Mike Flynn Invites DOJ to Review Judge Emmet Sullivan’s Non-Exoneration

I’ve been missing out on some fun.

When Mike Flynn sued DOJ in Florida for malicious prosecution (docket, complaint, amended complaint, response to MTD), I set an alert but figured it would be too stupid to follow along closely and so haven’t been following closely until something led me to peek this morning.

It is stupid.

But it has, nevertheless, elicited some interesting arguments on the part of DOJ (motion to dismiss, motion to dismiss amended complaint). That’s because it has forced DOJ to engage with Bill Barr’s corrupt attempt to dismiss Flynn’s prosecution in 2020 (the second of these MTDs, which I treat here, was filed in mid-September).

DOJ argues the DC standard for malicious prosecution applies here. If it does, it means that Flynn has to prove that:

  1. The criminal prosecution was procured by investigative or law enforcement officers (as opposed to prosecutors)
  2. There was no probable cause to support the charges even though Flynn pled guilty to them, twice
  3. The criminal prosecution terminated in Plaintiff’s favor

Flynn unsurprisingly bases his claims substantially on texts Peter Strzok sent Lisa Page and even DOJ’s improperly released letter from David Bowdich dismissing Strzok (currently the subject of a lawsuit in which Trump was deposed four days ago).

It also relies heavily on — but does not submit as evidence — the testimony of Bill Barnett. Barnett is pro-Trump FBI agent who, unlike Strzok, remained on the case when Flynn was actually charged. As part of an election stunt, Barr released an interview with Barnett that wildly contradicted his own past actions and redacted all mention of Brandon Van Grack, about whom Barnett had favorable things to say.

You can see the problem here.

Flynn tried, but cannot argue, that Jeannie Rhee and Robert Mueller procured a malicious prosecution of him (for some reason — possibly because the Barnett report describes what a nice guy Van Grack was — Flynn removed Van Grack from his amended complaint).

To win this case, Flynn has to show that an FBI agent did mean things to him. But the FBI agent on the case when he was charged was Barnett, not Strzok. To argue that earlier investigative steps amount to mean things, Flynn has to argue that an agent who reportedly sent pro-Trump texts on his FBI phone filed malicious National Security Letters targeting him.

Since that argument is such a loser, Flynn has substantially attempted to argue that because the FBI did mean things to Carter Page, it equates to mean things against him too.

As DOJ notes, even Carter Page’s lawsuit failed.

Flynn also has to explain away why he twice pled guilty to the charges against him if there was no probable cause to justify the investigation in the first place.

Here, there can be no dispute that there was probable cause for the United States to file the criminal information because Plaintiff had already agreed to plead guilty to the charge at the time it was filed. See Criminal Case, ECF No. 3 (plea agreement with Plaintiff’s signature dated November 30, 2017), Criminal Case, ECF No. 154 (describing exchange of plea documents in days prior to the filing of the criminal information). Plaintiff’s plea agreement expressly states that Plaintiff is entering the plea “voluntarily and of [his] own free will,” after having discussed the plea with his attorneys, because he is “in fact guilty of the offense.” Criminal Case, ECF No. 3 at 10. In connection with the plea, Plaintiff also signed, under penalty of perjury, a “Statement of the Offense,” which set forth the factual predicate for his guilty plea. Criminal Case, ECF No. 4. In the Statement of the Offense, Plaintiff expressly stipulated and agreed that “[Plaintiff’s] false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals with the [Trump] Campaign and Russia’s efforts to interfere with the 2016 presidential election.” Id. at ¶ 1-2. Subsequently, Plaintiff twice affirmed, under oath, in open court that he was pleading guilty—not based upon any threats or promises but—because he was, in fact, guilty of the offense charged. See Criminal Case, ECF Nos. 16, 103.

Plaintiff’s own agreement to plead guilty to the criminal information conclusively establishes that there were “reasonable grounds”—i.e., probable cause—for the United States to institute the criminal charges. Indeed, numerous courts have held that a guilty plea “conclusively establishes that probable cause existed.” Cuellar v. Love, No. 11-CV-3632 NSR, 2014 WL 1486458, at *5 (S.D.N.Y. Apr. 11, 2014) (collecting cases); see also Walker v. Clearfield Cnty. Dist. Att’y, 413 F. App’x 481, 483 (3d Cir. 2011) (concluding “that a guilty plea—even one for a lesser offense—does not permit a later assertion of no probable cause”); Morrison v. Vine, No. 17-CV-996-LJV-HBS, 2021 WL 1229558, at *3 (W.D.N.Y. Feb. 25, 2021) (collecting cases for proposition that “guilty plea established probable cause for his criminal prosecution”), report and recommendation adopted, 2021 WL 1226446 (W.D.N.Y. Mar. 31, 2021). Plaintiff’s guilty plea thus “establishes probable cause for commencing the proceeding against him and therefore serves as an absolute defense to the malicious prosecution claim.”

Flynn claims he pled guilty (at least the first time) because DOJ threatened to prosecute his son.

The Amended Complaint alleges that Plaintiff “entered into a plea agreement, not because he thought he had done something wrong—he hadn’t—but because SCO had threatened his son with prosecution.” ECF No. 34 ¶ 128; see also id. at ¶ 136 (alleging that “SCO was aware that it had coerced the guilty plea”). Plaintiff’s allegation is totally devoid of supporting factual allegations regarding the alleged threat—such as what specific threat was made, who allegedly made the threat, or when the threat was made. Plaintiff’s threadbare allegation of coercion is insufficient to overcome the presumption established by Plaintiff’s guilty plea.

As DOJ notes, Flynn doesn’t even try to substantiate this claim. That’s probably because if he did, it’d lead right back to Van Grack and Barnett, not Strzok.

Since Flynn can’t prove either that an FBI agent caused charges to be filed against him or that there was no probable cause justifying it, this suit should not succeed.

But things get interesting on the third prong.

That’s because DOJ points to Judge Emmet Sullivan’s refusal to dismiss Flynn’s prosecution in the face of Barr’s attempts to do so to show that the case did not affirm Flynn’s innocence.

In or around February 2020, then-Attorney General William Barr appointed several prosecutors to review the Criminal Case, and, at the conclusion of their review, they recommended dismissal of the Criminal Case against Plaintiff. ECF No. 34. ¶¶ 147-48. On May 7, 2020, then-United States Attorney for the District of Columbia, Timothy Shea, who had not previously appeared in the case, moved to dismiss the criminal information. Id. ¶¶ 148, 151; ECF No. 34-4; Criminal Case, ECF No. 198. U.S. Attorney Shea argued that dismissal was warranted because the Government believed it could not prove “to a jury beyond a reasonable doubt” that: (1) Plaintiff’s false statements to FBI agents were “material” to any FBI investigation; and (2) Plaintiff knowingly and willfully made false statements during the interview. ECF 34-4 at 17-18. U.S. District Court Judge Emmet Sullivan did not immediately grant the motion and, instead, on May 13, 2020, appointed an amicus curiae “to present arguments in opposition to the government’s Motion to Dismiss.” Criminal Case, ECF No. 205 at 1; see also ECF No. 34 ¶ 162.

On November 25, 2020, prior to Judge Sullivan ruling on the motion to withdraw and motion to dismiss, President Trump granted Plaintiff a pardon. The presidential pardon provided Plaintiff “a full and unconditional pardon” for the charge of making false statements to federal investigators, as charged in the criminal information, and all possible offenses within the investigatory authority or jurisdiction of Special Counsel Mueller. Criminal Case, ECF No. 308-1. On the same day the pardon was issued, the White House Press Secretary released a statement addressing the pardon, stating that Plaintiff “should not require a pardon [because h]e is an innocent man.” ECF No. 34 ¶ 163.7 However, the text of the executive pardon did not indicate that the pardon was based on innocence. See Criminal Case, ECF No. 308-1.

On November 30, 2020, the United States Attorney’s Office filed a notice of the executive pardon and consent motion to dismiss, arguing that the Criminal Case was moot due to Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 308. On December 8, 2020, Judge Sullivan issued an opinion dismissing the Criminal Case as moot. Criminal Case, ECF No. 311.8 In doing so, Judge Sullivan addressed the arguments for dismissal raised in the still pending motion to dismiss filed by U.S. Attorney Shea. Id. at 28-40. Judge Sullivan first stated that the motion to dismiss appeared pretextual given the surrounding circumstances, including Plaintiff’s prior position as an advisor to President Trump and President Trump’s continued interest in the criminal case. Id. at 28-29. Judge Sullivan then commented that the motion to dismiss relied upon a new, “more circumscribed” definition of “materiality,” without offering any comprehensible reasoning for shifting to the “highly-constrained interpretation of materiality.” Id. at 30, 32. Judge Sullivan then reviewed the record evidence and found the motion to dismiss did not undertake “a considered judgment” when determining that “falsity” could not be proven beyond a reasonable doubt. Id. at 38. Judge Sullivan thus suggested that the motion to dismiss “present[ed] a close question,” but refrained from ruling on the merits and denied the motion as moot “in view of the President’s decision to pardon” Plaintiff and Plaintiff’s acceptance of the pardon. Id. at 38

7 See Statement from the Press Secretary Regarding Executive Grant of Clemency for General Michael T. Flynn (Nov. 25, 2020), available at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretaryregarding-executive-grant-clemency-general-michael-t-flynn/.

8 Because Judge Sullivan’s opinion is referenced in—and central to—Plaintiff’s Amended Complaint, ECF No. 34 ¶¶ 165-67, it may be considered by the Court in resolving this motion to dismiss. See Hodge v. Orlando Utilities Comm’n, No. 609-CV-1059- ORL-19DAB, 2009 WL 5067758, at *3 (M.D. Fla. Dec. 15, 2009); infra Argument, § I.

Much later, the motion to dismiss gets into a legalistic argument about whether accepting a pardon is recognition of guilt. Ultimately, though, DOJ notes that those legalistic arguments aren’t at issue here, because Sullivan so clearly laid out that he was dismissing the case only because the pardon — a pardon that Trump did not claim arose from innocence — mooted his authority to decide on Flynn’s innocence or guilt.

22 Although Plaintiff alleges that several independent prosecutors recommended dismissal of the Criminal Case and that, in response, U.S. Attorney Shea, on behalf of the government, moved to dismiss the criminal information, ECF No. 34 ¶ 148, Plaintiff acknowledges that Judge Sullivan “refused to approve the DOJ’s dismissal of its prosecution” and ultimately dismissed the case only “after [Plaintiff] received a full presidential pardon,” id. at ¶¶ 162, 167. In his Opinion addressing dismissal, Judge Sullivan expressed concerns about the merits of U.S. Attorney Shea’s motion and noted that the facts presented “a close question” regarding whether the court should defer to the prosecutor’s discretion to dismiss the charges but refrained from resolving that question in light of Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 311 at 38.

23 Although “[s]ome courts . . . have considered whether a plaintiff has identified facts surrounding the dismissal . . . that, if proven, would demonstrate that the termination of the criminal case tended to show the plaintiff’s innocence,” Clark v. D.C., 241 F. Supp. 3d 24, 34 (D.D.C. 2017), those cases are inapposite. Here, there is no ambiguity with regard to whether the court’s dismissal order tended to show Plaintiff’s innocence, because the order explained that the termination of the case was not based upon Plaintiff’s potential innocence but instead the case was dismissed as moot in light of Plaintiff’s acceptance of a pardon. Criminal Case, ECF No. 311; Cf. Clark, 241 F. Supp. 3d at 34 (finding allegations of favorable termination sufficient where court granted government’s motion to dismiss without prejudice where neither the motion nor the order offered any information on the basis for dismissal).

In 2020, Judge Sullivan went to a great deal of effort to thread a very fine needle, using Trump’s corrupt pardon as a way to avoid any reversible error even while stopping well short of declaring Flynn innocent. I wrote then that,

it is not relevant to Trump’s pardon of Mike Flynn. But one thing Sullivan did in his opinion was to reject Billy Barr’s new reality in a way that may be invoked for any related matters before DC District courts.

That’s what I find so interesting about this motion to dismiss: DOJ has (quietly) used the reality of Sullivan’s carefully crafted opinion to dismiss Barr’s corrupt attempt to reverse the prosecution and Flynn’s fantasies of innocence.

It’s a rare DOJ rebuke of DOJ. And it’s one entirely enabled by that Sullivan opinion.

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42 replies
  1. Ginevra diBenci says:

    Thank you, EW, for returning to the Flynn beat. I have been wondering about him lately; there is a large Flynn-shaped hole in the Trump indictments (just as there is a large Roger Stone-shaped hole), and his non-appearance there is frustrating, especially as he continues his mission to up-end democracy.

    The salient question about this issue, to me, is why poke the dog now? I would think Flynn would take the apparent win and keep his head down. This legal pursuit seems like an invitation for more scrutiny of his bad acts. I suppose it will get him on TV. Maybe that’s the real point.

    • Peterr says:

      It’s how Flynn rolls.

      When he was pushed out as head of the Defense Intelligence Agency, it was announced as his decision to retire. He was given a nice public retirement celebration, with folks saying all the right things about a retiring general — but he *was* forced out, because he was impossible to work with.

      And Flynn has not forgotten this.

      When he got forced out as Trump’s National Security Advisor, it only added fuel to the fire.

      Getting a pardon may have kept him out of prison, but the way it emphasized his guilt made that fire burn even more strongly.

      To get his revenge, Trump has to get elected again and put Flynn in a position where he can go after those who forced him out of the DIA, those who dug into his ties to Russia and forced him out of the NSA job, and those who dragged him into court. He’s not looking for a TV gig; Flynn is carrying a bunch of grudges and he wants revenge.

      • Adam_09APR2023_1150h says:

        But I’m fairly certain his plea agreement would’ve kept him out of prison. At most maybe 30 days? To twist this ‘slap on the wrist’ into some stupid MAGA martyr narrative is just pathetic.

        [Welcome to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You commented last as “Adam” and this time as “Adam H”; the first is far too common and the second is not compliant with the site’s standard. Your username remains temporarily changed to match the date/time of your first know comment until you have a new compliant username. Thanks. /~Rayne]

        • Leu2500 says:

          His plea was going to keep him out of jail. But he couldn’t keep his mouth shut & tried to wiggle out of it. Sullivan blew up, read him the riot act, told him to go & cooperate more, & that even after cooperating more he might be sentenced to some time in jail instead of probation.

          [Welcome back to emptywheel. <a href="https://www.emptywheel.net/2023/10/05/trump-claims-absolute-immunity/#comment-1018129” rel=”ugc”>FOURTH AND FINAL REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

        • emptywheel says:

          His original plea would have. But what ratcheted up the effort to overturn the plea was his reneging on the plea in summer 2019, followed by Judge Sullivan rejecting all his purported Brady claims in December 2019.

          There was a sentencing memo in January 2020–approved by senior people, probably at least Jay Rosen–that led immediately to this effort.

          That sentencing memo would have resulted in real time. Potentially follow-on perjury charges.

          • Adam_09APR2023_1150h says:

            Which leads to the inevitable conclusion that there must’ve been a Barr-Powell back channel. In what shape or form did this take?

      • tje.esq@23 says:

        To see so many lawyers brazenly facilitate client retribution (or electioneering, or fraud), with little supporting facts or law, as demonstrated in several recent EW posts, is troubling. And this tiny number of vengence-civil-law litigators, and criminal law subverters or co-conspirators, rightly poison the public’s view of the entire profession. Why have post-Watergate Professional Responsibility Rules for lawyers not stifled this recent trend?

        Anyone started drafting this book to capture this complicity? The Lawyers who Doomed the Republic, Billing Top Dollar (and sometimes getting stiffed) until Democracy Fell

  2. MsJennyMD says:

    Michael Flynn quotes:
    “I’ve been called an extremist.”
    “What I believe in is I believe in law.”
    “When you are given immunity that means that you’ve probably committed a crime.”

  3. Konny_2022 says:

    That’s the case where Flynn is seeking compensatory damages of at least 50 million bucks from the federal government, isn’t it?

    I remember following Sullivan’s rulings in the fall of 2020. Thank you for explaining how it’s perhaps paying out almost three years later.

    • Drew in Bronx says:

      Flynn was pardoned for lying to the FBI, but I don’t think he was pardoned for perjuring himself in court. It would indeed be a fun slapdown to take his statements in the lawsuit and prosecute him for the perjury!

      -BMAZ, don’t come at me, it’s humor.

      • earlofhuntingdon says:

        Flynn was pardoned for everything he might have done within the scope of Mueller’s investigatory authority. Trump had a lot of breadcrumbs to vacuum up before the investigatory birds found them.

  4. Savage Librarian says:

    Pied

    With positively no gray hair dyed,
    And top to bottom bona fide,
    As I’ve fully testified:
    “In Truth, I Never Lied.”

    If you check it with our guide,
    Dr. Jekyll/Mr. Hyde,
    And imbibe our full bromide:
    “In Truth, I Never Lied.”

    Inside-outy our broadside,
    If and only when applied,
    Squint a little bit cockeyed:
    “In Truth, I Never Lied.”

    But if you face the true divide
    between “in truth” & “I never lied,”
    you’ll see what really is implied
    “In Truth, I Never Lied.”

    The phrase is parsed & it’s pied
    to misdirect and misguide,
    Of course “In Truth” will override:
    It means the same as, “I Never Lied.”

    A trick of logic magnified
    by what seems to be pushed aside,
    but it’s just another fools’ joyride,
    “In Truth, I Never Lied.”

    In all the years that I have spied
    for a foreign or domestic side,
    I learned how to stay outside:
    “In Truth, I Never Lied.”

    So, if you want what’s certified,
    rinse it with some peroxide,
    Who will take it all in stride:
    “In Lies, I Always Lied?”

    5/23/20

  5. jdmckay8 says:

    I remember that Sullivan episode, including most of what you wrote about it at the time, like it was yesterday. To think GOP raises $$ on investigating Biden/Dem “weaponization” of government… with little to no push back in MSM…

    Just another canary in the mine going toes up, and few notice and fewer give a rip.

    I’d put Flynn in a dead heat with Sydney for who is the most irretrievably bonkers MAGA.

    Beautiful day in New Mexico.

  6. klynn says:

    EW,
    Thank you for taking a look at the Flynn developments. This is quite informative!

    OT
    I knew you “did” something when you tweeted about medical care comparisons for Ireland and US. Did not realize you landed with a Barbie pink cast on your foot and ankle! Will keep sending good health and healing thoughts your way!

    Early today Nicole Sandler had yet to link to the article mentioned on yesterday’s show. (Great show btw!)

    I did a search but I may be getting the title wrong. Are you able to share? Did not if you were allowed as the author.

    Thank you for keeping so much tracked this week with informative insights!

    • emptywheel says:

      I suppose I should post that? Two more weeks of the Barbie pink cast, assuming Limerick’s notoriously shitty hospital doesn’t delay the process.

      I got a lis franc injury. Seemed like a maybe broken toe, but it turned out the broken metatarsal was the least of my worries. Thus the podcasts from my couch.

      What was the article in question, can you describe?

  7. earlofhuntingdon says:

    I’d forgotten how badly written Flynn’s complaint was, and that it resurrected, as if it were a legal term, GW Bush’s pet word, wrongdoers.

  8. WilliamOckham says:

    I’m a little conflicted on this one. I mean, Sullivan knew exactly what he was doing with that dismissal and I agree with what he did. On the other hand, as a true (small-r) republican, I detest the idea of sovereign immunity and would like to see it replaced with a negotiated social compact. To the extent that Sullivan’s actions eviscerated Flynn’s claims, irrespective of sovereign immunity, I can applaud that.

  9. Yogarhythms says:

    Ew,
    Thank you for sharing more fun from FL courts. Flynn’s hilarious 😂 suit is right up there with some of Trump’s MOD’s criminal complaints based on Presidential Immunity. Especially in light of his cognizant signed guilty pleas.

  10. ElvisinGR says:

    Dipping my toe in, and, dang, is it scary. I have been a reader of the emptywheel for a while now, and thoroughly enjoy Marcy’s excellent articles and insight. I also faithfully read the comments, and am scared to death of bmaz. My comment now is just to point out that the links in the sentence after the list of things Flynn has to prove appear to be reversed.
    BTW, Marcy, hello from Grand Rapids, Michigan! The fall colors are beautiful!

    • emptywheel says:

      Welcome! We had to take out a tall chestnut this week. Lots more sun, but if it had still been healthy it would have been turning.

      Meanwhile, I’m sitting on my couch, not enjoying what little colors we get here.

Comments are closed.