Judge Sullivan Calls Bullshit on DOJ’s Pretextual Reasons for Blowing Up the Mike Flynn Prosecution

As described in this post, Judge Emmet Sullivan dismissed Mike Flynn’s prosecution as moot. In his opinion dismissing the case, he asserted his authority to weigh whether DOJ’s motion to dismiss Flynn’s prosecution was in the public interest, while stopping short of doing so since the decision is moot. That part of the opinion affirmed District court authority to weigh whether DOJ has done something corrupt in blowing up Mike Flynn’s plea.

Along the way, Sullivan made it quite clear he believed that DOJ was lying about their two main excuses for blowing up Flynn’s prosecution — that his lies weren’t material nor were they clearly lies.

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. The government advances two primary reasons8 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. See Gov’t’s Reply, ECF No. 227 at 31. As explained below, the Court finds both stated rationales dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.

Sullivan argues Flynn’s lies were material under the DC circuit’s standard

As Sullivan laid out, in their efforts to justify blowing up the Mike Flynn prosecution, the government adopted a totally new standard for materiality.

In making its arguments, however, the government relies on a newly-minted definition of “materiality” that is more circumscribed than the standard in this Circuit. The government describes the materiality threshold as requiring more than “mere ‘relevance’”; rather, the false statement must have “probative weight” and be “reasonably likely to influence the tribunal in making a determination required to be made.” Gov’t’s Mot. Dismiss, ECF No. 198 at 12-13 (quoting Weinstock v. United States, 231 F.2d 699, 701 (D.C. Cir. 1956)). Therefore, “[t]he materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular ‘subject of [their] investigation.’” Id. at 13 (quoting United States v. Kim, 808 F. Supp. 2d 44, 59 (D.D.C. 2011)).

After laying out what the standard really is — whether a lie is capable of affecting the general function of the FBI — Sullivan then notes that the government had previously argued that Flynn’s lies were material.

Given the materiality threshold’s expansive scope, the government’s new use of the narrowed definition of “materiality” is perplexing, particularly given that the government has previously argued in this case that the materiality standard required only that a statement have a “natural tendency to influence, or [be] capable of influencing.” See Gov’t’s Surreply Def.’s Reply Support Mot. Compel, ECF No. 132 at 10-11. The government, for its part, offers no response as to why it relies on this new, more stringent definition. Nor does the government direct the Court’s attention to any other case in which it has advanced this highly-constrained interpretation of materiality as applied to a false statements case.

He then lays out how — going even further — DOJ claimed it didn’t need to adhere to any standard of law, much less the precedent for this circuit. Sullivan uses that to argue that the government has lost the presumption of regularity.

Notably, during the September 29, 2020 motion hearing, the government seemed to suggest that, when moving for dismissal of an action pursuant to Rule 48(a), the government need not refer to the correct materiality standard at all when determining whether a false statement is “material.” See Hr’g Tr., ECF No. 266 at 78:21-79:3 (“[W]hen we move to dismiss, the question in our mind is not what is the legal standard of materiality for whether the evidence here will be sufficient to sustain a conviction on appeal. The question is whether we, the Department of Justice, think this evidence is material . . . .”). 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.

Importantly (as I’ll return to), the opinion engages in a page-long discussion about the bullshit excuses DOJ has floated to argue these lies weren’t material.

Several of the government’s arguments regarding materiality also appear to be irrelevant or to directly contradict previous statements the government has made in this case. For example, as Mr. Gleeson points out, many of the “bureaucratic formalities” the government asserts reveal the “confusion and disagreement about the purpose and legitimacy of the interview and its investigative basis”—such as the drafting of the FBI’s Closing Communication or internal conversations between FBI and Department of Justice officials regarding whether to notify the Trump administration of Mr. Flynn’s false statements—are not relevant to proving materiality. See Amicus Reply Br., ECF No. 243 at 19. Nor is it relevant whether Mr. Flynn was an “agent of Russia” or guilty of some other crime at the time he made the false statements. Furthermore, while the government argues that, “since the time of [Mr. Flynn’s guilty] plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case,” Gov’t’s Reply, ECF No. 227 at 35; the government had been aware of much of this evidence since early on in the case, see, e.g., Gov’t’s Response Def.’s Mot. Compel, ECF No. 122 at 8-9.

Sullivan closes that section by reasserting the standard that the government can’t just invent bullshit to justify its decisions.

Under Ammidown, the Court must be satisfied that the government undertook a “considered judgment,” 497 F.2d at 620; and asserting a factual basis that is largely irrelevant to meeting any legal threshold likely does not meet this standard.

Sullivan debunks DOJ’s claims that Flynn may not have lied

Then Sullivan debunks DOJ’s claims that there was any doubt that Flynn lied, focusing primarily on the import of the fact that Peter Strzok and Joe Pientka didn’t believe he exhibited signs of lying when walking out of the interview. Primarily, this discussion focuses on how the claim is legally irrelevant and conflicts with what DOJ has said in the past.

The government’s second rationale is that it “does not believe it could prove that Mr. Flynn knowingly and willfully made a false statement beyond a reasonable doubt.” Gov’t’s Mot. Dismiss, ECF No. 198 at 18; see also Gov’t’s Reply, ECF No. 227 at 38-39. To support this rationale, the government initially pointed to the fact, which was known at the time Mr. Flynn pled guilty, that the FBI agents who interviewed him did not think he was lying, and it also noted the “equivocal” or “indirect” nature of Mr. Flynn’s responses. Gov’t’s Mot. Dismiss, ECF No. 198 at 18. The government further contends that evidentiary problems have “emerged” including: (1) “inconsistent FBI records as to the actual questions and statements made,” id. at 19; (2) “Director [James] Comey’s own sentiment that the case was a ‘close one,’” id. (quoting Ex. 5 to Gov’t’s Mot. Dismiss, ECF No. 198); and (3) “substantial impeaching materials on the key witnesses,”9 Gov’t’s Reply, ECF No. 227 at 39.


As an initial matter, whether or not the FBI agents thought Mr. Flynn was lying is irrelevant in a false statements case. See Brogan v. United States, 522 U.S. 398, 402 (1998). And the government has not explained how evidence that the government previously stated was “consistent and clear,” Gov’t’s Surreply, ECF No. 132 at 4-5; suddenly became “equivocal” or “indirect.” With regard to the “inconsistent records” rationale, the government has not pointed to evidence in the record in this case that contradicts the FD-302 that memorialized the FBI agents’ interview with Mr. Flynn.

Sullivan then goes on to debunk a lot of the other bullshit DOJ threw into his docket. I’ll return to this. But the important point is that Sullivan relied on DOJ’s past assertions to debunk the claims that DOJ later threw up.

Having reviewed DOJ’s two substantive excuses for blowing up Flynn’s prosecution, Sullivan suggests they’ve forfeited the presumption of regularity they’d need to convince him to dismiss Mike Flynn’s prosecution, but ultimately avoids saying whether he would have rejected their request or not because the question is moot.

Again, under Ammidown, the Court must be satisfied that the government undertook a “considered judgment.” 497 F.2d at 620. Asserting factual bases that are irrelevant to the legal standard, failing to explain the government’s disavowal of evidence in the record in this case, citing evidence that lacks probative value, failing to take into account the nature of Mr. Flynn’s position and his responsibilities, and failing to address powerful evidence available to the government likely do not meet this standard.

Thus, the application of Rule 48(a) to the facts of this case presents a close question. However, in view of the President’s decision to pardon Mr. Flynn, Mr. Flynn’s acceptance of the pardon, and for the reasons stated in the following section, the appropriate resolution is to deny as moot the government’s motion to dismiss pursuant to Rule 48(a).

So first Sullivan laid out that he had the authority to decide, but stopped short of deciding because the question is moot. Then he laid out abundant reason why DOJ had forfeited the presumption of regularity such that their rationale for asking that the case be dismissed would otherwise have to be accepted, but once again stops short of ruling, because the question is moot.

He has the authority to decide but won’t because the question is moot.

He shows all the evidence that the government is full of shit, but does not rule as such, because the question is moot.

Because the government has very little way to appeal either of these rulings, the rest of the opinion (and the steps Sullivan took to get there) will likely never be appealed. Sullivan has laid a record out that almost certainly cannot be challenged. He has used the mootness of the question as a shield to lay out two key judgments: that he could decide, and that he could have decided against the government.

35 replies
  1. Quake says:

    “ Then Flynn debunks DOJ’s claims that there was any doubt that Flynn lied, ”
    > Then Sullivan debunks…

  2. dude says:

    Did you intentionally repeat the paragraphs beginning: “The government’s second rationale is that it “does not believe it could prove that Mr. Flynn knowingly and willfully made a false statement beyond a reasonable doubt.” ?

    Maybe I am missing something.

  3. adam says:

    Is there still a mechanism for him to address the doctored documents that were submitted to him in this case?

  4. ML says:

    So, Justice lifts the blindfold long enough to wink at Flynn, and Sullivan asserts his right to maybe pull it back down again at some point in the future.

    I’m not very well versed in the American legal system, but this doesn’t go very far toward restoring my faith. Should it?

  5. ThoughtMail says:

    “Because the government has very little way to appeal either of these rulings, the rest of the opinion (and the steps Sullivan took to get there) will likely never be appealed.”

    Interesting conclusion, considering that Sydney Powell, et al., didn’t claim that the fact that they’d won an appeal foreclosed their “right” to appeal their win.

    Please forgive that I appear to be criticizing you, Marcy. It’s an innocent error, taking into consideration Trumpian history, and dialogue-framing. I believe you’re correct but, in the current environment, I don’t believe that makes it just-so.

    • bmaz says:

      Ahem, exactly what “appeal” is it that you assert that Powell “won”? Because a remand for further consideration is most certainly not that, as Sullivan amply displayed.

    • emptywheel says:

      The government is a different party than Flynn.
      But both have acceded to the decision to moot any further proceedings in this case. They made Sullivan’s decisions moot, he didn’t.

  6. greenbird says:

    link: https://www.courtlistener.com/docket/6234142/united-states-v-flynn/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc#minute-entry-149116707
    good words here, too.
    Dec 8, 2020 MINUTE ORDER
    striking [228-2], [228-4], [228-5], and [248-1] from the record in this case
    because the government declined to authenticate these filings.
    See Gov’t’s Response to the Court’s Oct. 23, 2020 Minute Order, ECF No. 306 at 5.
    Signed by Judge Emmet G. Sullivan on 12/8/2020. (lcegs3)

  7. Peterr says:

    Because the government has very little way to appeal either of these rulings, the rest of the opinion (and the steps Sullivan took to get there) will likely never be appealed. Sullivan has laid a record out that almost certainly cannot be challenged. He has used the mootness of the question as a shield to lay out two key judgments: that he could decide, and that he could have decided against the government.

    I pity the next DOJ attorney scheduled to enter Sullivan’s court, who will spend hours trying to compose the proper answer to a possible question from the bench: “In light of US v Flynn, why should I grant you the presumption of regularity?”

    • Rugger9 says:

      It’s funny that you mentioned the DOJ lawyers, since they have to explain themselves over the USPS flouting Sullivan’s ruling on ballots and (IIRC) Sullivan’s ruling on 33 refugees last week.

      It will be Trumpers that will try, and fail bigly.

    • Silly but True says:

      The mootness is double edged sword. There is no case law established in US v Flynn because the issue of regularity that Sullivan would have ruled on was mooted.

      Sullivan’s decision is fine as symbolic gesture but sucks as legal precedent. Although that symbolic gesture was as good as it was going to get in face of Presidential pardon.

      There’s no stopping this sort of thing in a politicized DoJ until a DoJ attorney is actually disbarred or goes to jail.

      • bmaz says:

        Agree with Marcy, maybe but maybe not. We’ll see. But as to what precedent may come from it, I kind of disagree with you even before seeing what Sullivan does, or does not, do after January 20. For those that remember, I have long thought that a Flynn pardon would track the prior Arpaio matter. Check what Sue Bolton and the 9th said on that (and that SCOTUS refused to consider reviewing). Sullivan is very consistent therewith. In that regard, yes, there is precedent.

        • Silly but True says:

          Fair enough that a new world awaits in Jan.

          I guess I am personally am annoyed by symbolic gestures like this — and Bolton’s in Arpaio for that matter — because courts are supposed to resolve actual disagreements, not tilt at windmills then concoct circuitous pathway to get to where they were going anyway.

          Although they claim opposite, Bolton was effectively wrong, and 9th Circuit allowed her to save face in novel baby-splitting. So she was not wrong to not vacate the verdict in face of pardon (and so presumably neither would Sullivan) — so magically, 9th Circuit confirmed the non-vacated verdict was not a verdict. The end result is the verdict stands but was made meaningless and serves as no legal consequence for Arpaio. He can truthfully check a “no” box asking “have you ever been convicted of a crime?”

          I agree Arpaio is the exact same situation as Flynn; Flynn was not yet sentenced either when he was pardoned like Arpaio — and so is not convicted either. I see the same outcome looming: I have less faith than you two that federal courts want to wade into a fight over limits of pardons.

        • Silly but True says:

          My problem is I find little satisfaction in an outcome which technically holds “a guilty verdict was rendered but never a conviction,” when it is the conviction that is only substantial part.

          This feels to me like an impeachment without conviction: okay, so a new name gets added to social studies textbook footnotes. For it to even have meaning, the person — and those it might serve as warning — must be able to have a sense of shame.

          If US v Flynn follows Arpaio, then Flynn might perpetually have pleaded guilty but never convicted. Which I suppose will remain good conversation on political social media, but not so useful for accountability.

        • bmaz says:

          But that is the law, and the law is far more important than some vague notion of “accountability”. Neither Arpaio nor Flynn (at least originally) were ever going to spend a day in prison, so “accountability” is rather relative to start with.

          I have no idea what you mean about “conversations on social media”, but this is how the law works in practice. It may not always be satisfying to one and all, but little ever is.

          Also, Flynn only pleaded guilty once. Arpaio was found guilty once. The end result was exactly the same, there was a formal finding of guilt. Just no conviction for either because there was never a formal sentencing, but instead a pardon. And that too is the law. Which is fine, the law is above single men like these.

        • Silly but true says:

          True: blind application of the law is an end unto itself. And that’s difficult to see sometimes.

          I suppose that it is important for the law to win, and if Arpaios and Flynns of the world must win as well for that to happen, then so be it.

        • vvv says:

          FWIW, I don’t see Flynn or Arpaio as having “won.”

          A plea of guilty, a finding of guilty – they are both publicly, historically documented for the criminals they are.

          That their sentences were mitigated through a pardon rendered by such a flawed and failed president is a separate issue, a political issue, and not a “win” in the sense of defending themselves in a righteous criminal prosecution.

          In somewhat like result, that same failed president did not “win” his impeachment. Altho’ he was not convicted and removed, the evidence was clear and it was only the (arguably corrupt) politics of the Senate majority that prevented same. As Pelosi stated, “He’s impeached forever.”

  8. hollywood says:

    Off topic but what about SCOTUS putting Texas’ motion for leave to file their complaint against PA et al. on the docket? Opposition is due Thursday.

    • Drew says:

      As I understand from lawyers posting on Twitter, docketing just means that the clerks received the case and have entered it. Texas still hasn’t been given leave to sue in the Supreme Court and it takes SCOTUS a long time to get around to that. By the time they decide on that everything in this case will be moot, moot, moot.

      (Even in the case that the MAGAts & Trump do crazy things, like insurrection or martial law, the Texas suit will be completely irrelevant)

      • hollywood says:

        Right but Texas also asked for expedited treatment. Hence, the opposition to the motion is due Thursday.

    • scribe says:

      It’s got to be on the docket once it’s properly filed and served.
      If you didn’t notice, the Court tossed the Kelly-Penna. case with a one-sentence denial.

      On the docket, considered, denied. Case closed.

      • Peterr says:

        “The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.”

        Translated: “This isn’t worth the time of the clerks, let alone the justices, to go into the numerous reasons why this is crap, and write it up with all the appropriate citations. If you are a lawyer and can’t see why this is crap, you can just turn in your bar card.”

        Or words to that effect.

        • Rugger9 says:

          That Alito did this is a very bad sign for DJT, and the TX suit by that noble paladin of sleaze AG Paxton is even flimsier. For example, how would Paxton know enough detail about the four states’ election laws in order to cite anything useful to overturn them when the local GOP AGs didn’t?

        • Peterr says:

          I wouldn’t read anything into this having Alito’s name on it. The petition went to him because he had responsibility for cases coming out of Pennsylvania, and rather than rule on it as a routine matter himself, he forwarded it to the whole court for disposition.

        • Alan Charbonneau says:

          “… rather than rule on it as a routine matter himself, he forwarded it to the whole court for disposition.”

          Likely because 2020 has been a stressful year and he wanted his colleagues to join him in a good laugh.

        • bmaz says:

          Scribe and Peter are right; this means nothing. It was clearly a 9-0 loss on the PA thing, and this Paxton thing is geometrically weaker than the absurd PA case. This bunk is going nowhere.

          Instead of a full sentence, the next denial order may just read “Hell no”.

        • Rugger9 says:

          I’m not sure that all of the charges pending against TX AG Paxton are federal ones, but I may be wrong. If there are state charges, DJT’s pardon does nothing, though DJT might try anyhow.

          I do think you’re correct about the motivation, however, for Paxton to do this now

        • Robot17 says:

          I think he has exposure on both. More than likely he doesn’t have to worry about the State charges as Texas has a different way of adjudicating cases involving rich and/or powerful white people.

  9. The Old Redneck says:

    There’s a common thread between Flynn’s case and the new case brought by Paxton: abuse of process.
    In Flynn’s case, the pardon of Flynn does not get the lawyers off the hook for anything they filed improperly, or any statements they made which weren’t true. A court typically retains jurisdiction to address those things.
    The Texas case brought by Paxton is astounding. Someone spent that state’s taxpayer time and money generating more than 100 pages of pseudo-serious nothing. To give one example, it states that the actual statistical probability of Biden winning in one of the disputed states was one in a quadrillion (whatever that is). But reduced to its simplest form, the Texas case is like playing an entire football game, losing that game, then deciding after losing that the rules of the game weren’t fair, and then asking the Court to decide the game was never really played.
    These are the same people, by the way, who complain about “frivolous lawsuits” when ordinary people bring them based on real harms and injuries.

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