The lawsuit against former Trump National Security adviser Michael Flynn has taken another strange turn. A week after the Ministry of Justice‘In fact, after the much-criticized decision to drop Flynn’s guilty plea, the federal judge in the case said, “Wait, not so soon.”
US judge Emmet G. Sullivan said on Wednesday to appoint the retired federal judge in New York and former prosecutor John Gleeson to protest the motion of the Justice Department to dismiss Flynn’s case. Sullivan Gleeson also asked to investigate whether the former security adviser may have committed perjury in his attempt to overturn his guilty plea about lying.
This is another remarkable step in an already charged case. Flynn pleaded guilty to lying to FBI investigators in December 2017 about his contacts with the Russian ambassador to the U.S. during Donald Trump’s presidential transition when Flynn, a retired U.S. Army lieutenant general, served as a senior member of the U.S. elected president’s transition team. .
But last week, Trump’s Department of Justice, led by Attorney General Bill Barr, turned the whole thing upside down by filing a motion to dismiss all charges against Flynn. It was an extremely controversial move, as it looked like yet another case of Barr’s Justice Department that set aside prosecutors’ discretion in a way that seemed to protect the president’s interests.
Then, this week, Sullivan had said he would allow others to bring in external arguments (“friend of the court”) over the DOJ’s motion to make Flynn’s plea for 2017 for lying to the FBI over his Russian reject contacts.
All this temporarily puts Flynn’s status in limbo, as Sullivan has refused to immediately grant the Justice Department’s request the green light. Sullivan doesn’t have much leeway here, but the circumstances are anything but ordinary, and he has the opportunity to press the government’s reasoning before them.
Flynn’s lawyers initially objected to Sullivan’s Action to accept outside opinions. “This travesty of justice has taken three or more years of an innocent man’s life – and that of his entire family,” They wrote. “No further delay should be tolerated or any other costs incurred for him and his defense. This court must immediately follow the order proposed by the government. ‘
It is still unlikely that this will ultimately change Flynn’s fate, but it does take this more than two year old business a little longer. And given the politically charged and bizarre nature of Flynn’s case, Sullivan at least clears the way for arguments against the Justice Department’s actions, as criticism of the reversal of the Flynn case comes from everyone from former federal prosecutors to a former president.
The many twists and turns of Flynn’s case
Flynn pleaded guilty in December 2017 to making false statements to federal law enforcement over his communications with Russian Ambassador Sergey Kislyak in December 2016 regarding sanctions imposed by the Barack Obama administration.
When FBI agents asked him about those conversations in early 2017, Flynn denied that he had imposed any sanctions. Prosecutors also found evidence that Flynn might have broken the law elsewhere, including for not registering as a foreign lobbyist, but prosecutors accused him of that one count of lying to the FBI in the investigation by former special counsel Robert Mueller.
As part of his plea deal, Flynn agreed to partner with the Mueller team and prosecutors initially commended his cooperation. But when it came time for the December 2018 sentencing of Flynn, the former national security adviser reversed course and suggested that prosecutors had put him on track.
Judge Sullivan seemed irritated by Flynn’s behavioral change, and at the time Sullivan spoke harshly about Flynn’s behavior, suggesting that he “sold out his country.” Judge Sullivan then asked if Flynn would prefer to postpone the conviction to receive the full credit for his cooperation, which he has postponed for 2019.
But Flynn’s legal team went ahead and eventually tried to retract his guilty plea. But this time, Flynn had a listening ear at the Justice Department – Attorney General Bill Barr, who has not made secret his skepticism about the Russian probe. He appointed an outsiders prosecutor to review Flynn’s case, uncovering internal FBI documents and what he saw as errors and missteps, and advised dropping the case.
Last week, the Justice Department filed a motion to do this, essentially alongside the defense that the investigation was questionable and “would not be in the interest of justice.”
None of the prosecutors who worked on the prosecution of Flynn signed the motion to dismiss the case against him, and one of the chief prosecutors withdrew completely from the case. Sixteen former Watergate prosecutors have also filed a complaint against the Justice Department decision. (Sullivan has denied the assignment so far.)
Gleeson, the former judge who appointed Sullivan to oppose the Justice Department in the Flynn case, co-authored a Washington Post op-ed this week critical of the DOJ’s actions, calling it irregular and smelling of “political influence.” The opinion also says that the judge had the power to go much deeper into the government’s motivation, including forcing the government to release documents that would substantiate their case.
“It can appoint an independent lawyer to act as a” friend of the court, “which allows for a full, contradictory investigation, as the judge in the Flynn case did in other situations where the department relinquished its prosecution role, ” says the opinion. “If necessary, the court may hold hearings to resolve factual differences.”
Bill Barr’s Justice Department has previously intervened in cases involving former Trump employees, most notably Roger Stone, who was convicted of lying to Congress during a trial last year. And Flynn lied to FBI agents – something he admitted several times – which raised questions about unequal treatment, especially if certain defendants have the support of the President of the United States.
Trump and his allies, who have long dismissed Russia’s investigation as a “ deep state ” plot against the president, applauded the Justice Department move, claiming it somehow points to a massive conspiracy by the Obama administration to trap Flynn and the President.
But Flynn – and Barr’s Justice Department – aren’t off the hook yet. Sullivan can still hear these external arguments and, if he chooses, question the government about their decision to drop the case. Whether that will change the outcome of the Flynn case seems less clear; the president himself said last week that although he is not a judge, he “has a different kind of power” – a clear reference to his forgiveness.
“But I don’t know that someone should use that power,” Trump added. “I think he was acquitted.”