U.S. District Judge Emmet G. Sullivan probably has little choice but to accede to the Justice Department’s outrageous motion that he dismiss the case against Lieutenant General Michael Flynn—notwithstanding Flynn’s guilty plea to false-statements charges more than two years ago. Existing law provides him little discretion in deciding whether to let the case go. That said, he does not have to dismiss the case without comment.
As with any motion before a federal district judge, this one provides an opportunity for the judge to question the government, which is now asking him to dismiss a case it has litigated since reaching a plea deal with Flynn in December 2017. He can explore the reasoning laid out in the department’s extraordinary brief. He can inquire into the rather obvious politics of the dismissal motion. And he can probe whether the Justice Department is really articulating a position it wishes to see courts apply in the future—or whether it is merely giving a windfall to a loyal ally of President Donald Trump.
Flynn’s guilty plea acknowledged that he had lied to FBI agents about his phone call with Russia’s U.S. Ambassador Sergey Kislyak concerning new American sanctions on Russia, along with other matters. The criminal charge against Flynn hinged on the fact of his falsehoods being “material” under the relevant statute—that is, “predictably capable of affecting ... [an] official decision.” Reversing its previous position that Flynn’s statements were material—a position with which both Flynn and Judge Sullivan concurred—the Justice Department now argues that Flynn’s lie could not have materially affected the FBI’s investigation, and therefore could not have been criminal, because in the department’s view, the investigation was not legitimate in the first place, the FBI having failed to produce the necessary predicate under its own rules to speak with Flynn.
Here are 13 questions we would ask of government counsel if we were Judge Sullivan:
- One striking feature of your brief is that it does not seem to allege that any of Flynn’s constitutional rights were violated or that you are conceding that any government action with respect to this investigation was illegal. Am I reading the government’s position correctly that you wish to dismiss this case without conceding that Flynn’s rights were actually infringed?
- Can you identify another case in which the government has argued for the dismissal of a guilty plea in the absence of either newly discovered evidence of actual innocence or the discovery of some sort of infringement of the defendant’s constitutional rights?
- As I understand your position, you are taking the view that Flynn’s case should be dismissed because the investigation lacked a proper predicate at the time the FBI interviewed him, and that his lies thus could not have been material. Are you aware of any other case in which the government has asked for dismissal of any charge on the ground that the investigation lacked a proper predicate? And are you aware of any other circumstances in which the government, in a false-statements case, sought dismissal because the supposed lack of a predicate for the investigation made the lies supposedly immaterial?
- The federal government commonly charges defendants with lying to investigators. Does the department intend to perform similar analyses of the predication and materiality of past false-statements cases and seek dismissals of other matters that may currently be pending presentencing that may run afoul of its new position?
- In arguing that the investigation was not properly predicated, the government points to documentation of internal FBI discussions concerning whether or not to close its probe into Flynn—discussions that took place before the bureau learned of Flynn’s call with the Russian ambassador. This knowledge, in turn, prompted the FBI to continue its work and ultimately seek an interview with Flynn. The phone call, the government states, was not an adequate predicate for continuing the probe. Is the government’s position that, as a general matter of law or policy, the question of predication must be evaluated anew at each step of an investigation merely because there has been discussion of closing a case? Can the government cite another case in which it has ever taken that view?
- The FBI decided to interview Flynn after discovering his phone call with Ambassador Kislyak and learning that Flynn had lied about the matter to Vice President Mike Pence and White House Press Secretary Sean Spicer, both of whom then unknowingly repeated the lie to the public. Justice Department officials have since testified under oath that they worried this placed Flynn at risk of blackmail by the Russian government—because the Kremlin would, of course, know that Flynn had indeed spoken with Kislyak. Does the government really take the view that it would not be a counterintelligence threat for the Russian Federation to know that the national security adviser had lied to the vice president about contacts with its government related to election interference and sanctions? And does it really take the view that it is actually lawful to lie to the FBI in such an investigation?
- Robert S. Litt, who served as general counsel to the Office of the Director of National Intelligence through the end of the Obama administration and was thus a sitting intelligence official during the relevant period, has posed the following hypothetical:
Someone who holds a grudge against you calls an FBI office and says that you are a Russian agent, providing fictitious details of invented meetings you have had with agents from Russia’s Federal Security Service. Before that call, the FBI had no information at all about you—let alone an open predicated investigation—but follows up with a public records search and an interview of you, and determines that there is no basis to the claim.
The logic of the department’s position in the Flynn case is that the person who maliciously reported you to the FBI could not be prosecuted for making a false statement, because at the time the statements were made, those statements “were not ‘material’ to any viable counterintelligence investigation … initiated by the FBI.” Or, to put it differently, the FBI can’t investigate whether someone is a Russian agent unless it already has evidence that the person is a Russian agent.
Is this a correct statement of the government’s position? And if not, why not?
- In your brief, you argue that even if the statements were material, the “government does not believe it could prove that Mr. Flynn knowingly and willfully made a false statement beyond a reasonable doubt.” Flynn, as you know, twice admitted in open court that he lied, and he signed a statement of the offense that admitted, “In truth and in fact … Flynn then and there knew” that his statements were untrue when he made them to the FBI. What’s more, the charging document to which he pled guilty specifies that his actions were knowing and willful. Your brief makes no mention of the fact that such admissions by Flynn are themselves compelling evidence of his guilt. Do you doubt that they are admissible evidence that could be used against him at trial? And why did the government not take account of them as evidence in determining it would be unable to prove its case?
- The motion to dismiss this case is signed not by any career official of the Justice Department, but only by Timothy Shea, the U.S. attorney for the District of Columbia, who is a political appointee. Why did no career Justice Department official, including the assistant U.S. attorneys who have been litigating the case since it was transferred back to the Justice Department from the Special Counsel’s Office, sign the motion?
- In particular, I noticed the motion by Brandon Van Grack to withdraw from this case. Van Grack, a career prosecutor, worked on Special Counsel Robert Mueller’s team and has been on this case since the plea agreement was first filed. Indeed, he was one of the signatories to the plea documents. Can you explain to me why Van Grack wishes to withdraw from the case after working on it for so long?
- While no career officials of the department appear to have participated in this decision, a number of political officials did. As I understand it, the attorney general himself asked the U.S. attorney in the Eastern District of Missouri, Jeffrey Jensen, to review the case. Jensen recommended dismissing it. And Attorney General William Barr accepted that recommendation, leaving Shea to file the brief currently before me. Barr, Shea, and Jensen are all political appointees. Am I to understand that all of the relevant players in this decision to dismiss a plea agreement whose lawfulness the government’s brief does not seem to challenge were political appointees?
- The plea agreement between the government and Flynn specifies that the government cannot further charge Flynn for any of the conduct outlined in the plea documents. This includes not merely Flynn’s false statements about his communications with Russian Ambassador Sergey Kislyak concerning sanctions, but also Flynn’s operating as an unregistered foreign agent for the benefit of Turkey and his false statements both about that and about his negotiations surrounding a U.N. Security Council resolution. The plea agreement, however, also contains a provision specifying that if Flynn “fails specifically to perform or to fulfill completely each and every one of [his] obligations under this Agreement,” the government’s obligations under the plea deal cease.
Before the government sought to dismiss this case, Flynn filed a motion before the court to withdraw his guilty plea. Is the government’s view that Flynn violated his agreement by seeking to withdraw his plea? In other words, if I grant the government’s motion, is it the government’s view that a future attorney general could refile the charges—other than the specific false-statements charge I am being asked to dismiss—against Flynn that the original plea agreement immunized him against? Or does the government take the view that the original immunity provision of the plea agreement is still in force?
- Finally, can you assure me that the many scores of times President Trump has expressed sympathy for Flynn and stated his belief that his former national security adviser was wronged by the FBI have nothing whatsoever to do with the decision by the Justice Department that the continuation of this prosecution would not, as the department asserts, “serve the interests of justice”?