The federal judge agreed to dismiss as moot the case against retired Lt. Gen. Michael Flynn on Tuesday, roughly two weeks after President Trump pardoned the former national security adviser.
Judge Emmet Sullivan, who has handled the case against Flynn since December 2017, issued a 43-page opinion along with his order to dismiss the case, seemingly putting an end to a legal drama that began during the 2016 election amid the FBI’s Crossfire Hurricane investigation and continued into special counsel Robert Mueller’s investigation and beyond. The judge had been resisting quickly granting the Justice Department’s initial motion to dismiss the case since May.
“Pending before the Court are: (1) the government’s motion to dismiss the criminal information against Mr. Flynn with prejudice pursuant to Federal Rule of Criminal Procedure 48(a) … and (2) the government’s notice of executive grant of clemency and consent motion to dismiss this case as moot,” Sullivan wrote, adding that “upon careful consideration of the motions, the applicable law, the entire record herein, and for the reasons explained below, the Court DENIES AS MOOT the government’s motion to dismiss pursuant to Rule 48(a), and GRANTS the government’s consent motion based on the presidential pardon and DISMISSES this case AS MOOT.”
Trump announced the Flynn pardon the day before Thanksgiving. “It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon,” he said in a tweet. The DOJ then quickly urged Sullivan to dismiss the case as moot.
“The President granted General Flynn ‘a full and unconditional pardon’ for (1) the charge of making false statements to Federal investigators … (2) any and all possible offenses arising from the facts set forth in the Information and Statement of Offense … (3) any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel … and (4) any and all possible offenses arising out of facts and circumstances … related to the investigation of the Special Counsel,” the DOJ told the court at the end of November, adding that “no further proceedings are necessary or appropriate, as the Court must immediately dismiss the case with prejudice.”
Flynn, 61, fought to dismiss the government’s case against him this year after he pleaded guilty in December 2017 to lying to investigators about his intercepted December 2016 conversations with Russian Ambassador Sergey Kislyak. The U.S. government intercepted Flynn’s discussions with Kislyak, after which now-fired FBI special agent Peter Strzok and FBI agent Joseph Pientka grilled him on the contents of those talks on Jan. 24, 2017.
Flynn told the court in January that he was “innocent of this crime” and filed to withdraw his guilty plea. The DOJ later moved to drop the charges in May, following a deep-dive review by U.S. Attorney for the Eastern District of Missouri Jeffrey Jensen. The DOJ said that “continued prosecution of this case would not serve the interests of justice.”
Instead, Sullivan, an appointee of President Bill Clinton, appointed retired New York Judge John Gleeson to present arguments in opposition to the DOJ’s motion and to explore whether Flynn should be charged with perjury or contempt.
Trump’s pardon put an end to that despite speculation that Sullivan might try to fight the pardon ahead of an incoming Biden administration.
“Here, the scope of the pardon is extraordinarily broad — it applies not only to the false statements offense to which Mr. Flynn twice pled guilty in this case, but also purports to apply to ‘any and all possible offenses’ that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation,” Sullivan wrote on Tuesday. “However, the Court need only consider the pardon insofar as it applies to the offense to which Mr. Flynn twice pled guilty in this case. Mr. Flynn has accepted President Trump’s ‘full and unconditional pardon.’ … The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot.”
“While not conclusory, many of the government’s reasons for why it has decided to reverse course and seek dismissal in this case appear pretextual, particularly in view of the surrounding circumstances,” Sullivan said. “For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case.”
The Justice Department argued in May that “this crime, however, requires a statement to be not simply false, but ‘materially’ false with respect to a matter under investigation” and emphasized that “materiality is an essential element of the offense” as it moved to drop the charges. The DOJ said it “is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.”
Sullivan responded on Tuesday.
“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. The government advances two primary reasons justifying dismissing the case based on its assessment of the strength of the case: (1) it would be difficult to prove the materiality of Mr. Flynn’s false statements beyond a reasonable doubt; and (2) it would be difficult to prove the falsity of those statements beyond a reasonable doubt,” Sullivan wrote. “The Court finds both stated rationales dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.”
During a contentious sentencing hearing in December 2018, Sullivan told Flynn that “arguably you sold your country out” and repeatedly asked prosecutors if Mueller had thought about charging Flynn with “treason.” Mueller’s team said it did not believe Flynn’s conduct met the standard of treason. Sullivan backtracked and apologized later in the hearing, saying, “I felt terrible about that … I’m not suggesting he committed treason.” The sentencing was postponed.
Flynn got new attorneys in the summer of 2019. Led by former federal prosecutor Sidney Powell, the revamped legal team argued in October that Sullivan’s “increasingly hostile and unprecedented words and deeds in what has become his own prosecution of General Flynn mandate his disqualification.” Acting Solicitor General Jeff Wall said in August that the Justice Department “reluctantly” believed that Sullivan might need to be removed because he seemed to have “prejudged” some of the questions in the case.
Fired FBI Director James Comey admitted he took advantage of the chaos in the early days of Trump’s administration when he sent FBI agents over to the White House to talk to Flynn. Records released earlier this year included handwritten notes from Bill Priestap on the day the FBI interviewed Flynn, in which he wrote, “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
Handwritten notes by Strzok seem to quote now-President-elect Joe Biden raising the “Logan Act” related to Flynn during an Oval Office meeting on Jan. 5, 2017, according to an apparent conversation Strzok had with Comey afterward. Former President Barack Obama emphasized that “the right people” should look into Flynn.
In interviews this year, Biden contradicted himself on what he knew about the Flynn investigation.
A draft communication closing the Flynn case dated Jan. 4, 2017, showed the bureau had turned up “no derogatory information” on Flynn. But the same day, texts from Strzok reveal he intervened to keep it open at the insistence of the FBI’s “7th floor” leadership after the bureau obtained intercepts of conversations between Flynn and Kislyak and that Strzok and then-FBI lawyer Lisa Page discussed the Logan Act.
Internal text messages sent by FBI analysts working on the case against the retired Flynn in 2016 and 2017 reveal doubt inside the investigation into Flynn. William Barnett, one of the lead FBI agents involved with the inquiry into Flynn, suggested the case should have been closed. He jokingly referred to the Trump-Russia investigation as “Collusion Clue” and argued that many investigators, including some on Mueller’s team, were out to “get Trump.”
