A three-judge panel of the U.S. Court of Appeals for the District of Columbia on June 24 ordered District Judge Emmet Sullivan to uphold the Justice Department’s motion to dismiss information in the federal case against Michael Flynn. The prosecution of President Trump’s former national security adviser appears to be something of a legal Lazarus, though: Jesus might not have anything to do with it, but it keeps coming back to life. It is difficult to recall a former government official who has been so relentlessly pursued, even after the DOJ itself moved to have the case thrown out. Even now, the final words of the last chapter in this saga may not yet have been written.
In a 2-1 decision, the appeals court, in a 38-page writ of mandamus, ruled that Sullivan had overstepped his constitutional authority by resisting the DOJ’s motion to dismiss. For the majority, Judge Neomi Rao wrote:
”In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority.”
In simple terms, Judge Sullivan had interfered with the executive branch’s right to decide whether to pursue federal charges, according to the appeals court panel.
To use the definition of the Cornell Law School, a writ of mandamus “is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.”
The Unraveling of the Flynn Case
Flynn was charged with lying to the FBI about contacts with foreign officials – specifically, his phone conversations with then-Russian Ambassador Sergey Kislyak. As the case dragged on, various documents that underpinned it were declassified, and they mostly painted a picture of a rogue FBI investigation that targeted, entrapped, and, finally, coerced Flynn to plead guilty to misleading investigators.
Internal documents from the FBI and Robert Mueller’s special counsel investigation into Russian interference in the 2016 election revealed several disturbing things about the Flynn case. The prosecution failed to turn over to Flynn’s defense team all the existing exculpatory evidence. The FBI in 2016 decided that no further investigation of Flynn was justified until the idea of going after the general for a Logan Act violation was floated. Then-FBI Director James Comey himself said that Flynn’s calls with Kislyak “appear legit.”
Peter Strzok wrote in his notes that Flynn was the subject of discussion between then-president Barack Obama and several other top administration officials, including Susan Rice and then-Vice President Joe Biden. Such a level of interest in a federal case from the highest tiers of the executive branch is, in itself, a matter of concern. If nothing else, it gives the impression that political pressure could have been exerted upon the Obama Justice Department to produce a conviction.
Publicly released documents show that prosecutors from Mueller’s special counsel threatened to investigate Flynn’s son, should the general refuse to plead guilty. Nevertheless, those who want to see the prosecution go forward maintain that, regardless of what has been said about the case, Flynn still lied to FBI agents. The DOJ argues, though, that the alleged lies were not material to the case – if, indeed, it could even be proven that Flynn’s statements were false:
“The Government is not persuaded that the January 24, 2017 interview [of Flynn] was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not [sic] believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”
Judge Sullivan, though, refused to defer to the DOJ and declined to dismiss the case against Flynn and went to extraordinary lengths to keep the proceeding on life-support. As Liberty Nation Legal Affairs Editor Scott Cosenza wrote:
“[Judge Sullivan] issued an order inviting the public to submit amicus briefs in the case …
[Amicus briefs] are seen in appellate cases – especially those heard by the Supreme Court – but are unheard of in criminal court cases at the district court level. If that weren’t bad enough, Judge Sullivan didn’t simply allow interested parties to submit briefs; he hired someone to write a brief in opposition to Flynn, the defendant.”
Desperation Setting In
Though purely speculative, it does appear that the case against Flynn was so fraught with problems and nefarious intent that Obama loyalists are nothing short of desperate to see the prosecution continue. Only this will deflect from or undermine the widely held suspicion that President Trump’s enemies saw Flynn as a threat to their schemes and needed to discredit him and remove him from the picture.
Dismissal of the case against Michael Flynn would be a crushing blow to Trump’s critics and, more seriously, could potentially lead to indictments of some of those involved in going after the general in the first place. Every avenue of continuation, then, will be explored, and the appeals court ruling itself will likely be appealed to the full court – unless Judge Sullivan relents and rules the case dismissed.
Read more from Graham J. Noble.