So a lot of people got up in arms last Thursday when the DOJ filed – completely out of the blue – a motion to dismiss the prosecution of former Trump National Security Adviser Mike Flynn for lying to the FBI in January, 2017. Never mind that Flynn admitted to the crime not once, but twice, in open court, or that he struck a cooperation deal for leniency in exchange for his knowledge, which he provided to the Mueller investigation and all of which which remains classified. This is really a long and sordid tale that requires a little background explanation to understand, but bear with me here, it’s worth it. I promise.
So let’s start at the beginning. Under §18 USC 1001, making false or fraudulent statements to a federal investigator is a crime, full stop. In Brogan v United States, 522 U.S. 398 (1998), the US Supreme Court held that “our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them.” People who have been convicted and sent to prison under this statute include Martha Stewart, Rod Blagojevich, Bernie Madoff, and Jeffrey Skilling. It’s really not a controversial or unusual statute in any way.
In November, 2016, following the surprise election of Donald Trump, both Barack Obama and Chris Christie (a Trump adviser) explicitly warned Trump about the danger of hiring Mike Flynn in a sensitive high-level position after his firing as head of the Defense Intelligence Agency in 2014. Notwithstanding, Trump hired Flynn as his National Security Adviser a few days later. On December 29, 2016, the outgoing Obama administration announced new economic sanctions against Russia and expelled 35 Russian diplomats (read: spies) in response to election interference in the previous month’s election. Ok, “sour grapes,” I hear you saying. Fine. Sour grapes it is. Whatever. But on that same day, Flynn received a phone call from Russian ambassador Sergei Kislyak, which was intercepted by US intelligence services, who routinely monitor communications of foreign ambassadors, and particularly Russians, for whom “diplomat” and “spy” tend to be synonymous.
The contents of this call were alarming enough to intelligence services that the matter was referred to the FBI and DOJ as part of an ongoing counterintelligence investigation of Flynn that had already been open for at least 4 months, and the contents of this call have never been made public to this day, although we have a pretty good idea what it was about. On January 24, the FBI interviewed Flynn about the call, and he denied having discussed the new sanctions with Kislyak. On January 26, Acting Attorney General Sally Yates met with new Vice-President Mike Pence and other officials to tell them that Flynn had lied about the call (because they had a transcript), and that his “underlying conduct” was “problematic” and that he was vulnerable to blackmail by the Russians because they knew he had lied. Four days later, Yates was fired. On February 8, all of this became public and on February 13, Flynn was fired by Trump for lying to the FBI. The following day, February 14, Trump had his infamous meeting with FBI Director James Comey in which he said, ” I hope you can see your way clear to letting this go, to letting Flynn go… he’s a good guy.”
Comey wouldn’t, and so Trump fired him on May 9, leading to the appointment of Robert Mueller as Special Counsel on May 16. Suffice it to say that Mueller wouldn’t let it go either, and Flynn was prosecuted under the statute. A few months later, Flynn agreed to a plea deal in which he would cooperate and provide information to the Mueller investigation in return for leniency, as well as an agreement not to prosecute his son, Michael G. Flynn for Foreign Agent Registration Act (FARA) violations. A year later, in December, 2018, Flynn’s cooperation deal was finished and the Office of the Special Counsel (OSC) filed a sentencing memorandum with the Court which said, “[Flynn] deserves credit for accepting responsibility in a timely fashion and substantially assisting the government” and should receive little or no jail time.
Let’s be absolutely clear about two things involving Flynn’s cooperation deal here. The first is that prosecutors don’t give this type of cooperation deal lightly or easily. Flipping defendants like this is a tactic that’s most commonly seen in organized crime cases where the prosecutors are after a much bigger fish, and they have high confidence that the defendant can provide useful information that they wouldn’t otherwise be able to get. If they think they can get the information some other way, or if they don’t believe the information will bring in a bigger fish, there is no deal. So the question becomes, “Who is a bigger fish than the National Security Adviser?” The second thing to understand is that for the OSC to go back to the judge and recommend no jail time means that whatever Flynn gave them was good. Really good.
So by all appearances, Flynn had it made. His deal was done and the prosecutors were recommending no jail time. What could be better, right? But then a remarkable thing happened – Flynn fired all his lawyers and started trying to withdraw his plea deal, claiming that the FBI tricked him into lying. Wait, what? What does that even mean? How do you “trick” somebody into lying to the FBI? Now, to be clear, the judge didn’t have to accept the sentencing recommendation of the prosecutors, but they typically do and there is no indication that Judge Sullivan wouldn’t have followed it, or if he did impose jail time, it most likely would have been very minimal. So what would possess a man on the verge of walking away a free man to do this? The only even halfway sensible explanation anyone has come up with is that he was making a calculated play for a presidential pardon.
Judge Sullivan was visibly irritated at these shenanigans and said so in open court. Citing classified evidence that was not available to the public, he brutally raked Flynn over the coals in open court, saying “Arguably, you sold out your country” and told Flynn that he was willing to proceed with sentencing as scheduled, but that Flynn almost certainly would not like it. As a result, Flynn’s case has been more or less in a holding pattern ever since with repeated sentencing delays because of the games being played by his lawyers.
Last December, Trump removed U.S. Attorney for D.C. Jessie Liu, who had been overseeing the case, from her position in favor of a Treasury position and replaced her with close Barr associate Timothy Shea as acting U.S Attorney. Then Barr announced that there would be “a review” of the Flynn case, and most legal observers saw the writing on the wall at that point. Right on cue, Barr’s appointed hatchet man, Jeffrey Jensen, recommended that all charges be dropped, and last week Shea filed a motion to dismiss the case. But there are a number of problems with the filing, so let’s walk through them.
The first and biggest problem is that the legal argument in the filing is mind-numbingly silly and insipid. It boils down to the proposition that the FBI never should have been investigating Flynn in the first place, and so he wouldn’t have lied if they hadn’t been questioning him. Yes, it really is that stupid. It makes about as much legal sense as dismissing a hit-and-run case because the kid who got run over should have been home in bed instead of out on his bike. The counterintelligence investigation of Flynn’s shady financial ties to Russia, Turkey, and Saudi Arabia had open since August of 2016 and was on the books to be closed in late December when the Kislyak phone call happened. Naturally, when new evidence comes to light, you add it to the investigation and look into it, but the DOJ’s argument is that the FBI should have ignored it and closed the case as was scheduled because Flynn did nothing wrong.
Of course, this argument hinges on what was in the transcript of the call between Flynn and Kislyak, and no one outside the FBI and DOJ has ever seen it, including the judge in the case. Last year, Judge Sullivan demanded to see it as part of the sentencing process, and the DOJ obliquely refused to provide it, saying it wasn’t relevant. What? So the judge never got it, and Shea still didn’t cite it or include it as an exhibit in the current filing, despite his entire legal argument hinging on it. Shea cited and included lots of other documents of varying relevance and misrepresented some of them entirely, but he left out the most critical exhibit. Why?
The other highly dubious argument for why the FBI shouldn’t have been investigating Flynn at that time that frequently gets passed around in right-wing news circles is that Flynn was being illegally surveilled by US intelligence services. They claim that because there was no FISA warrant to intercept Flynn’s calls, the interception of a U.S. citizen’s call was illegal. This is just bonkers, because Mike Flynn’s phone calls were not under surveillance. Sergei Kislyak’s were, because he is a known Russian spy and a long-standing legitimate target. Absolutely everyone he talked to was recorded, including Flynn. Flynn doesn’t get an exemption for his call because he is a U.S. citizen when he is on the phone with a known spy. If you want your calls to be private, don’t be on the phone with spies that you know – or should know – are being recorded. That’s the way it works.
The other big problem with the filing is procedural. It turns out that Shea didn’t even have the legal authority to make the filing to dismiss the case. Because he only has “acting” status and hasn’t been approved by the Senate, Shea isn’t authorized to make filings with the court, so he needs an Assistant U.S. Attorney to sign off on any filings in the case. There was no such AUSA signature on the filing, presumably because he couldn’t find anyone willing to sign off on this stunt. So Shea decided to file it himself anyway, but used Jessie Liu’s Bar number on the filing in the hope that no one would notice. Of course, this was caught right away, and then the DOJ tried to claim it was a “clerical error.” Shea has now found someone to sign off for him, but Judge Sullivan would still be within his rights to dismiss the motion on procedural grounds without even considering the argument because there are still other problems.
But Judge Sullivan decided to take a different approach, and it appears he is setting the stage to blow this whole thing up in public. On Tuesday, he made a highly unusual – possibly even unprecedented – move to publicly solicit submissions of amicus curiae (“friend of the court”) briefs in the Flynn case. That means that any member of the public – whether a party to the case or not – is welcome to submit a brief making a legal argument about the case, and it’s up to the judge’s discretion whether to accept it or not. Amicus briefs are common in civil cases, but are extremely rare in criminal cases. This is a strong signal that Judge Sullivan wants to hear from Sally Yates, James Comey, Andrew McCabe, and others who have been forced out about what they know, and I imagine he is probably looking for evidence of political corruption within the department.
Then on Wednesday, he went a step further and appointed former federal judge John Gleeson to represent the position of the original prosecutors and argue against the motion to dismiss. He also asked Gleeson to look into whether Flynn committed perjury when he admitted to crimes that he is now denying, because he has now made diametrically opposing statements to the Court. Judge Sullivan has essentially kicked the prosecution to the curb because he believes they are in cahoots with the defendant and appointed a new prosecutor in the case. This is probably unprecedented, but it’s also unprecedented for the DOJ to move to dismiss a case at sentencing in the way they have, so there you go.
The only thing I can say for certain is that this is going to be awfully interesting to watch unfold, because while there are certainly some judges on the federal bench who might roll over for this sort of stunt (paging Judge Ellis), Emmett Sullivan isn’t one of them. He is just about the last federal judge you want to play games with, and I can’t believe that Barr and Shea didn’t see this coming. The whole thing is blowing up in their faces, and this is going to be entertainment gold for legal observers.