further proceedings will only intensify this.
  • Powell has also raised serious issues about the quality of representation provided Flynn by the law firm Covington & Burling.  While C&B has turned over thousands of pages of documents, it keeps finding more, and it has not turned over any material from the files of Eric Holder or Michael Chertoff, senior partners and former cabinet officers (under Obama and Bush, respectively), who were involved in Flynn's case.  Given Holder's depiction of himself as "Obama's wingman" and the numerous problematic decisions by the firm as described by Powell, serious questions arise about which side the firm was really on.  Airing this might not benefit C&B, or the Big Law department of the D.C. swamp generally.
  • One theory of the Flynn affair is that that Deep State intelligence officers and Obama officials have a grudge against Flynn from his tenure as head of the Defense Intelligence Agency, before he was fired by Obama, reinforced by fear that he would be in a position to expose their vendetta against Trump.  The pending prosecution has kept him quiet, but Sullivan has made clear his strong bias against Flynn, so the latter has no more reason to be careful not to irk the judge.  If the case turns into a free-for-all, then Powell may tell her client to take off the gloves.    

So, better late than never, Judge Sullivan should ask himself if he really wants to open up this circus.  As St. Teresa said, more tears are shed over answered prayers than unanswered ones.

James V DeLong is a retired lawyer, government official, and think-tank analyst.

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