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In November, Emmet Sullivan Suggested He Might Not Be Done with DOJ and Mike Flynn

I’d like to return to Judge Emmet Sullivan’s opinion dismissing the Mike Flynn case. This post was written at the time of the opinion.

As I noted at the time, Sullivan did several things in conjunction with the opinion.

The first thing he did was to strike some documents which the government had not authenticated in response to his order that they do so. That may be mere housekeeping, but at a time when it was effectively too late for the government to try to withdraw any of the other documents, it left those exhibits it had authenticated — with at times dodgy claims of authentication and in one case no claim (some Lisa Page and Peter Strzok texts, a significant portion of which were entirely off-topic, which the government admitted it had submitted for shits and giggles) — in his docket.

Then, he issued his order. In it, he granted one of the government’s two requests, to dismiss the case as moot. But in the same order, he denied the government’s motion to dismiss pursuant to Rule 48(a), denying it as moot.

This step may have more significance that most at first realized. That’s because by mooting DOJ’s effort to dismiss the prosecution pursuant to Rule 48(a), Sullivan refused to sanction the effort DOJ had been pursuing since May to undo the Flynn prosecution.

Once Sullivan issued the order mooting the case, DOJ was left with very little ground to further intervene, not least because they themselves declared the case moot.

Then Sullivan issued his opinion explaining how the case became moot. As I noted at the time, in the opinion he:

  • Affirmed the authority of a District Court to review whether a motion to dismiss serves the public good (but stopped short of doing so on mootness grounds)
  • Laid out evidence that the motion to dismiss was pretextual and corrupt (but stopped short of making that finding on mootness grounds)
  • Along the way, made judicial findings of fact regarding the propriety of the Mike Flynn investigation; effectively this was a ruling that the new reality Bill Barr attempted to create in Sullivan’s docket did not replace the prior reality DOJ had presented

I’ll elaborate on that below.

After having issued his opinion, Sullivan then denied as moot a number of other pending requests. With that order he mooted:

  • The government’s request that Flynn get a downward departure on sentencing
  • Flynn’s request to withdraw his guilty plea
  • Flynn’s request to dismiss the case based on a claim of prosecutorial misconduct
  • A Flynn request to force Covington & Burling to turn over an expansive set of documents, including their own internal discussions about ethics or about the case itself
  • A Flynn request to withdraw those three earlier requests
  • A really belated Flynn demand that Sullivan recuse from the case
  • Amicus John Gleeson’s request for clarification about what should happen given Flynn’s petition for a writ of mandamus
  • Flynn’s demand that Judge Sullivan strike the communications from Peter Strzok and Andrew McCabe about the alterations made to their documents submitted in the docket

Mostly, this is housekeeping, the mooting of all pending issues in the case. Except it has the effect of removing any claim that Flynn might have an interest in Sullivan’s recusal. Indeed, that’s a step Sullivan noted explicitly in the opinion.

In that motion Mr. Flynn requested, among other things, that the Court grant the government’s motion to dismiss pursuant to Rule 48(a) and that, upon dismissal of the case, the Court recuse itself from further proceedings. After the Court dismisses the case as moot pursuant to the presidential pardon, the Court will deny the motion for recusal as moot.

By mooting the motion to strike, Sullivan similarly moved any claim Flynn had in the Strzok and McCabe interventions going forward.

Of particular interest, that means that not only do DOJ’s dubiously authenticated documents remain before Sullivan, but so does the correspondence from Strzok and McCabe making it clear that their documents were altered (though their assertions that Jocelyn Ballantine lied to the court are not in the docket).

To sum up then: DOJ’s altered documents and evidence that they were altered remains before Sullivan, and any interest that DOJ or Flynn have in this docket — including a claim that Sullivan is biased and so must recuse — has been officially mooted.

With that background laid out, I want to look at a few more things that Sullivan did with his order.

  • Reaffirmed Flynn’s guilt as a legal question
  • Laid out the President’s interest in the pardon
  • Set the operative time of Flynn’s pardon
  • Did not address Flynn’s false statements before him
  • Observed the scope of the pardon but agreed that it covered Flynn’s false statements crime

Reaffirmed Flynn’s guilt as a legal question

First, Sullivan made it clear in several different ways that Flynn’s guilty verdict remains.

In the section laying out the posture of the case, Sullivan described how Flynn pled guilty twice.

Under oath and with the advice of counsel, Mr. Flynn pled guilty to the crime on December 1, 2017.

[snip]

On November 30, 2017, Mr. Flynn entered into a plea agreement with the government upon the advice of counsel. See Plea Agreement, ECF No. 3 at 10. Judge Rudolph Contreras accepted Mr. Flynn’s guilty plea on December 1, 2017, finding that Mr. Flynn entered the plea knowingly, voluntarily, and intelligently with the advice of counsel.

[snip]

On December 18, 2018, this Court accepted Mr. Flynn’s guilty plea a second time. Sentencing Hr’g Tr., ECF No. 103 at 5, 16. During that hearing, the Court extended the plea colloquy in view of Mr. Flynn’s statements in his sentencing memorandum, which raised questions as to whether Mr. Flynn sought to challenge the conditions of the FBI interview. See generally Def.’s Mem. in Aid of Sentencing, ECF No. 50 at 6-18. Under oath, Mr. Flynn confirmed that his rights were not violated as a result of the circumstances of his January 24, 2017 FBI interview and the allegations of misconduct against FBI officials. Id. at 11-12. And Mr. Flynn declined the Court’s invitation for the appointment of independent counsel to advise him. Id. at 9-10.

He also noted that when Flynn moved to dismiss his guilty plea, DOJ never got as far as responding (he doesn’t note that, rather than doing so, they moved to dismiss the prosecution).

The government did not file a response to Mr. Flynn’s motions to withdraw his guilty pleas due to its incomplete review of Mr. Flynn’s former counsel’s productions relevant to Mr. Flynn’s claims of ineffective assistance of counsel, as well as a dispute between Mr. Flynn and his former counsel.

Then, in the section on the legal status of a pardon, Sullivan emphasized that accepting a pardon may be an admission of guilt. Note the emphasis is Judge Sullivan’s.

On the other hand, a pardon does not necessarily render “innocent” a defendant of any alleged violation of the law. Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a “confession” of guilt. See Burdick, 236 U.S. at 94 (“[A pardon] carries an imputation of guilt; acceptance a confession of it.”); see also United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir. 2001) (“[A]cceptance of a pardon may imply a confession of guilt.” (citing In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994)). As Chief Justice Marshall wrote, “[a] pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. 150, 150 (1833) (emphasis added). In other words, “a pardon does not blot out guilt or expunge a judgment of conviction.” In re North, 62 F.3d at 1437. Furthermore, a pardon cannot “erase a judgment of conviction, or its underlying legal and factual findings.” Arpaio, 2017 WL 4839072, at *1 (citing United States v. Crowell, 374 F.3d 790, 794 (9th Cir. 2004)); but see Schaffer, 240 F.3d at 38 (vacating “all opinions, judgments, and verdicts of this court and the District Court” where “[f]inality was never reached on the legal question of [the defendant’s] guilt” (emphasis added)).

After citing the Arpaio precedent, where the corrupt sheriff tried to expunge his guilty status, Sullivan then cited the Schaffer precedent in the DC Circuit treating the question of a defendant’s guilt as a legal question, not a political one. Sullivan added emphasis to four things in this opinion. Two of them, appearing in this passage, focus on two circumstances that mean Flynn is still guilty of his crimes. By giving Flynn a pardon, Trump excused the consequences for his crimes, but he didn’t change the legal fact that Flynn was guilty, and Flynn’s own acceptance of the pardon imputes that he committed the crime.

Note, I don’t think Sullivan was making a general comment about pardons generally (and I also think it a mistake to read his citation to Burdick as a general comment about accepting pardons amounting to an admission of guilty; he instead seems to be saying it might be). He was making a comment about this one, the legal question before him. Sullivan issued a ruling, then, that circuit and Supreme Court precedent mean that Flynn’s guilty verdict remains and that by accepting a pardon, he confessed to his guilt.

Laid out Trump’s interest in the pardon

Before the sections in which Sullivan analyzes why DOJ’s claims in moving to dismiss the prosecution are bunk, Sullivan first described how interested Trump was in Flynn’s prosecution. Along the way, he notes Sidney Powell’s admission at a September hearing that she had spoken with Trump and asked Trump not to pardon Flynn.

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. According to Mr. Gleeson, between March 2017 and June 2020, President Trump tweeted or retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF No. 225 at 66. This commentary has “made clear that the President has been closely following the proceedings, is personally invested in ensuring that [Mr.] Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted [Mr.] Flynn.” Id.

At the September 29, 2020 motion hearing, Mr. Flynn’s counsel, in response to the Court’s question, stated that she had, within weeks of the proceeding, provided the President with a brief update on the status of the litigation. Hr’g Tr., ECF No. 266 at 56:18-20. Counsel further stated that she requested that the President not issue a pardon. Id. at 56:23-24. However, the President has now pardoned Mr. Flynn for the actions that instigated this case, among other things. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. And simultaneous to the President’s “running commentary,” many of the President’s remarks have also been viewed as suggesting a breakdown in the “traditional independence of the Justice Department from the President.” See, e.g., Amicus Br., ECF No. 225 at 67-68; id. at 68 (quoting Excerpts from Trump’s Interview with the Times, N.Y. Times (Dec. 28, 2017), https://www.nytimes.com/2017/12/28/us/politics/trumpinterview-excerpts.html) (reporting President Trump’s statement that he enjoys the “absolute right to do what I want to do with the Justice Department”).

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.

That is, it was in light of Trump’s claimed “absolute right to do what [he wants with DOJ],” that Sullivan reviewed DOJ’s claimed excuses for blowing up the prosecution and found them pretextual.

Set the operative time of Flynn’s pardon

Perhaps most curiously, Sullivan went to some lengths to mark the precise time of Flynn’s pardon: November 25, 2020, at 4:08PM ET.

Rather than treating the filing of the notice of appeal or the appeal itself (the time of which is suspect) as operative, Sullivan instead treated Trump’s tweet announcing the pardon as definitive, going so far as including a legal basis to depend on Trump’s Tweets as operative.

On November 25, 2020, President Trump granted Mr. Flynn a “full and unconditional pardon” for: (1) “the charge of making false statements to Federal investigators,” in violation of 18 U.S.C. § 1001, as charged in the Information in this case; (2) “any and all possible offenses arising from the facts set forth in the Information and Statement of Offense” filed in this case “or that might arise, or be charged, claimed, or asserted, in connection with the proceedings” in this case; (3) “any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel appointed on May 17, 2017, including the initial Appointment Order No. 3915-2017 and subsequent memoranda regarding the Special Counsel’s investigatory authority”; and (4) “any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings” in this District or in the United States District Court for the Eastern District of Virginia. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1; see also Donald Trump (@realDonaldTrump), Twitter (Nov. 25, 2020, 4:08 PM), https://twitter.com/realDonaldTrump/status/1331706255212228608.6

6 The Court takes judicial notice of President Trump’s tweet as the veracity of this statement “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017), vacated on other grounds, 138 S. Ct. 377 (2017).

Only after pointing to Trump’s tweet of 4:08PM on November 25, 2020 as the operative moment of Trump’s pardon of Flynn did Sullivan mention the filings in his docket as basis for the proof that Flynn had accepted the pardon.

Mr. Flynn accepted the pardon, and Mr. Flynn and the government subsequently moved to dismiss this case as moot. See Consent Mot. Dismiss, ECF No. 308 at 2.

I don’t know why Sullivan did this. But he did. He set a time — 4:08 PM ET on November 25, 2020 — when Trump’s pardon of Flynn went into effect, based on the legal authority of Trump’s Tweet, and then made it clear that after the time of the pardon, Flynn accepted it.

Did not address Flynn’s false statements before him

Almost as interesting as the way Sullivan set the precise time when Trump issued a pardon for Flynn is what Sullivan did with the lies Flynn told in his own court. As a reminder, Flynn submitted a declaration that materially conflicted with sworn statements he had made before two judges and the grand jury. When he appointed John Gleeson, Judge Sullivan asked Gleeson to review whether he should consider holding Flynn in criminal contempt. When he reviewed that in his history of the case, Sullivan stated that Gleeson had convinced him that holding Flynn in contempt would be an atypical way of dealing with the issue.

On May 13, 2020, the Court appointed John Gleeson (“Mr. Gleeson”) as amicus curiae to present arguments in opposition to the government’s Rule 48(a) motion and to address whether Mr. Flynn should be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401; Federal Rule of Criminal Procedure 42; the Court’s inherent authority; and any other applicable statutes, rules, or controlling law.3

3 The Court is persuaded by the arguments presented that issuing an Order to Show Cause would amount to an atypical action and so does not address this issue in this Memorandum Opinion.

Gleeson had favored taking Flynn’s further perjury into account at sentencing, but now Sullivan won’t be sentencing Flynn. DOJ had said that the proper way to deal with such perjury is to refer it to DOJ for prosecution.

Sullivan’s language here didn’t say he’s not going to deal with Flynn’s perjury; rather, he just said he’s not dealing with it in this particular opinion.

Observed the scope of the pardon but agreed that it covered the issues in this docket

That’s important for Sullivan’s discussion of the power of Trump’s pardon. Sullivan laid out the awesome scope of the pardon power. Before he did so, though, he first laid out the power of the courts to interpret the law, including the scope of the pardon power specifically, tying the pardon power to Marbury versus Madison.

Though the Constitution confers the pardoning power on the President generally, it is well-established that “the judiciary has served as the supreme interpreter of the scope of the constitutional powers since Marbury v. Madison.” See William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 506 (1977); see also Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

[snip]

Thus, the Supreme Court in Marbury laid the foundation for the view that the President has a “general, unqualified grant of power to pardon offenses against the United States.” The Laura, 114 U.S. 411, 413 (1885).

Among the judgements he relies on showing the Supreme Court exercising judicial review and finding the pardon power unlimited, however, Sullivan cites language noting that pardons can only be issued after their commission.

In view of the principles set out in Marbury, the Supreme Court thereafter instructed that the President’s power to pardon is “granted without limit.” United States v. Klein, 80 U.S. 128, 147 (1871); see also Ex parte Garland, 71 U.S. 333, 380 (1866) (“This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.”). The “executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.” Ex parte Grossman, 267 U.S. 87, 120 (1925) (emphasis added).

This was the third of four things to which Sullivan added emphasis in his opinion — that according to Supreme Court precedent, pardons can only issue after the offense has been committed.

And that’s interesting, in an opinion that marked the exact moment when this pardon was granted, in the language Sullivan used to apply the precedent he reviews on pardons to the pardon before him.

Sullivan observed that the pardon itself is very broad, observing as I did that the pardon “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.” But then Sullivan said the only decision before him was just the crime Flynn twice pled guilty to.

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. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. 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.” See Consent Mot. Dismiss, ECF No. 308 at 2. 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. However, the pardon “does not, standing alone, render [Mr. Flynn] innocent of the alleged violation” of 18 U.S.C. § 1001(a)(2). Schaffer, 240 F.3d at 38. Accordingly, in view of the Supreme Court’s expansive view of the presidential pardon power, the Court grants the consent motion to dismiss this case as moot. See, e.g., id. [my emphasis]

Of course, that’s not all that DOJ had asserted were before Sullivan. It had also included the Turkey FARA crimes (which were a benefit of Flynn’s guilty plea) and the lies Flynn told before Sullivan and the grand jury. This opinion is silent on the pardon’s applicability to them, even though both crimes were committed before the pardon.

The language at the end here may become important in the future. As noted above, DOJ had asked Sullivan both to dismiss the prosecution and to moot it. Sullivan did only the latter, asserting that the pardon only extends to political questions, not legal ones. Even as he made that distinction, he reemphasized that Flynn was guilty of the crime he was being pardoned for.

Whatever else he did, Sullivan made it clear that, under pressure from the President, DOJ went to some lengths to try to exonerate a guilty man.

Update, January 21: In a media lawsuit asking for the declassification of documents pertaining to Flynn’s sentencing as well as the one for his warrants, Judge Sullivan issued an order on Tuesday (the day before inauguration), for a status update on remaining sealed language to be submitted on January 26. I don’t expect much new to be declassified. There’s one passage about Flynn’s cooperation that DOJ might be able to unseal; given the focus of questions in Flynn’s early interviews, I wonder if it pertained to Flynn’s involvement in the fall 2016 Egyptian discussions that Mueller suspected ended up in a $10 million bribe, an investigation that was closed by Bill Barr since the last unsealing. But I do expect it will reveal whether Jocelyn Ballantine under whose discretion altered documents were submitted to the main Flynn docket, remains the AUSA in control of this case.

Update: This post seems rather quaint given how Mike Flynn called for martial law twice in the lead up to his QAnon followers attacking the Capitol. And as WaPo reported last night, Mike Flynn’s brother, Lieutenant General Charles Flynn, was part of the DOD call that responded slowly to deploying the National Guard as the insurgents overran the Capitol.

Emmet Sullivan’s Revenge: Rupert Murdoch’s Rag Calls Mike Flynn’s Actions “Tantamount to Treason”

Once upon a time, Trump loyalists were thrilled that Judge Emmet Sullivan had gotten Mike Flynn’s case after Rudolph Contreras recused. They were sure that a judge who had fearlessly taken on prosecutorial abuse in the past would find prosecutorial abuse in the sweetheart False Statements charge that General Flynn got in lieu of a Foreign Agent charge.

In the days before Flynn’s scheduled sentencing two years ago, for example, Rupert Murdoch employee Kim Strassel stated with confidence that something had concerned the judge when he asked to see the documents Flynn claimed suggested misconduct.

It’s clear that something has concerned the judge—who likely sees obvious parallels to the Stevens case. The media was predicting a quick ruling in the Flynn case. Instead, Judge Sullivan issued new orders Wednesday, demanding to see for himself the McCabe memo and the Flynn 302. He also ordered the special counsel to hand over by Friday any other documents relevant to the Flynn-FBI meeting.

Given his history with the FBI, the judge may also have some questions about the curious date on the Flynn 302—Aug. 22, 2017, seven months after the interview. Texts from Mr. Strzok and testimony from Mr. Comey both suggest the 302 was written long before then. Was the 302 edited in the interim? If so, by whom, and at whose direction? FBI officials initially testified to Congress that the agents did not think Mr. Flynn had lied.

Judges have the ability to reject plea deals and require a prosecutor to make a case at trial. The criminal-justice system isn’t only about holding defendants accountable; trials also provide oversight of investigators and their tactics. And judges are not obliged to follow prosecutors’ sentencing recommendations.

Then Sullivan got questions on those issues answered and raised more pressing questions — such as what charges Flynn avoided with his plea deal.

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

MR. VAN GRACK: The government did not consider — I shouldn’t say — I shouldn’t say did not consider, but in terms of the evidence that the government had at the time, that was not something that we were considering in terms of charging the defendant.

THE COURT: All right. Hypothetically, could he have been charged with treason?

MR. VAN GRACK: Your Honor, I want to be careful what I represent.

THE COURT: Sure.

MR. VAN GRACK: And not having that information in front of me and because it’s such a serious question, I’m hesitant to answer it, especially because I think it’s different than asking if he could be charged under FARA or if there were other 1001 violations, for example. [my emphasis]

Those comments fed attacks from Fox News personalities in the two years that followed and Judge Sullivan became a more pointed target of employees of the News Corp empire. After he refused to immediately dismiss the prosecution against Mike Flynn, Fox personalities accused him of bias.

Sullivan earned the ire of Fox News hosts who have been arguing that Flynn’s prosecution was the canary in the coal mine of a coup against President Trump.

Former New York state judge Jeanine Pirro said Wednesday night that Sullivan should “recuse himself” from the case, adding “he should be embarrassed to put a robe on.”

“And now what he’s doing is he’s poisoning the 2020 election by trying to make it look like [Attorney General] Bill Barr,” she said. “He’s trying to destroy the whole thing so that Barr looks like the villain here.”

Sean Hannity offered an extensive broadside against Sullivan later in Fox’s prime-time programming.

“Mr. Sullivan, what part of General Flynn being ambushed and set up by [former FBI deputy director Andrew] McCabe and [former FBI director James] Comey don’t you understand?” Hannity said Wednesday night, accusing Sullivan of taking a “clearly political stand.”

He added: “You botched this from Day One, and you had a bias from Day One,” he seethed. “You reek of ignorance, you reek of political bias!”

After Neomi Rao ordered Judge Sullivan to rubber stamp Flynn’s exoneration, for example, Greg Jarrett included it in a long attack on the judge’s insistence on acting like a judge.

Again, Sullivan balked. Something was amiss. At this point, it became clear that Sullivan was not a neutral or objective jurist dedicated to following the law. He was a rogue judge with an agenda. His decisions reeked of dead fish.

[snip]

It’s anyone’s guess whether Sullivan will grudgingly admit that he was wrong — flagrantly so. After all, this is the same guy who falsely and preposterously accused Flynn of “treason” during a previous court hearing, then recanted when he realized (with prompting) that what he’d said was not just dumb, but anathema to the law governing treason.

All of this leads me to suspect that this judge’s grasp of the law is embarrassingly feeble. His ability to recognize his own disqualifying bias is shamefully absent.

In a piece declaring that “Mr. Flynn has finally received justice” earlier this month (after Mike Flynn first called for martial law), Strassel complained that Sullivan was churlish for noting that Flynn’s guilty plea, as a legal issue, remained intact.

Judge Sullivan finally, belatedly, churlishly dismissed the Flynn case as moot on Tuesday, two weeks after President Trump pardoned the former national security adviser. But the self-important Judge Sullivan couldn’t resist delivering a parting “verdict.” He issued a 43-page opinion in which he all but declared Mr. Flynn guilty of lying and perjury and the entire Justice Department corrupt.

But now the boss has weighed in. In an editorial begging Trump to accept his loss and work to save the Senate today, the NY Post describes Sidney Powell as a crazy person and Flynn’s call for martial law “tantamount to treason.”

Sidney Powell is a crazy person. Michael Flynn suggesting martial law is tantamount to treason. It is shameful.

To be clear, Flynn’s call for martial law wasn’t treason, just as secretly working for Turkey while serving as Trump’s top national security advisor wasn’t either.

But both Judge Sullivan and Rupert Murdoch appear to agree: Mike Flynn sold out this country.

The Three Types (Thus Far) of Trump Mueller Pardons

To date, Trump has pardoned five people who were prosecuted by Mueller. I’m seeing a good deal of misunderstanding about what those pardons mean for any legal proceedings going forward, so I’d like to address some of that.

First, a lot of people say that accepting a pardon is tantamount to accepting guilt, under Burdick v.United States. It’s not. It’s narrower, though importantly goes to questions about whether a witness who has been pardoned has to testify or not. It also says that someone who has been pardoned must inform the court of the fact for it to be valid in any legal proceeding before the court.

That said, claims that Trump flunkies who’ve been pardoned have to testify are also too broad. If the people have any remaining legal exposure (as I’ll explain, Roger Stone and Paul Manafort do), they can still invoke the Fifth. That’s also true if they have state exposure for something like fraud or tax evasion. But in cases where the pardoned crime is only federal, such as Papadopoulos’ lies, it would be easy for prosecutors to immunize him in case he invoked his Fifth Amendment privileges, effectively forcing him to testify on penalty of contempt.

Thus far, Trump has issued three kinds of pardons for people prosecuted by Mueller:

  • Pardons for people with no further known (Mueller) legal exposure
  • Pardons for people with potentially grave further legal exposure
  • Fruit of the poison tree pardon for anything Mueller touched

Alex Van der Zwaan and George Papadopoulos:

Both Van Der Zwaan and Papadopoulos were pardoned for the single False Statements charge against them. Neither is known to have committed another crime. In Papadopoulos’ case, however, things could get dicey on several points. Trump forgave his $9,500 fine, which was the amount Papadopoulos accepted from suspected Israeli spooks. If he asks for that back that may raise questions about his exposure on FARA grounds. In addition, Papadopoulos has already testified before Congress that he called Marc Kasowitz after he was first interviewed by the FBI. If there were a larger prosecution about Trump’s obstruction, he might have been able to plead the Fifth for making that call — except he has already testified to it.

Papadopoulos withheld documents from Congress. With a DOJ that can enforce subpoenas, he might be asked to share those documents, which may require him to testify contrary to his 2018 OGR/HJC testimony.

If DOJ decided to reopen the investigation into a suspected Egyptian bribe to Trump because serving a subpoena on Trump Organization would now be less controversial than it was last summer, then Papadopoulos might be a key witness in that investigation, though since that’s unrelated to his charged false statements, he could still invoke the Fifth if questioned about it.

Roger Stone and Paul Manafort:

Like Van der Zwaan and Papadopoulos, Stone and Manafort were just pardoned for the crimes that they were found or pled guilty to, the money laundering, tax evasion, and FARA crimes in Manafort’s case, and the cover-up crimes in Stone’s case. For both, however, that’s not the full extent of what they were investigated or might be witnesses for.

Before I get there, let me note that multiple sources are claiming that, because Trump included Manafort’s criminal forfeiture in the language of his pardon, he’ll get his ill-gotten gains back. I’m not an expert on this, but I do know that Manafort also civilly forfeited these goods in his plea agreement.

So to attempt to reverse this forfeiture, Manafort would have to spend a great deal of money litigating it, and it’s not at all clear it’d work.

Manafort was also referred for suspected FECA violations involving two PACs that, prosecutors suspected, he got paid through via a kickback system. These cases must be closed, because they were unsealed in the Mueller Report back in September. But Manafort may face more scrutiny on them if DOJ investigates Trump’s other corrupt PACs.

Unless he, too, is pardoned, Konstantin Kilimnik remains under investigation. That’s an area where things might get more interesting for Manafort, because during the period when he was purportedly cooperating, he lied about the fact that he had conspired with Kilimnik. In any case, until the Kilimnik and Oleg Deripaska investigations are closed, Manafort has some exposure.

Things are more complicated still for Stone. There were at least two investigations into Stone — probably on conspiracy and foreign agent crimes — still active in April. If the redactions if Mueller 302s are any indication, Barr shut parts of that investigation down since, which will be of interest on its own right (Congress learned of these ongoing investigations when they got unsealed portions of the Mueller Report that have only recently been made public, and I know there is some interest in learning what those investigations were or are, and that was true even before any discussions about Trump’s abuse of pardons).

In any case, the investigation into a pardon for Julian Assange was active at least as recently as October. Stone has already called on Trump to pardon Assange since his own pardon, potentially a new overt act in a conspiracy. And Trump might well pardon Assange; even pardoning him for the crimes currently charged would be a new overt act in that conspiracy, which would implicate Stone. So even if Barr shut that investigation down, there is already reason to reopen it.

So while Barr may have tried to clean up the remaining criminal exposure against Stone, it’s not clear he could succeed at doing so, much less without creating problems for others going forward.

Mike Flynn:

As I have written, Mike Flynn’s pardon was constructed in a way that attempted to eliminate all criminal exposure that might arise from anything associated with the Mueller investigation for him. In addition to pardoning Flynn for the false statements charge he pled guilty to, it pardons him for lying about being an Agent of Turkey, for being an Agent of Turkey, and for lying to Judge Sullivan.

But it also attempts to pardon Flynn for any crime that might arise out of facts known to Mueller. While, generally, I think the pardon power is very broad, this effectively tried to pardon Flynn for an investigation, not for crimes. Plus, the broadness of the pardon may backfire, insofar as it would strip Flynn of the ability to plead the Fifth more broadly. Even just a retrial of Bijan Kian (unless Trump pardons him and Mike Jr) might force Flynn to commit new crimes, because both telling the truth and lying about his secret relationship with Turkey would be a new crime.

Given his seditious behavior, Flynn might have entirely new criminal exposure by the time Joe Biden is sworn in any case. But the attempt to be expansive with Flynn’s pardon might backfire for him.

Of the five Mueller criminals pardoned so far, only Van der Zwaan is clearly free of danger going forward.

And these five don’t even cover some of the most complex pardon recipients. Any Assange pardon may be the most obviously illegal for Trump (save a self-pardon), because it would involve a quid pro quo entered before he was elected. With Steve Bannon, Trump will need to pardon for another crime, fraud associated with Build the Wall, but if it covers Mueller, it may make it easier for Bannon to repeat what truths he already told to the grand jury. With Rudy Giuliani, Trump will need to pardon for unidentified crimes currently under investigation, but also Rudy’s efforts to broker pardons, which may make the pardon itself more dicey. With Trump’s children (including Jared Kushner), I assume he’ll offer a Nixon type pardon for all crimes committed before the day of pardon. But there may be ways to make them admit to these crimes.

Billy Barr is the best cover-up artist in the history of DOJ. But Trump is attempting to pardon himself out of a dicier situation than Poppy Bush was in Iran-Contra. Plus, even assuming Mueller’s team left everything available for Barr’s discovery, Barr may be hamstrung by the fact that he doesn’t believe in most of the crimes Trump committed, something that could become especially problematic as the full extent of Trump’s dalliance with Russia becomes known going forward. Barr didn’t support some of these pardons, like a hypothetical Assange one. And now, in his absence, Trump has grown increasingly paranoid about Pat Cipollone, who will have to shepherd the rest.

The pardon power is awesome and fairly unlimited. But it’s not yet clear the Mueller pardons will do what Trump hopes they will. With virtually all of them, there are loose strings that, if they get pulled, may undo the immunity Trump has tried to offer.

The Price of “Freedom”: What Mike Flynn Squandered in the Two Years He Would Have Served Probation

Two years ago today, Mike Flynn went before Judge Emmet Sullivan to be sentenced. Had things gone as planned, he may well have been sentenced to two years of probation, meaning that — today — he would be a free man, a felon (though a felon still in the queue for a Trump pardon), but nevertheless a man who had paid his debt to society.

Things didn’t go as planned.

In the days before his sentencing, Flynn got cute by introducing details about the circumstances of his interview, details which he had known about when he pled guilty just a year before and certainly knew when he pled guilty again two years ago. Judge Sullivan may well have sentenced Flynn to a short sentence in any case — no more than a month, or more realistically the two weeks Papadopoulos got without any cooperation (in which case Flynn would still likely have been done with probation by inauguration). But he would likely have given great deference to the government support for a probation sentence had Flynn not complained about the way he was treated.

But having complained, Judge Sullivan required that DOJ share the documents Flynn had relied on, including Andrew McCabe’s notes setting up the interview, the 302 from his original interview, and a 302 of an interview from Peter Strzok (over time, DOJ would release serially less redacted copies, with further damaging details); together, those documents started to make it clear the degree to which Flynn was protecting Trump.

Sullivan put Flynn back under oath and made him swear that he knew it was a crime to lie but did it anyway.

And he expressed disgust for what Flynn had done.

You know, I’m going to take into consideration the 33 years of military service and sacrifice, and I’m going to take into consideration the substantial assistance of several ongoing — several ongoing investigations, but I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

[snip]

I’m not hiding my disgust, my disdain for this criminal offense.

When Flynn got cute, I warned, “be careful of what you ask for.” I had no idea at the time how right I was. 

Consider what Flynn has lost in the two years he might have been serving probation, all in an attempt to avoid accountability for lying to protect Trump. He:

  • Replaced competent lawyers with incompetent TV grifters
  • Released evidence he lied to his lawyers doing the FARA filing
  • Consented to waive privilege so DOJ could find more proof he lied
  • Debunked a slew of conspiracy theories
  • Got really damning transcripts released
  • Served 708 days of supervised release
  • Joined a gang
  • Got one of his gang members prosecuted for death threats against Judge Sullivan
  • Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
  • Exposed his son to further prosecution
  • Exposed DOJ to further scrutiny
  • Proved Judge Sullivan’s point about selling the country out

Replaced competent lawyers with incompetent TV grifters

In June, Rob Kelner made official something that Sidney Powell has more recently revealed had happened earlier: Flynn replaced the very competent Covington & Burling (who, records would later show, had written off millions of dollars of work they did as the FARA investigation turned into a prosecution) for Sidney Powell.

This was a mistake.

Along the way, Powell made several errors of procedure which would have been important if she had a case. For example, Powell introduced a motion to dismiss in her purported Brady claim, somewhat mooting the claim for when she raised it again the next year. Powell did not object to Judge Sullivan’s response to the motion to dismiss in timely fashion. Powell never moved to recuse Sullivan until September 2020, effectively waiving accusations she floated throughout the process. These were all procedural issues that, even if her argument were sound, she’d also have to get correct, which she did not.

She also did a number of things that Sullivan found to be unethical, including misciting things and the initial letter to Barr (though he did not sanction her).

Most insanely, Powell had Flynn submit a sworn declaration that materially conflicted with his two earlier guilty allocutions as well as his EDVA grand jury testimony. Effectively, to beat a false statements charge he might have gotten probation for, Powell had Flynn perjure himself.

As this post makes clear, Powell got Flynn less than nothing for his troubles. In early January, after twice delaying to get the requisite approvals from Bill Barr’s DOJ, prosecutors called for prison time, noting that Flynn had disclaimed his guilty plea and blown up his cooperation.

Worse, after the way Powell went nuclear on Covington, accusing them of incompetence and ethical failures, no sane attorneys would represent Flynn going forward. If he gets back into legal trouble, he’ll be stuck with someone whose approach to lawyering amounts to propaganda rather than sound legal advice. Without the bailout of a pardon, then, things could work out far worse going forward.

Released evidence he lied to his lawyers doing the FARA filing

Immediately after replacing Kelner, Flynn’s lawyers tried to use Judge Anthony Trenga’s rulings from EDVA (which were premised on moves DOJ had to take after Flynn reneged on his prior testimony) to suggest the whole thing was a set-up. Even in her first submission, Sidney Powell was making demonstrably misleading claims. Importantly, some of the evidence she submitted — particularly with respect to the purpose of an election day op-ed Flynn published under his own name — proved that Flynn lied to his lawyers. For example, Powell submitted evidence to both dockets showing Flynn had claimed, to his Covington lawyers, to have written the op-ed published on election day to help Trump, when in fact he had instead pasted his name on it to serve the government of Turkey.

Consented to waive privilege so DOJ could find more proof he lied

Starting in fall 2019 and then doubling down after DOJ called for prison time, Powell started accusing Covington & Burling of having an unwaivable conflict. DOJ provided documentation that Flynn had been alerted to the possible conflict, but waived it. Flynn provided more evidence that DOJ had gotten that waiver. Flynn provided evidence that Covington not only told him, repeatedly, about the potential conflict, but arranged to have another lawyer he could consult about it. But still Powell persisted in accusing Covington of setting Mike Flynn up for a fall.

In response, DOJ requested and got Flynn to waive attorney-client privilege so DOJ could show more evidence than they already had that Flynn lied to his lawyers in preparation of the FARA filing. DOJ was about to submit their first collection of this proof to the docket when Barr moved to dismiss the prosecution.

But that evidence remains at DOJ and the limits on the waiver — basically prohibiting its use against Flynn — don’t cover its use for a retrial of Bijan Kian (possibly with Flynn’s son added). Indeed, Judge Trenga already approved a limited waiver of privilege for the first trial. While DOJ would have to request to use this information in such a trial, it has possession of it and knows what it includes.

Debunked a slew of conspiracy theories

The first thing Sidney Powell did after she fully took over the case was, in the guise of accusing DOJ of failing to comply with Judge Sullivan’s standing Brady order, accuse DOJ of withholding material information. The vast majority of these claims were conspiracy theories with no more basis than Powell’s bullshit claims that dead Hugo Chavez stole the election for Joe Biden. They include claims that:

  • A meeting between Bruce Ohr and Andrew Weissmann harmed her client, who was investigated by none of them
  • Nellie Ohr had any role in Flynn’s prosecution
  • Reporting from Stefan Halper was key to the predication of an investigation into Flynn, including that an allegation Svetlana Lokhova honey trapped him
  • A claim that Joseph Mifsud was at the RT Gala Flynn was paid to attend
  • Section 704b spying that Mike Flynn supervised briefly had instead been focused on him
  • A claim, repeatedly reported in frothy right propaganda, that McCabe had said, “First we fuck Flynn, then we fuck Trump”
  • A claim there was an original 302 that didn’t match every other document in the case

This might be thought of as a reverse subpoena to DOJ — and it matched a letter Powell sent Bill Barr, which prosecutors shared with Sullivan in their response (and which he’d return to after Barr attempted to blow up the prosecution altogether). Much of the material has been released in the last year. It doesn’t say what she imagined it would say, and much of it directly debunked her conspiracy theories.

Along with these conspiracy theories, Powell made false claims about the proceedings before Sullivan, claiming Brandon Van Grack never provided the damning texts between Peter Strzok and Lisa Page, that summaries Judge Sullivan had approved were inadequate,

Both DOJ and Sullivan himself mapped out each alleged lie and showed where it appeared in the 302s. DOJ also submitted all the 302s, to show they never wavered in their content. Much later, DOJ submitted notes from a meeting shortly after the interview, showing Strzok described the interview just as it appeared in notes and all copies of the 302.

Of particular import, between Flynn’s team and DOJ, they released various filings showing how diligently DOJ had investigated the “Fuck Flynn, fuck Trump” allegation, including a statement from Strzok and a 302 from Lisa Page, as well as allegations that McCabe pressured agents to alter the 302 (with a 302, presumably of Pientka, debunking that claim). Flynn even produced evidence that Flynn knew of the allegation almost a year before he waived any concerns with it.

With regards to the Halper claim, DOJ submitted the opening EC into Flynn, showing that Lokhova was not mentioned at all. Flynn ultimately submitted the draft closing communication from the file which showed Bill Barnett — a pro-Trump agent who was skeptical of many parts of the investigation into Flynn — only got the Lokhova allegation later in 2016, and he dismissed it without much investigation.

Got really damning transcripts released

At several different points in the process, the government released transcripts it otherwise might not have. In the wake of the Mueller Report release, for example, Judge Sullivan ordered the government to release a transcript and audio of John Dowd calling Rob Kelner to pressure him to keep providing information regarding the Flynn interviews.

With their revised sentencing memo, prosecutors submitted Flynn’s grand jury testimony from EDVA (along with supporting exhibits), where he testified under oath that he always knew the Turkish government was his client.

Separate from this docket, but part of the same effort to discredit the Mike Flynn prosecution, the government released the transcripts of Flynn’s calls with Kislyak. They’re damning. They show Flynn kept making asks of Kislyak (including in response to sanctions), was easily manipulated by the Russian Ambassador, and tacitly agreed that Russia and the Trump Administration were on the same side against the US government. Importantly, the transcripts also show that Trump knew of the calls between Flynn and Kislyak (and subsequently released documents show that Flynn was with Trump for the one transcript DOJ has not yet released. These would never in a million years have been released normally.

Now, they may be a means of holding Trump accountable in the future. These transcripts now become admissible. The Mueller Report conclusion that there was some evidence Trump knew of Flynn’s calls but not enough to charge was probably based on the reality that DOJ would never submit such transcripts at trial (and indeed DOJ refused to share them with Judge Sullivan when he first asked). But now that they’re public, they would be fully available in any proceeding against Trump or Flynn going forward.

Served 708 days of supervised release

Had Flynn been sentenced to two years of probation, as was a real possibility, he would have served 731 of supervised release. As it was, Flynn served 708 days under release conditions, conditions Sullivan made stricter after the aborted sentencing hearing once he realized Flynn had gotten special treatment (though he relaxed those conditions after some months). The better part of this delay in Flynn’s period of supervised released was caused by Flynn himself. 

So effectively, Flynn served most of the sentence he would have served had he not blown up his cooperation deal, with nothing to gain from it besides a pardon of desperation he might have gotten anyway.

Joined a gang

Over the 18 months Flynn was represented by Sidney Powell, conspiracy theorists fed his ego and he fed their conspiracies. QAnon increasingly fed support for Flynn and at one point Powell even lifted claims directly from QAnon Twitter to submit in a filing.

On the Fourth of July of this year, Flynn formally pledged allegiance to QAnon.

In May — that is, before Flynn formally pledged allegiance to QAnon — the FBI released a bulletin warning that QAnon, along other conspiracy peddlers, had become a domestic terrorist threat.

Got one of his gang members prosecuted for death threats against a judge

Before Flynn joined that gang, but significantly as a result of his fostering it, a member of QAnon took action on Flynn’s behalf, calling in death threats against Judge Sullivan and his staffers.

We are professionals. We are trained military people. We will be on rooftops. You will not be safe. A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a fuck who you are. Back out of this bullshit before it’s too late, or we’ll start cutting down your staff. This is not a threat. This is a promise

Frank Caporusso was charged in August. In October he was ordered held without bail. He appears set to plead guilty on January 19.

Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred

And with his two years of effort, Mike Flynn has gotten none of the exoneration he was seeking.

In a 92-page opinion last year, Judge Sullivan affirmed that Flynn’s lies were material and that, “Mr. Flynn has failed to establish a single Brady violation.”

A sentencing memo approved by all levels of Bill Barr’s DOJ also ruled that Flynn’s lies were material.

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

[snip]

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

In a filing in June, Jocelyn Ballantine laid out that Flynn had gotten the discovery required, and stated clearly that his claims of prosecutorial misconduct were unfounded.

Before Flynn’s 2017 guilty plea, the government provided Flynn with (1) the FBI report for Flynn’s January 24 interview; (2) notification that the DOJ Inspector General, in reviewing allegations regarding actions by the DOJ and FBI in advance of the 2016 election, had identified electronic communications between Strzok and Page that showed political bias that might constitute misconduct; (3) information that Flynn had a sure demeanor and did not give any indicators of deception during the January 24 interview; and (4) information that both of the interviewing agents had the impression at the time that Flynn was not lying or did not think he was lying.

The government subsequently provided over 25,000 pages of additional materials pursuant to this Court’s broad Standing Order, which it issues in every criminal case, requiring the government to produce “any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.” Doc. 20, at 2. The majority of those materials, over 21,000 pages of the government’s production, pertain to Flynn’s statements in his March 7, 2017 FARA filing, for which the government agreed not to prosecute him as part of the plea agreement. The remainder are disclosures related to Flynn’s January 24, 2017, statements to the FBI, and his many debriefings with the SCO.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. [my emphasis]

An interview report DOJ submitted actually hid material evidence that the pro-Trump agent who pushed back against the investigation of Flynn for his Russian ties worked well with Brandon Van Grack, but effectively, even Bill Barr’s star witness refuted Sidney Powell’s claims of misconduct.

Finally, in Judge Sullivan’s order dismissing Flynn’s prosecution as moot, he made a number of findings of fact, effectively finding that nothing DOJ has been throwing at the wall since May changes Mike Flynn’s guilt.

  1. The government’s assertion that there was confusion surrounding Mike Flynn’s interview does not change that his lies were material.
  2. DOJ’s [draft] conclusion that Flynn was not an agent of Russia does not change that his lies were material.
  3. The evidence impeaching Peter Strzok and others does not change that Flynn’s lies were material (and, as Sullivan notes, even the government agreed before Flynn pled guilty).
  4. Nothing in the public record substantiates that the 302 of January 24, 2017 Flynn’s interview does not accurately reflect what happened in the interview.
  5. Flynn’s claims to be forgetful are not consistent with the fact that, as the incoming National Security Advisor, he personally asked Sergey Kislyak to undermine President Obama’s policy before Trump took office.
  6. Nothing in Bill Priestap’s notes call into question the legitimacy of the Mike Flynn interview.
  7. The government could have relied on Mike Flynn’s admissions at trial.

Mike Flynn has spent two years trying to deny that he was guilty of lying to obstruct an investigation. The record remains that he did.

Exposed his son to further prosecution

As part of his claim to have been railroaded, Flynn accused Robert Mueller’s prosecutors of threatening his son. Documents that would have otherwise eventually been released (the warrants targeting Flynn) made it clear that his son was the first to claim legal exposure, threatening to plead the Fifth in July 2017 to avoid testifying about his work with his dad. Documents that Flynn submitted to the docket show that Mueller had an understanding, but pointedly avoided promising not to prosecute Jr.

Now that Flynn’s plea has been voided, Jr could hypothetically be added as a co-conspirator in any retrial of Bijan Kian, with Flynn Sr — who is immune from legal jeopardy — possibly forced to testify against his son.

I think Trump will do something to make sure this is unlikely. But the risk is out there that, after purportedly pleading guilty to save his son, Flynn will have made his son’s jeopardy worse.

Exposed DOJ to further scrutiny

DOJ’s excuses for trying to blow up Flynn’s prosecution were transparently bogus — and conflicted with each other. That, in and of itself, suggested DOJ was not entitled to the presumption of regularity.

But along the way, DOJ submitted a package of altered documents to the docket. That led Sullivan to require DOJ to certify everything they submitted — and then to insist after DOJ tried to dodge the order. DOJ stopped well short of certifying everything, and lied in the filing doing so. All those issues remain unresolved in Sullivan’s docket.

Proved Judge Sullivan’s point about selling his country out

Two years ago today, at the aborted sentencing hearing, Judge Sullivan observed (misstating when Flynn’s secret relationship with Turkey ended) that Flynn had “arguably” sold out the flag.

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that.

In the three weeks since Flynn was pardoned, he has done just that, twice called on Trump to use the military to rerun a vote that might keep Trump in power.

Ron Johnson Grasping at Chum

Russian disinformation purveyor Ron Johnson and Chuck Grassley continue to serially demand and release documents from FBI in hopes of sustaining a buzz suggesting that Hillary was treated better than Donald Trump.

The latest batch is a hodgepodge. It purports to be,

messages from former FBI agent Peter Strzok related to Crossfire Hurricane, the FBI’s investigation of Trump campaign and administration officials, and the FBI’s “Midyear Exam” investigation of former Secretary of State Hillary Clinton’s use of a private email server.

But it is actually a hodgepodge, including texts pertaining to Guccifer 1.0, the ongoing hacks of the DNC, and other investigations pertaining to Russia, including the beginnings of a focus on Russia’s 2016 social media campaign. Some of the texts, such as one from October 21, 2016 about leaked Podesta emails involving Obama, don’t obviously involve Strzok at all.

There is no possible set of search terms that would return these texts. But they’re useful to compare with another more motivated set of texts released by the Jeffrey Jensen investigation that overlap with this one. Here’s a set of texts packaged up to justify blowing up the Flynn prosecution.

As a later filing to Judge Sullivan admitted, they were actually repackaged from the FBI original, and in the process an error was introduced into the document (adding the wrong time for the “Will do” text).

The set released to Johnson includes just a few of those texts, completely out of context.

But those texts reveal one reason why the Jensen texts were packaged up: to alter the UTC times to Eastern time, the kind of thing that, for trial exhibits, needs to be formally noticed. It’s the kind of thing Sullivan wouldn’t need to assess the evidence, but that would make the connections Jensen was trying to feed the public (some false) easier to put together.

Neither the Senators, their staff, nor the frothy right seem to have cared that these texts reflect a random grab bag to keep them occupied. Chuck Ross got himself in a tizzy, for example, because Strzok read the Michael Isikoff article reflecting information from Steele and determined that the Steele reports were “intended to influence as well as inform.”

In his rendition of the text, Ross claims that this means Strzok knew “Steele was a source” for the story. Of course, it means no such thing (and Ross had to mis-cite it to make the claim). It actually reflects that Strzok knew Steele’s reports were a source for the story, which was noticed to the FISA Court from the very first application, and so nothing we didn’t already know.

Then there’s the Federalist, which claims that this text proves the FBI was wiretapping calls between Fox News and George Papadopoulos.

The text is a copy of a text sent by someone else (that is, forwarded to the person who forwarded this to Strzok). It appears to come from Chicago (CG). Chicago was running an informant on Papadopoulos, who spoke quite a lot to him while being monitored. The most likely explanation for this is that after news about Sergei Millian was breaking (whose name is redacted in all these texts), Papadopoulos told the informant that Fox had reached out to him. In the same way Papadopoulos bragged falsely about meeting Russia’s ambassador and Putin’s niece, he may well have exaggerated the seniority of the person he spoke with.

Meanwhile, some of the texts provide needed content.

One text explains part of why Joe Pientka wrote up the briefing he gave Mike Flynn, Chris Christie, and Trump in August 2016: to capture what was said in case anyone leaked it.

He was wise to do so! Both Flynn and Trump would go on to make claims about what went on in the briefing, with Flynn falsely claiming that briefers said they disagreed with President Obama’s policies, claims that do not accord with the record — thus far — we’ve gotten of it.

And in January, amid a recurring discussion about how to organize the investigations — and exhibiting a concern that the multiple (Egypt, Flynn on Turkey, Papadopoulos and Israel) different CI concerns would turn into a Trump focused investigation rather than one focused on multiple legitimate concerns run by people with specific expertise to them — Strzok raised the risk of Flynn leaking. Flynn had a history of sharing classified information inappropriately. In one of the calls with Kislyak, Flynn offered up what kind of calls the Transition had been making (which might have been classified if it happened after inauguration).

Flynn: Yeah, there … there, I can tell you that there’s, uh, you know, a litany of countries that are … that we’re talking … I’m … I’m talking directly to. And … and that …

Kislyak: I see.

Flynn: Basically, just as I asked you.

With this disclosure, Flynn basically admitted to the Russians that Trump’s people were conducting a systematic effort to undermine Obama’s policy. And Kislyak just took at all in, letting Flynn run his mouth.

“I see.”

So at a time he would have been reviewing these transcripts and seeing how little filter Flynn had with a hostile country, Stzrok noted that the conversations with Kislyak or others could easily turn into an Espionage investigation, file code 65, if Flynn shared classified information.

There’s more, reflecting a real concern about the leaks that also (rightly) pissed off Trump, along with real efforts to chase them down.

But for now, DOJ and FBI appear to be throwing random shit Ron Johnson’s way to get through the end of the term, when he’ll no longer Chair HGSAC.

In His Mike Flynn Opinion, Emmet Sullivan Made a Finding of Fact Against Billy Barr’s New Reality

I’ve been unpacking the Judge Emmet Sullivan opinion dismissing Mike Flynn’s guilty verdicts.

This post lays out how Sullivan asserts authority to refuse the government’s motion to dismiss Flynn’s prosecution, but does not do so, because the question is moot.

This post shows that Sullivan laid out evidence that DOJ’s motion to dismiss was pretextual. He declined to rule that the motion itself was pretextual, because the question is moot. But he made it clear he thinks DOJ’s excuses for blowing up the Flynn prosecution are bullshit.

And this post notes that, before Sullivan started mooting the shit out of DOJ’s interest in his docket, he struck some documents that Sidney Powell had submitted to his docket because the government had not authenticated them, without at the same time striking another document that the government didn’t rely on but had not authenticated. It’s a tactical step, I think, that leaves everything else in his docket as authenticated, even though DOJ stopped short of standing by all those exhibits.

Before I get into what Sullivan says about Trump’s pardon power — which, make no mistake, Sullivan affirms as expansive — I’d like to lay out some findings of fact that Sullivan includes in this opinion. He includes a number of other findings of fact that are tangential to the question of a pardon but which Bill Barr and Donald Trump have staked a lot on. He does so, he explains, because the government has invited him to.

The Court is mindful that it is “particularly ill-suited” to reviewing the strength of the case. Wayte v. United States, 470 U.S. 598, 607 (1985); see also In re United States, 345 F.3d 454, 455 (7th Cir. 2003) (finding that the trial court’s belief that “the evidence was strong and conviction extremely likely” was an inappropriate basis to deny leave). That said, the role of the Court is to conduct an “examination of the record” in order to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.” Rinaldi, 434 U.S. at 30. Moreover, the Court examines the factual basis underlying the government’s reasons because not doing so would amount to rubber stamping the government’s decision, contrary to the requirement of Rule 48(a). Here, the government has invited the Court’s examination of its evidence. See Hr’g Tr., ECF No. 266 at 42:22-43:1 (stating that “we’re completely unafraid here to address . . . the specifics as to why we thought we needed to dismiss this case. . . . we’d be happy to go through the evidence.”). Accordingly, the Court will briefly address some of the evidence the government points to as it is troubled by the apparently pretextual nature of certain aspects of the government’s ever-evolving justifications. See Foster v. Chatman, 136 S. Ct. 1737, 1751 (2016) (“[T]he prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual.”).

The findings of fact Sullivan addresses primarily come in this paragraph on materiality… [my numbering throughout]

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” [1] 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 [2] 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, [3] 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.

And this passage assessing the evidence that Flynn’s lies were lies.

[4] 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. Furthermore, the government’s reliance on Director Comey’s opinion about whether Mr. Flynn lied is suspect given that Director Comey was not present at the interview and that there are valid questions regarding the admissibility of his personal opinion.

With regard to Mr. Flynn’s alleged “faulty memory,” Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, [5] who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office. With regard to the government’s concerns about the Assistant Director for Counter Intelligence’s contemplating the goal of the interview, [6] an objective interpretation of the notes in their entirety does not call into question the legitimacy of the interview. Finally, and critically, under the terms of Mr. Flynn’s cooperation agreement, [7] the government could have used his admissions at trial, see Plea Agreement, ECF No. 3 at 8 ¶ 11; but the government ignores this powerful evidence.

In these passages, District Court Judge Emmet Sullivan finds as fact that:

  1. The government’s assertion that there was confusion surrounding Mike Flynn’s interview does not change that his lies were material.
  2. DOJ’s [draft] conclusion that Flynn was not an agent of Russia does not change that his lies were material.
  3. The evidence impeaching Peter Strzok and others does not change that Flynn’s lies were material (and, as Sullivan notes, even the government agreed before Flynn pled guilty).
  4. Nothing in the public record substantiates that the 302 of Janaury 24, 2017 Flynn’s interview does not accurately reflect what happened in the interview.
  5. Flynn’s claims to be forgetful are not consistent with the fact that, as the incoming National Security Advisor, he personally asked Sergey Kislyak to undermine President Obama’s policy before Trump took office.
  6. Nothing in Bill Priestap’s notes call into question the legitimacy of the Mike Flynn interview.
  7. The government could have relied on Mike Flynn’s admissions at trial.

One way to think about this language is that Billy Barr attempted to create a new set of facts by submitting documents from the Jeffrey Jensen investigation to Sullivan’s docket and making false claims about them, thereby attempting to annul the set of facts that led DOJ (even DOJ under Bill Barr, repeatedly) to argue that Mike Flynn’s lies were serious. Judge Sullivan is having none of Billy Barr’s new reality, in significant part because DOJ has not explained what changed from its prior assertions of fact and partly because none of the claims it has made about the so-called new evidence refutes DOJ’s prior representations.

These findings of fact may have a more specific effect, though. Billy Barr has served up his different set of facts and based off those, John Durham is attempting to criminalize the decisions of the people that prosecuted Mike Flynn for telling the FBI material lies. DOJ generally has no basis to appeal Sullivan’s findings, because its position in the docket is (as Sullivan notes repeatedly) moot. But Durham has even less ability to contest Sullivan’s findings of fact; he has no standing.

So unless DOJ finds a way around the fact that they themselves have mooted any further involvement before Judge Sullivan, then, any further investigation into the circumstances of Flynn’s prosecution will have to contend with the fact that a judge has already found a number of key premises entertained by those pushing the investigation into the investigation to be false.

At least as of right now, 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.

Before He Mooted DOJ’s Motions in the Mike Flynn Case, Emmet Sullivan Treated DOJ’s Authentication as Official

I’m writing a bunch of posts on Judge Emmet Sullivan’s order dismissing Mike Flynn’s prosecution as moot.

This post laid out how Sullivan established that he has the authority to rule against DOJ’s motion to dismiss the Flynn case, but declined to do so because the question is moot

This post laid out the evidence Sullivan laid out that DOJ’s motion to dismiss was pretextual. He declined to rule that the motion itself was pretextual, because the question is moot. But he made it clear he thinks DOJ’s excuses for blowing up the Flynn prosecution are bullshit.

As I noted, because the order itself moots all pending DOJ issues in the docket, the government would have a hard time appealing either of those issues, especially given that Sullivan didn’t ultimately rule on them. DOJ has no business making requests in this docket because the matter on which they have primacy, prosecutions, has been mooted by Trump’s pardon. Sullivan has reclaimed authority over his docket.

In this post, I’d like to look at something tactical Judge Sullivan did just before he started mooting DOJ’s role, which looks like this in the docket.

Before he ruled on the pardon, Judge Sullivan first struck four exhibits from the docket:

  • 228-2: Some texts involving Peter Strzok
  • 228-4: Sidney Powell’s submission of a motion from Amaro Goncalves
  • 228-5: Sidney Powell’s submission of a motion involving Ted Stevens
  • 248-1: Some texts from FBI intelligence analysts

With the exception of the last of these, these aren’t that important — as I noted in this post, Sidney Powell’s submission of prior filings from other lawyers is the rare moment when she can be relied on to be more accurate than the government (or any bum off the street). But by striking those other four exhibits, this order makes clear that Judge Sullivan considers the claims in this DOJ filing to be operative.

Interestingly, Sullivan did not strike a different exhibit — basically some Strzok and Page texts DOJ repackaged to be assholes — which are referred to in the paragraph before the one excepting out those four (which I’ve italicized), which DOJ treats as the same, stuff they’re not relying on, but which they do not decline to authenticate.

On September 2018, the DC-USAO received from the Department of Justice Office of the Inspector General a complete set of the text messages between OGC Attorney Lisa Page and DAD Peter Strzok. As the Court is well-aware, the government first disclosed the existence of these text messages to Mr. Flynn on November 30, 2017. Thereafter, the government provided excerpts of these text messages and links to publicly available compilations of these communications to Mr. Flynn on March 13, 2018, June 24, 2018, October 28, 2019, and April 29, 2020. On September 23, 2020, the government provided Mr. Flynn with additional text messages from the set it had received from the OIG in September 2018. The government is not relying on these additional text messages in support of its motion to dismiss.

The government also notes that there are Discovery Documents attached to Mr. Flynn’s filings that it has not authenticated for the purpose of this filing because those documents were not relied upon by the government in its motion to dismiss or arguments in support thereof. See ECF Nos. 228-2, 228-4, 228-5, and 248-1.

Effectively then, Sullivan has struck stuff submitted by Flynn’s lawyers that DOJ was not relying on, but not stuff DOJ submitted that it said it was not relying upon.

Sullivan left on the docket a bunch of filings that DOJ fell far short of validating in its filing, as laid out here, including the filings that DOJ altered. But he also made it clear that that filing authenticating exhibits in his docket does remain operative.

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.

[snip]

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.

Judge Sullivan Uses Mike Flynn Dismissal to Emphasize His Own Authority

Judge Emmet Sullivan just dismissed, as moot, the prosecution of Mike Flynn (he did not dismiss the case with prejudice, as DOJ had asked, but that likely does not matter). He did three things, which I’ll take in turn in a series of posts.

First, he asserted the ability to deny DOJ’s motion to dismiss — while stopping short of doing so — in a way that DOJ might otherwise appeal if this were not mooted.

As a reminder, when Bill Barr interfered in this prosecution in May, he ceded that Judge Sullivan had some say over the dismissal. But along the way DOJ repeatedly argued that Sullivan couldn’t actually examine the circumstances of the dismissal. In this opinion, Sullivan asserted the ability to weigh just that. He made it clear that the Supreme Court intended courts to have a say.

Despite the Supreme Court’s concerns, the Advisory Committee’s final draft of Rule 48(a) again required only that prosecutors submit a statement of reasons for dismissal. See Frampton, Why Do Rule 48(a) Dismissals Require “Leave of Court”?, supra, at 36-37. However, in promulgating the rule, the Supreme Court deleted this requirement and added the requirement that the prosecutor obtain leave of court. Id. at 37; see also Ammidown, 497 F.2d at 620. In so doing, the Court made it “manifestly clear that [it] intended to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice.” Cowan, 524 F.2d at 512.

He then invokes Ammidown for the principle that the court can weigh whether these actions are in the public interest.

This Circuit’s precedent is consistent with this history. For example, in Ammidown, the D.C. Circuit acknowledged that Rule 48(a) “gives the court a role” when “the defendant concurs in the dismissal but the court is concerned whether the action sufficiently protects the public.” 497 F.2d at 620. The D.C. Circuit explained that courts carry out this role in such a situation “to prevent abuse of the uncontrolled power of dismissal previously enjoyed by prosecutors.” Id. (citation omitted).

He then addresses DOJ’s argument that Fokker only gives District courts the ability to protect a defendant, not to protect public interest, arguing that it is not on point here, because this involved a guilty plea.

Despite this language in Ammidown, however, the government relies on United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016), to argue that judicial intervention is warranted only when the defendant objects to dismissal because “the ‘principal object of the leave of court requirement’ has been understood to be a narrow one—‘to protect a defendant against prosecutorial harassment.’” Gov’t’s Reply, ECF No. 227 at 20-21 (quoting Fokker, 818 F.3d at 742).

But Fokker does not address the Court’s authority to consider an unopposed Rule 48(a) motion; it involved a deferred prosecution agreement rather than a guilty plea. Fokker, 818 F.3d at 737. Fokker also does not suggest that courts may only review opposed Rule 48(a) motions for prosecutorial harassment— the case simply quotes language from Rinaldi, stating that preventing harassment is the principal object of the rule. Id. at 742 (quoting Rinaldi, 434 U.S. at 29 n.15).

Importantly, Sullivan addressed a claim DOJ made that is not based on precedent — that the District does not have to operate as a rubber stamp, but his only role is to determine whether the entire Executive Branch supported an outcome. Sullivan made the case that a District court can still make a decision about the public interest, not just what the Executive wanted.

At the September 29, 2020 motion hearing, the government emphasized a different aspect of its argument. It conceded that the Court should not act as a rubber stamp and that it has a role to play when presented with an unopposed Rule 48(a) motion. Hr’g Tr., ECF No. 266 at 40:9-12. But, in the government’s view, this role is limited to determining whether “the decision to dismiss is the considered view, the authoritative view of the Executive Branch as a whole,” id.; rather than being the “rogue” decision of an individual prosecutor, id. at 99:16-23.7 The government argued that this standard appropriately reconciles the concerns about favoritism and pretext that led to the “leave of court” language in the Rule with the separation of powers principal that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693 (1974) (citation omitted); see also Fokker, 818 F.3d at 742 (“[D]ecisions to dismiss pending charges . . . lie squarely within the ken of prosecutorial discretion.”). The Court is not persuaded by the government’s argument, however, because it fails to acknowledge the possibility that the “considered view of the Executive Branch as a whole” could be contrary to the public interest.

In so doing, Sullivan makes the case that Districts can also review a case for prosecutorial abuse.

The court’s role is not “to serve merely as a rubber stamp for the prosecutor’s decision,” even when “the defendant concurs in the dismissal.” Ammidown, 497 F.2d at 620, 622. Rather, it is the court’s “duty to exercise a discretion for the protection of the public interest.” Cowan, 524 F.2d at 511. The trial court therefore conducts an “examination of the record” to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.” Rinaldi, 434 U.S. at 30.

Later in the opinion, Sullivan noted that because the government had chosen to give more than conclusory statements about why they wanted to dismiss the prosecution, he could weight those more substantive reasons.

The majority of the cases finding denial of leave appropriate based on “conclusory statements” most often involve motions providing only one or two sentences referring generally to the “public interest.” See, e.g., Derr, 726 F.2d at 619 (affirming denial of leave to dismiss when the government offered no reasons for dismissal other than that it would “best meet the ends of justice”). Here, on the other hand, the government has sought to justify its decision to seek dismissal by providing several reasons and facts underlying its decision. See id.

However, 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.

Then, buried on page 25, Sullivan argues that District courts can rule against DOJ in these narrow circumstances to protect the public interest and reiterates the authority of courts to rule against the government in case of corruption.

With the above principles in mind, in response to the government’s motion to dismiss under Rule 48(a), the Court holds that a judge may deny an unopposed Rule 48(a) motion if, after an examination of the record, (1) she is not “satisfied that the reasons advanced for the proposed dismissal are substantial”; or (2) she finds that the prosecutor has otherwise “abused his discretion.” Ammidown, 497 F.2d at 620-22.

[snip]

In addition, as indicated by the history of Rule 48(a), the corrupt dismissal of politically well-connected individuals would also constitute an abuse of discretion. See Woody, 2 F.2d at 262.

So at a key level, the opinion lays out the principle that DOJ fought hard to deny — that judges have their own authority and they serve the public.

Since this case has been mooted, DOJ will have a very difficult time challenging this language (other DC District judges could rely on it going forward, but it is not a precedent). Sullivan, knowing that DOJ also had no more authority to challenge his order, asserted his authority.

This language, while not circuit precedent, may be cited going forward.

Failsons and Kraken Conspiracies: Three Mike Flynn Hypotheticals Trump May Have Tried to Preemptively Pardon

In a hearing in the BuzzFeed FOIA case today, Judge Reggie Walton (who always likes to chat about his conversations with his colleagues in the Prettyman judge’s dining room), said the Flynn pardon might be too broad.

U.S. District Judge Reggie Walton said at a hearing Friday that he doesn’t think U.S. District Judge Emmet Sullivan, his colleague presiding over the Flynn case, “has a lot of options in reference to what he does” after the pardon was granted, “unless he takes the position that the wording of the pardon is too broad, in that it provides protections beyond the date of the pardon.”

“I don’t know what impact that would have, what decision he would make, if he makes that determination that the pardon of Mr. Flynn is for a period that the law does not permit. I don’t know if that’s correct or not,” the judge continued. “Theoretically, the decision could be reached because the wording in the pardon seems to be very, very broad. It could be construed, I think, as extending protections against criminal prosecutions after the date the pardon was issued.”

“I don’t know if Judge Sullivan will make that determination or not,” Walton added.

Walton seemed to be suggesting that Sullivan might have a way to hold Flynn accountable in the future, unless the pardon as written is too broad.

That has set off a debate among Legal Twitter arguing what the pardon should mean, not what it does say.

To be sure, the first part of the Flynn pardon is undeniably valid. It pardons Flynn [I’ve added the numbers; which are different from the less helpful ones DOJ uses in their motion],

(1) for the charge of making false statements to Federal investigators, in violation of Section 1001, Title 18, United States Code, as charged in the information filed under docket number 1:17-CR-00232-EGS in the United States District Court for the District of Columbia; (2) for any and all possible offenses set forth in the Information and Statement of Offense filed under that docket number (3) or that might arise, or be charged, claimed, or asserted, in connection with the proceedings under that docket number

This is already too broad, for one reason I’ll get into. But on its face, that language pardons:

  1. The false statements as laid out in the criminal information
  2. The crime of being an undisclosed foreign agent for Turkey, lying to DOJ about it, and conspiring to lie about it
  3. The lies Flynn told Judge Emmet Sullivan in a bid to get out of his prior guilty allocutions

Those are, incidentally, the crimes laid out in the government’s motion to dismiss the case as moot.

The pardon not only encompasses the Section 1001 charge that is the subject of the government’s pending motion to dismiss (Doc. 198), but also any possible future perjury or contempt charge in connection with General Flynn’s sworn statements and any other possible future charge that this Court or the court-appointed amicus has suggested might somehow keep this criminal case alive over the government’s objection (e.g., a charge under the Foreign Agents Registration Act, Section 618(a), Title 22, United States Code, arising out of the facts set forth in the Statement of Offense).

There is nothing controversial about this part of the pardon (aside from the rank corruption of it). It is clear that the pardon is intended to and does cover those crimes that Flynn committed.

But the pardon goes beyond pardoning Flynn for those crimes. It also pardons Flynn for,

any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel appointed on May 17, 2017, including the initial Appointment Order No. 3915-2017 and subsequent memoranda regarding the Special Counsel’s investigatory authority; and any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.

As I noted, it purports to pardon Flynn for any crime that arises out of “facts … known to … the investigation of the Special Counsel,” any crime related to it, or anything arising from the grand juries (not time denominated or named) that investigated Flynn.

I think that is an attempt to stave off any crimes based off information collected as part of this investigation, even if the crime happens in the future. Here are three not-at-all unlikely scenarios:

Flynn reneges on his sworn testimony in a retrial against Bijan Kian in which Mike Flynn Jr also gets charged

Flynn’s partner, Bijan Kian, was found guilty of conspiring to lie about working for Turkey with Flynn in 2016. But then the judge in the case, Anthony Trenga, overturned that verdict. The government is appealing his order. One possible outcome of that appeal is that the government will retry Kian. With Flynn’s plea deal off the table, the government would be free to include Flynn Jr in any potential retrial.

Flynn testified to an EDVA grand jury, under oath, that he knew that he (and so by association, his son and Kian) were secretly working for the government of Turkey in 2016. Prosecutors made a last-ditch attempt to make Flynn a co-conspirator in Kian’s last trial. In a superseding indictment they could make him an unindicted co-conspirator (which would make his communications admissible without his testimony). But it would be very useful to have his testimony as well.

Normally, prosecutors could force a witness to hew to his grand jury testimony on penalty of perjury. In this case, however, Trump has purported to pardon Flynn for anything pertaining to that grand jury. If Flynn lied at trial, could he be charged?

The government discovers further evidence of Flynn’s work as a foreign agent by tying Mueller evidence to evidence withheld

In both the case of Trump outreach to Russia and the case of Flynn’s work with Ekim Alptekin, there’s reason to believe that Flynn and — in the former case — the Trump campaign succeeded in withholding information for the entirety of the Mueller investigation but which DOJ discovered afterwards (I won’t get into the details of what that is here — again, I’ll say more in January).

Flynn’s lies about this information to Mueller or EDVA prosecutors clearly are covered by the pardon.

But if the information reflected an ongoing relationship — existing even now! — with either Russia or Turkey, it would impose registration requirements on Flynn. The government might argue, however, that because these relationships began prior to the period of the Mueller investigation and might never have been discovered if not for the warrants and subpoenas used in the Mueller or EDVA investigations, they are therefore related and Flynn’s prospective failure to register is covered by his pardon. I’m suggesting that the government seems to want to set up a claim that anything that stems from the Mueller investigation would be fruit of a poisonous tree and immune from prosecution.

An ongoing Kraken conspiracy to pay off the pardon

Sometime in the summer, Sidney Powell told Trump not to pardon Flynn, something she entered into the docket before Sullivan by admitting it in the September hearing. She also admitted to Sullivan she had talked repeatedly to Trump’s campaign “lawyer” Jenna Ellis about Flynn’s case. In the following weeks after she spoke with Trump and Ellis, prosecutors fed her information from Jeffrey Jensen’s investigation — some of it altered — that ultimately served as part of a Trump attack on Joe Biden.

Then, after the election, Powell — at first claiming to be representing Trump — took a lead role in undermining the legal outcome of the election in multiple states. Almost immediately, purportedly because Trump believed that Sidney Powell made him look bad in a way that Rudy and Jenna Ellis and Joe DiGenova did not, Trump made clear to distance himself from Powell. The next day he pardoned Flynn. Days later, Flynn called for a coup to overturn the election.

Powell’s use of evidence in Flynn’s case to support false campaign attacks on Joe Biden is already irretrievably tied to Sullivan’s docket. Indeed, he now has real reason to question why Powell was talking with Ellis about this case, why (before the document alteration was discovered) she affirmatively asked Trump to hold off on the pardon only to embrace it later, and what tie there is between the altered documents and the attack Trump launched in the first debate against Biden. Judge Sullivan has reason to ask whether the fraud on the court in this docket is tied to some benefit for Trump, and whether that benefit in some way is tied to the pardon.

But if there is a tie, Sullivan (and Joe Biden’s DOJ) may have reason to ask whether this is a continuing conspiracy, whether Powell and Flynn’s actions after the pardon are part of delivering on a corrupt agreement made before the pardon. It is easy to see how the fraud on the court that remains before Sullivan could be tied to ongoing actions.

DOJ would seem to suggest that those actions, too, are covered by Trump’s pardon.

Again, all three of these scenarios are easily foreseeable. They are the actual fact patterns before Judge Sullivan and a potential Biden Administration.