In late 2017, Michael Flynn pleaded guilty to making false statements to the FBI concerning conversations he had with the Russian ambassador to the United States following President Trump’s surprise victory over Hillary Clinton. Soon after, the case was transferred to Judge Emmet Sullivan’s docket, where it languished for a year while Flynn cooperated with special counsel Robert Mueller’s office. During that time, the public learned that the Russian collusion tale peddled by Democrats and the media was false and that the true scandal was the FBI targeting the Trump campaign and its flagrant abuse of the Foreign Intelligence Surveillance Court to spy on the Trump team.
Those calling out the Spygate scandal soon recognized the targeting of Flynn played an important role in the scandal. The FBI, then under the “leadership” of Director James Comey, needed to oust Flynn to prevent him from discovering the plot. Flynn, though, coerced by threats from special counsel prosecutors to go after his son, remained mum.
But after two years, $30 million-plus dollars, and a report showing no Russia collusion, the special counsel’s team disbanded. Flynn fired his Covington & Burling lawyers and hired Sidney Powell. Over the next six months, Powell dissected hoards of documents and sought more. There were missing FBI FD-302 interview forms. There were documents related to Flynn and the broader Spygate scandal. Who knows what else?
In a nearly 100-page decision, however, Sullivan denied Powell’s motion to compel and her request to dismiss the case against Flynn based on egregious prosecutorial misconduct.
Later came multiple motions to withdraw Flynn’s guilty plea. In those motions, Flynn proclaimed his innocence and attested that he had pleaded guilty only to protect his son from the special counsel’s office. Powell also laid out substantial evidence suggesting that Covington & Burling’s lawyers had provided ineffective assistance of counsel and added further evidence of prosecutorial misconduct.
While Sullivan ignored the many irregularities in the case, Attorney General William Barr did not.
Barr appointed an outside U.S. attorney, Jeff Jensen, to review the Flynn prosecution. Three weeks ago, the first results of Jensen’s investigation became public when Powell supplemented her earlier motions with a cache of documents Jensen had just provided Flynn’s defense team.
Those documents established that the FBI had closed out its Russian collusion investigation of Flynn before the agents’ late-January questioning of Flynn. Handwritten notes further exposed that the questioning, at best, related to a nonexistent and legally ridiculous Logan Act investigation and at worst was a perjury trap. Text messages also confirmed that there was an original 302 interview summary that FBI lawyer Lisa Page wordsmithed following the questioning of Flynn.
With this evidence in hand, surely Sullivan could see what Powell had been saying for a year: that Flynn was innocent and that the special counsel’s office had coerced a plea and then withheld exculpatory evidence from Flynn’s attorneys.
But Sullivan said nothing other than to tell Powell to stop filing the new evidence until Jensen had finished his review.
While Sullivan stayed on the sidelines, the U.S. attorney’s office took charge and filed a motion to dismiss the charge against Flynn with prejudice. This filing detailed the numerous problems with the case against Flynn, highlighting statements Flynn had made to the FBI agents that showed he had not lied to the agents and that the edited 302 misrepresented what Flynn had said.
The motion to dismiss further explained how the FBI’s questioning of Flynn was illicit and did not serve a proper investigative purpose — and was thus not material. And for all of those reasons, the U.S. attorney’s office moved to dismiss the charge against Flynn with prejudice.
Surely, Sullivan saw the truth now! Powell had been right all along. The Flynn case was the Stevens case — the criminal case against then-Sen. Ted Stevens that Sullivan presided over in 2008. After a jury convicted Stevens on corruption charges, new prosecutors assigned to handle the appeal discovered that trial prosecutors had withheld evidence supporting Stevens’s claims of innocence.
The federal prosecutors informed the court, and newly confirmed Attorney General Eric Holder moved to dismiss the charges against Stevens with prejudice, which Sullivan did.
But Sullivan did so much more. He “unleashed his fury before a packed courtroom. For 14 minutes, he scolded. He chastised. He fumed. ‘In nearly 25 years on the bench,’ he said, ‘I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.’” Sullivan then appointed an outside attorney, Henry Schuelke, “to investigate and prosecute such criminal contempt proceedings.” That investigation uncovered untold evidence of prosecutorial misconduct, but it was insufficient to support prosecution.
The parallels between the Stevens case and the Flynn case gave hope that Flynn would see justice and Sullivan would do the right thing. But instead of appointing an outside attorney to investigate prosecutorial misconduct, Sullivan issued a pair of orders this week, teeing up an investigation of Barr and Flynn.
The first order came Tuesday when Sullivan stated he would accept amicus curiae, or friend of the court, briefs concerning the government’s motion to dismiss the charge against Flynn. On Wednesday, Sullivan appointed “the Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss” and to investigate whether Flynn should be held in criminal contempt of court for perjury.
With this later order, Sullivan has destroyed any possible semblance of impartiality — and his reputation. A federal court has no authority over prosecutorial decisions, including whether to prosecute or whether to dismiss. Gleeson already declared Wednesday in a Washington Post op-ed that the Barr DOJ’s handling of dismissing the charges against Flynn was politically motivated.
No, what was politically motivated was Sullivan’s response. Barr had already assigned the case to an outside U.S. attorney for an independent review, and that review uncovered that the federal prosecutors handling the prosecution had withheld material exculpatory evidence — in direct violation of Sullivan’s order.
Other evidence discovered by Powell showed that, as Flynn had claimed, the prosecutors threatened to target his son if Flynn didn’t plead guilty. Additional documents also suggest that rather than inform the court of that side agreement, the federal prosecutors kept it secret so that they did not need to disclose the understanding to other defendants, as is constitutionally required.
The Sullivan who presided over the Stevens case would care about this prosecutorial misconduct. But politics and pride have destroyed that man. The long-respected jurist is now a shriveled shadow of the defender of liberty and the rights of the accused. In trying to destroy Flynn, Sullivan has instead destroyed himself.
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner’s Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge.
