Michael Flynn's scrapped plea deal and escape from justice is even worse than it seems

The end of the Flynn case may also be the beginning of the end of other cases, too.
Michael Flynn Is Charged As Mueller Intensifies Russia Probe
Michael Flynn, former U.S. national security advisor, left, arrives at the U.S. Courthouse in Washington, D.C., on Dec. 1, 2017.Andrew Harrer / Bloomberg via Getty Images file
Get the Think newsletter.
SUBSCRIBE
By Nick Oberheiden, federal white-collar defense attorney

The investigation of former national security adviser and Donald Trump associate Michael Flynn may be all but officially over, but the avalanche of problems triggered by dismissing his case is just gathering speed.

Despite the fact that Flynn had pleaded guilty to lying to the FBI about his contacts with Russian officials, his conviction is now set to be vacated per an order from a federal appellate court on Wednesday. The order follows a request from the Department of Justice, made once William Barr became attorney general, to reverse course and dismiss the case it had made against Flynn under the aegis of then-special counsel Robert Mueller.

Defense attorneys for the likes of Paul Manafort and Michael Cohen could use what has transpired in the Flynn investigation to make the case that their clients’ cases need to be reconsidered.

U.S. District Judge Emmet Sullivan was considering the DOJ’s highly unusual request to drop the case after Flynn admitted criminal misconduct but the D.C. Circuit Court of Appeals then stepped in at the request of Flynn’s lawyers. On Wednesday, the appeals court ordered Sullivan to honor the Justice Department’s request and dismiss the indictment against Flynn. Unless the Appeals Court decides to convene “en banc” with all other judges of that appeals court to review the decision of the three-judge appeal panel, chances are high that the order to dismiss will indeed mean that Flynn will avoid punishment.

Critics of the Justice Department’s decision to essentially undo its case against Flynn have focused primarily on the DOJ’s rationale for such an unusual move, questioning whether it was politically motivated and raising concerns that it threatens the independence of prosecutors. But overlooked thus far is the more tangible consequence that the official end of the Flynn case may also be the beginning of the end of other cases, too.

Letting Flynn out of his plea deal could create a mound of secondary legal consequences that may jeopardize other cases and investigations into Russian interference in the 2016 elections that are deeply intertwined with the evidence Mueller’s team received from Flynn’s cooperation. Defense attorneys for the likes of Paul Manafort and Michael Cohen could use what has transpired in the Flynn investigation to make the case that their clients’ cases need to be reconsidered as well.

In federal criminal cases, individuals meet with law enforcement to provide implicating information on others either to avoid criminal prosecution themselves or, as in the Flynn case, to earn a more lenient sentence for truthful and credible cooperation with the government. It is public information that Flynn met with the FBI 19 times for these interviews. By any standards, even for complex federal investigations, 19 times is an extremely high number. The information Flynn provided must have been abounding.

The question in the aftermath of the Flynn dismissal becomes: Was any of the evidence used against other defendants as part of the Mueller probe at least partially based on information Flynn disclosed in his extensive series of interviews with the FBI? If so, how does the government misconduct in the Flynn investigation — as acknowledged by the DOJ in Barr’s decision to drop the case against him — affect these other cases? Is there a domino effect by which other cases may be tainted as a result of what took place in the Flynn case?

To be valid for building criminal cases, every piece of information Flynn shared with the government was conditioned on him being treated with procedural fairness and pursuant to the rule of law. But in its filing, the Justice Department said the questioning of Flynn had no “legitimate investigative basis,” and Barr has been clear in his criticism of how the FBI handled the Flynn probe and its problematic nature, telling CBS that the FBI “kept it open for the express purpose of trying to catch, lay a perjury trap for General Flynn.”

Think of the famous fruit of the poisonous tree. If the Mueller investigation is the tree and the Flynns and Manaforts are the branches, there is at least room for legal argument to say that if Flynn’s case is tainted and he provided information on others that helped the cases against them, these other investigations may trace back to or themselves suffer from the same defect. That would convert any evidence Flynn supplied from incriminating to useless or even exculpatory.

What Flynn said in those 19 interviews has not been made public, but those implicated in the probe now have grounds for seeking further details about those conversations if there was any connection between what was said and their own investigations.

The idea that these other investigations rest at least somewhat on Flynn doesn’t seem that far-fetched. Before it abruptly changed its position on Flynn’s criminality, the Justice Department in its initial sentencing memorandum praised Flynn for his detailed assistance to Mueller and public court records speak of extensive cooperation. Over the course of 19 — 19! — interviews, just what incriminating information did Flynn provide the FBI as he tried to lower the charges against him by providing dirt on others?

Stay tuned for the Flynn domino effect. Whether or not Wednesday’s order was the final word on Flynn or not, the fallout from the case is sure to continue.

RELATED: