Flynndication? Not So Fast, Says Judge

Michael Flynn leaves a Washington court in 2018. (photo: Aaron P. Bernstein/Getty Images)

By Eric Lutz, Vanity Fair

13 May 20

Trump and his allies cheered the DOJ’s decision to drop its case against Michael Flynn, who pleaded guilty to lying to the FBI. But a federal judge will allow additional arguments from outside experts.

onald Trump was ecstatic last week when his Department of Justice suddenly dropped its case against Michael Flynn, his first national security adviser.

“Yesterday was a BIG day for Justice in the USA,” Trump tweeted. “Congratulations to General Flynn, and many others.” Who were those unnamed “others?” Perhaps William Barr, the attorney general who has served as the “Roy Cohn” that Jeff Sessions never did. Perhaps Trump himself, for whom the case against Flynn had become a major battle in his war against those who executed the Russia investigation that hung over his first two years in office. “I do believe there is MUCH more to come!” he added, perhaps signaling that he would be siccing the DOJ on members of the Obama administration involved in the high-profile case.

But even as Trump obsesses over “Obamagate”—that is, crimes supposedly committed by his predecessor that even he cannot actually define—and Mike Pence opens his arms to welcome Flynn back into the fold, the disgraced retired general is not quite in the clear yet.

Federal Judge Emmet G. Sullivan late Tuesday hit the pause button on the DOJ’s decision not to prosecute Flynn, issuing an order allowing outside groups and legal experts to argue against the stunning decision to let him skate. “Given the current posture of this case, the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs,” Sullivan wrote, echoing another judge in a high profile Trump associate case adding: “A criminal proceeding is not a free for all.”

The brief order signaled that Sullivan may be concerned about the unusual dismissal of a Trump friend, who had confessed to lying to investigators in 2017.

“The judge could be concerned this is cronyism,” Nancy Gerner, a former federal judge, told the New York Times. “I would predict that he holds a hearing and has the prosecutors justify the decision they made.”

Flynn served as an adviser to Trump’s 2016 campaign and his transition team, and for less than a month held the post of national security adviser; he was forced to resign from the role in February 2017, weeks into Trump’s presidency, amid scrutiny of his 2016 contacts with then-Russian ambassador Sergey Kislyak and reports that he lied about them to Pence. As federal law enforcement investigated the retired general, Trump lobbied then-FBI director James Comey to drop the case: “I hope you can see your way clear to letting this go,” the president told Comey, according to a memo he drafted after the meeting.

The episode became a flashpoint in the Russia investigation, and led in part to the firing of Comey and the appointment of special counsel Robert Mueller. Later that year, Flynn pleaded guilty to lying to the FBI about his contacts—widely seen as a good deal, considering he and his son could have faced charges of acting as unregistered foreign agents—saying he accepted “full responsibility” for his actions.

But after Barr cleared Trump of wrongdoing in the Mueller probe, despite the sweeping misconduct outlined in the special counsel’s report, Trump and his allies adopted Flynn as something of a symbol of so-called “deep state” overreach, a martyr of the supposed “witch hunt” against the president.

Late last month, Barr’s review of the Russia probe turned up what Flynn and Trump regarded as evidence of his vindication: email exchanges between federal agents and notes that questioned whether, in their 2017 interview with Flynn, they should seek “Truth/Admission” from the retired general or “get him to lie.” “What happened to General Michael Flynn, a war hero, should never be allowed to happen to a citizen of the United States again!” Trump wrote.

That seemed to suggest Trump would soon move to pardon Flynn, but it turned out he didn’t have to. Last week, Barr’s DOJ announced it would drop the case altogether, in what critics cast as the most glaring example yet of the politicization of the Justice department. “We are not supposed to get special treatment because we are friends with the President or refused to cooperate with federal investigators on his behalf,” said Representative Jerrold Nadler.

But as Cristian Farias pointed out last week, Sullivan has an opportunity to overrule Barr—and a history with Flynn that suggested he wouldn’t be so quick to accept the DOJ’s decision to dismiss. Presiding over the case, Sullivan has had harsh words for Flynn, both about the lies he told to federal investigators and administration officials and about his shady work for foreign governments.

“Arguably, you sold your country out,” he told Flynn in 2018. In his brief order Tuesday, Sullivan didn’t signal any particular feelings about the decision—but it does seem to reflect some suspicion about the highly unusual move by the Justice department. “It is no wonder that a judge would be skeptical, if not downright angry, and come to the conclusion that he had been misled, either at the outset, or now,” former federal prosecutor Matthew J. Jacobs told the Times.

Flynn’s legal team, however, immediately objected to the judge’s delay, accusing Sullivan of attempting to “usurp the role of the government’s counsel.” “This travesty of justice has already consumed three or more years of an innocent man’s life — and that of his entire family,” Flynn attorney Sidney Powell wrote Tuesday. “No further delay should be tolerated or any further expense caused to him and his defense.”