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.