Government

Judge Sullivan: Flynn Walks, Barr Stinks, Take That Pardon And GTFO Of My Courtroom

Sometimes you eat the bear, sometimes the bear eats you.

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(Photo by Alex Wroblewski/Getty Images)

U.S. District Judge Emmet Sullivan is not so much with that “not with a bang, but with a whimper” stuff. If President Trump and Attorney General Bill Barr want to whip up a get-out-of-jail-free card for Michael Flynn, the court can’t stop them. But they, in turn, cannot stop Judge Sullivan from pointing out the rank, swamp gas odor of corruption emanating from every part of this case since Bill Barr interceded to blow up the prosecution.

Yesterday the court denied the government’s motion to dismiss the case against Flynn based on Rule 48(a), but granted the consent motion to dismiss, since the prosecution is now mooted by the president’s post-election pardon.

“Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot,” Judge Sullivan wrote, but with the caveat that “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.”

Indeed, the opinion notes that Flynn confessed multiple times under oath to his guilt on the charge of lying to the FBI and to the additional, uncharged illegal failure to register as an agent of a foreign government.

But Judge Sullivan’s harshest criticism is directed at the Justice Department, which decided more than two years after Flynn signed the first plea agreement that his lies to the FBI weren’t actually material after all and, oh, hey, maybe Flynn didn’t even know he was lying anyway. Maybe he just forgot that he’d called the Russian ambassador up on December 29 and promised that Donald Trump would undo Obama’s sanctions after the inauguration. Sure, the call had been the subject of reports in the Washington Post and the Wall Street Journal, but it could have just slipped the poor National Security Advisor’s mind when those scary FBI agents asked him about it all those long months later on <checks notes> January 22.

Or, as Judge Sullivan puts it:

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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.

So much for the government’s belated realization that it was “doubtful that it could prove the falsity of Mr. Flynn’s statements.”

As to the DOJ’s contention that Flynn’s lies, if that’s what they were, were immaterial, Judge Sullivan notes drily that “the government relies on a newly-minted definition of ‘materiality’ that is more circumscribed than the standard in this Circuit.” Would that every defendant charged with violating 18 U.S. Code § 1001 could avail himself of such a generous definition of materiality, but judging by the Justice Department’s treatment of FBI lawyer Kevin Clinesmith, this seems like a ticket good for one ride only.

Judge Sullivan is not having it with the government’s change of heart after months of declaring that Flynn’s lies actively hampered the Mueller investigation.

In view of the government’s previous argument in this case that Mr. Flynn’s false statements were “absolutely material” because his false statements “went to the heart” of the FBI’s investigation, the government’s about-face, without explanation, raises concerns about the regularity of its decision-making process.

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The word “pretextual” appears in the opinion multiple times, with the court expressing heavy skepticism that President Trump’s constant tweeting about Flynn and discussion of the case with Flynn’s new lawyer Sidney Powell had nothing whatsoever to do with the DOJ’s changed position.

“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,” Judge Sullivan wrote, adding later, “Where, as here, the government justifies its motion by ignoring applicable law to now question the strength of its case, substantial doubt arises about the government’s stated reasons for seeking dismissal.”

Apparently Judge Sullivan, like the 2,300 former Justice Department employees who signed an open letter demanding the attorney general’s resignation, was unimpressed with Bill Barr’s protests to CBS that he was simply defending poor, put upon Michael Flynn’s rights, and “the groups that usually worry about civil liberties and making sure that there’s proper procedures followed and standards set seem to be ignoring it and willing to destroy people’s lives and see great injustices done.”

But the presidential pardon pen is a powerful weapon, so the court had no choice by to release Michael Flynn back into the wild to flog Qanon loonery and cash those sweetsweet wingnut welfare checks. The world is not a fair place.

Sometimes the bear eats you.

Memorandum Opinion [US v. Flynn No. Case 1:17-cr-00232-EGS (D.D.C. December 8, 2020)]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

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