Acting United States Attorney for the District of Columbia Timothy Shea filed a motion in court on Thursday seeking to dismiss the criminal case against Gen. Michael Flynn, President Donald Trump’s former national security adviser. In 2017, Flynn pleaded guilty to lying to the FBI about conversations he had with Russian Ambassador Sergey Kislyak about the state of Russian sanctions.
This attempted dismissal of Flynn’s case has nothing to do with the strength of the evidence against Flynn or a fair application of the rule of law. Rather, it represents political cronyism and as such is an affront to our system of justice and to the American people. With this move, the corruption of the Department of Justice under Attorney General William Barr is as transparent as it is complete.
Once a defendant pleads guilty in court, it is extremely rare for the prosecutors to dismiss that case. During a guilty plea hearing, a defendant is placed under oath and required to recite or agree to a set of facts that proves to the judge’s satisfaction that the defendant is pleading guilty because he or she is, in fact, guilty. Before a judge accepts a guilty plea, the judge must be convinced, not only that there is a factual basis for the plea, but that the defendant is pleading guilty knowingly, intelligently and voluntarily and that the defendant has no viable defense.
On Dec. 1, 2017, Flynn pleaded guilty in court because he did, in fact, lie to the FBI. He sailed through the rigorous plea colloquy with Judge Emmet Sullivan, affirming that he committed the crime, had no defense and was pleading guilty voluntarily.
Now Shea, a Barr acolyte, wants to throw all of that out. Some inside baseball: When such motions to dismiss are filed, the signature page generally contains the names of all prosecutors assigned to the case. The Flynn dismissal motion had only Shea’s name, suggesting that no prosecutor was willing to put their name on the motion. Turns out that one of the Flynn prosecutors, Brandon Van Grack, withdrew from the case Thursday morning before the dismissal motion was filed. This circumstance is reminiscent of what happened in the Roger Stone case, when all four prosecutors withdrew from the case after Barr intervened to ask for a more lenient sentencing recommendation. This is not the way the Department of Justice is supposed to work.
In Thursday's 20-page dismissal motion, Shea essentially makes three arguments: He claims that Flynn may not actually have lied; he suggests that any potential lie wasn’t really “material” (in other words, relevant) to any ongoing investigations; and he contends that the investigation open at the time of the FBI’s interview was almost over anyway.
The motion, in my opinion, borders on the frivolous, so little do the arguments make sense. But more importantly, its assertions are directly contradicted by the statement of facts Flynn swore under oath were true and accurate. The Statement of the Offense (a document drafted by the Flynn prosecution team and signed by Flynn attesting to its truth and accuracy) states, “defendant, Michael T. Flynn... National Security Advisor to President Trump, made materially false statements and omissions during an interview with the FBI on January 24, 2017, in Washington, D.C.” The statement continues: “Flynn’s false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation.” Importantly, Flynn signed that statement and said he understood and agreed with it.
If you don’t believe the prosecutors or the FBI or Flynn himself that he lied to the FBI, perhaps you’ll believe Trump. In a rare moment of seeming candor, Trump directly and unequivocally told the American people what Fynn did, tweeting on Dec. 2, 2017: “I had to fire General Flynn because he lied to the Vice President and the FBI.” Lest there be any lingering doubt, on Dec. 21, 2017, Vice President Mike Pence was asked by Margaret Brennan on “Face the Nation” why and for what reason Flynn was fired. Pence answered: “What I can tell you is I knew that he lied to me.”
Flynn’s defense has claimed the FBI tried to set up their client. These claims have gained traction following the disclosure of some communications by FBI agents and employees discussing how to approach the Flynn interview. Emails and handwritten notes revealed that agents strategized about whether to try to get Flynn to tell the truth or to lie about his conversations with the Russians. They discussed whether they should remind him that lying to the FBI was a crime and whether their goals should include trying to prosecute him or even get him fired from his White House position. Trump has also been pushing this “corrupt FBI” angle for a while now.
As a prosecutor, I had hundreds of such strategy sessions prior to any significant interview during an investigation. These tactical discussions are as routine as they are necessary. Prosecutors and investigators discuss investigative goals and tactical strategies to maximize reaching those goals.
In fairness, these strategy sessions generally do not include discussions about getting the interviewee “fired.” The employment consequences to a witness or target of an investigation are the kind of collateral matters that rarely factor into law enforcement thinking. However, rarely is the person being interviewed a national security adviser who spoke with the Russians about national security matters and then lied to the vice president of the United States about those conversations. Such actions compromised Flynn and made him susceptible to blackmail by the Russians. As such, this circumstance posed a direct threat to the national security of the country, making it perhaps more appropriate for the FBI to discuss Flynn’s continuing fitness for office.
All of this is to say, the FBI may not have done everything perfectly, but no investigation is ever perfectly executed. But there is absolutely no legitimate basis in law or in fact to dismiss Flynn’s guilty plea. The only basis is favoritism.
That said, the charges have not yet been dismissed officially. A prosecutor can file a motion to dismiss a case, but the judge presiding over the case has the authority to either grant or deny it. Rule 48a of the Federal Rules of Criminal Procedure instructs, “The government may, with leave of court, dismiss an indictment, information, or complaint.”
Having handled cases in front of Sullivan, I personally can attest to the fact that he is fiercely independent and aggressively intolerant of government corruption, misconduct or shenanigans. Sullivan has several options now. He can order a hearing on the matter to explore a variety of questions, including why prosecutor Brandon Van Grack withdrew from the case, why no prosecutor signed the motion to dismiss (apart from Shea) and how it's possible to reconcile the conflicting statements of the original prosecution team and Barr and Shea now. The ultimate question, of course, is whether it is in the interest of justice to grant the motion to dismiss. Sullivan could even order Barr to appear and explain his decisions and rationale.
But even if Sullivan decides to grant the motion to dismiss Flynn’s case, he will grant the motion “without prejudice.” This means the case against Flynn can be brought again in the future, if the next administration believes that justice demands the case be re-brought. Perhaps justice will eventually prevail, after all.