Dropping the Flynn Charges Was Not Normal. We Need Investigations.

By Austin Evers and Melanie Sloan

What just happened in the Justice Department’s case against former National Security Adviser Michael Flynn is extremely unusual. Indeed, it literally may be unprecedented — former federal prosecutors cannot recall a single other time when the Department of Justice moved to dismiss a case after the defendant reached a negotiated plea agreement and pled guilty. 

The Justice Department’s decision to drop the case against Flynn is a stunning assault on the rule of law that raises extremely troubling questions about the politicization of decision-making at the agency — questions that need to be thoroughly investigated. The facts underscore why the case’s reversal was so extraordinary:

• Flynn voluntarily pled guilty not once but twice, both times testifying under oath that he had made material false statements to the Federal Bureau of Investigation, and agreeing that the government could use these admissions against him in future prosecutions if he attempted to renege on his plea.
• Flynn reached this agreement in part to avoid other potentially more serious criminal charges, and his plea deal was widely viewed both as very generous and as suggestive that the government expected to receive significant cooperation from Flynn in other matters.
• There was a highly public pressure campaign by President Donald Trump and his allies.
• Attorney General William Barr personally intervened and ordered an extraordinary review by an outside prosecutor into how the D.C. U.S. Attorney’s Office handled the matter, a special accommodation no ordinary federal defendant could expect to receive.
• Despite breathless reporting in the conservative press, newly released documents regarding Flynn’s initial interview with the FBI simply reflect ordinary law enforcement practices, not anything untoward, and there is no “new evidence” not already well-known to DOJ as it pursued the prosecution. 
• As with DOJ’s February reversal on the sentencing recommendation for Trump ally Roger Stone, the career prosecutor who led Flynn’s prosecution withdrew from the case, filing his notice of withdrawal shortly before the government filed its motion to toss out the charges. This time, however, the dismissal motion was signed only by interim U.S. Attorney Timothy Shea — apparently not a single career prosecutor in the office was willing to sign it.
• The motion advances a narrow, defense-friendly view of whether Flynn’s lies were “material” — that is, DOJ advances an argument it would never accept when raised by a defendant in an ordinary criminal case. 
• Shockingly, the motion even suggested DOJ had doubts it could prove that Flynn made false statements to the FBI at all, notwithstanding the fact that DOJ could use Flynn’s own testimony under oath that he had lied to the FBI.
• DOJ’s position also rests on the extraordinary proposition, as Lawfare wrote, that the FBI had “no reasonable basis even to interview a senior government official when that person has engaged over sanctions imposed against a foreign adversary government that interfered in an election — and who subsequently lied to the vice president of the United States about the substance of his conversation with an agent of that government.”

These extraordinary circumstances are sadly of a piece with other department conduct under Barr. Barr kicked off his tenure as attorney general by attempting to undermine the anticipated release of the report prepared by Special Counsel Robert Mueller, issuing an incomplete and inaccurate statement purportedly summarizing the report and exonerating the president, while he simultaneously withheld the actual report from Congress and the public. His purported summary was so deceptive that a federal judge appointed by President George W. Bush described it as a “distorted” and “misleading” account of the Mueller report’s findings, and said that Barr’s “lack of candor” called into question both his credibility and, in turn, DOJ’s assurances made to the court in connection with a related Freedom of Information Act lawsuit.

And early this year, DOJ replaced the confirmed U.S. attorney for the District of Columbia with Timothy Shea, a political appointee who had been working closely with Barr. Shortly thereafter, Shea’s office reversed the sentencing recommendation in the case of Stone, another close associate and political ally of Trump, a move that led all four career prosecutors on the case to withdraw and one of them to resign from DOJ altogether. The new recommendation was a stark departure both from the office’s prior position and from DOJ’s operative charging and sentencing policy, which disfavors sentence recommendations lower than the applicable federal sentencing guidelines range.

Given what we now know about the handling of the Flynn case, if Barr and DOJ want the public to accept the argument that their extraordinary actions here were in the interest of justice, they have a lot more explaining to do. DOJ’s actions here are emblematic of broader concerns about the department under Barr’s leadership, and this case is unfortunately an ideal vehicle for investigating the role political considerations have played in key decisions. While a review of the Flynn case could be focused and narrow, it also could illuminate systemic issues that have infested the department since Barr took charge.

To get to the bottom of what happened here, there needs to be a full push for oversight of DOJ’s actions across the board. Congress must call on Barr, Shea, and Jeffrey Jensen, the U.S. attorney who undertook the unusual external review of the case, to account for their actions. These officials have many questions to answer, including:

• The scope and nature of any communications with the White House regarding the Flynn case.
• Whether and how decision-makers in the case were screened from undue political pressure in light of the president’s public campaign against the prosecution.
• The reasons for the unusual decision to bring in an outside U.S. attorney to review the case and whether that is a standard that applies to all criminal defendants who raise questions about prosecutorial conduct — regardless of whether they are close associates of the president.
• The scope of that external review, including whether Jensen was charged with evaluating whether there was chargeable evidence relating to Flynn’s conduct for crimes other than that of making false statements to the FBI, such as whether his work on behalf of Turkish interests was properly disclosed on his security clearance application and whether he met his obligations under the Foreign Agents Registration Act.
• If the external review was limited to the false statements charge, the reason for that limitation given the other potential charges available.
• How the fact that Flynn committed to cooperate in the Mueller investigation and pled guilty in connection with a negotiated plea agreement in which the government agreed to forgo other more serious charges was weighed as part of the external review, and why that fact didn’t militate strongly in favor of continuing the charges.
• Identification of every other case in which DOJ sought to withdraw charges after reaching a negotiated plea agreement and the defendant pled guilty.
• Whether the narrow view of materiality adopted in the withdrawal motion applies to all defendants charged with making misrepresentations to the government, and examples of other cases where the government accepted the same position it adopts in the motion.
• Why the government concluded it could not prove beyond a reasonable doubt that Flynn made false statements when Flynn had waived any objections to the use of his testimony — in which he said under oath that he’d lied to the FBI — in connection with his pleas.
• Why career prosecutors on the case did not sign the motion, including if they expressly objected to signing it.

Judge Emmet G. Sullivan, the district court judge handling Flynn’s case, also has an important role to play here. Although DOJ has moved to withdraw the criminal charges in this case, the charges can be dismissed only with leave of court. Just as it was unusual for DOJ to seek to withdraw the charge at this late point, it also would be unusual for the judge to refuse to allow it to do so. 

Before ruling on the motion, however, Sullivan has the power to demand the government explain its change in position. Indeed, given the machinations of both the defense and the government that have led to this point in the case, it is necessary to the interests of justice that he do so. Luckily, Sullivan is no stranger to calling DOJ to account for the shifting decisions of its attorneys. Just over a decade ago, he extensively probed DOJ when he learned that department attorneys had improperly withheld information from Sen. Ted Stevens and his defense team. Today, we may be seeing the inverse: DOJ manufacturing Brady-like disclosure concerns — that is, feigning concern over internal FBI notes to suggest DOJ may have hidden material exculpatory information from Flynn — to escape a politically sensitive case. As Lawfare has explained, “‘At a minimum, Sullivan clearly has the authority to call the government lawyers before him to defend and account for their decision to dismiss Flynn’s charges.” Doing so here would surely serve the interests of justice.

Lawfare also notes that Sullivan has one final decision if he decides to allow DOJ to withdraw the charges: whether to accede to DOJ’s request to dismiss the charges with prejudice, rather than converting the motion to one without prejudice. This latter outcome would permit a future Justice Department to evaluate whether to refile the case — an approach Sullivan may choose to take if, given his familiarity with the facts of the case, he concludes it would best serve the interests of justice.

Finally, it is incumbent upon watchdogs and the press to apply all available tools to seek to inform the public about the extent to which political considerations have been improperly shaping DOJ conduct in individual cases. American Oversight has filed multiple FOIA requests seeking, among other documents, communications between top DOJ officials and the White House concerning the Flynn case, and today we filed suit to enforce those requests. We also applaud the work of journalist Jason Leopold for litigating his FOIA requests on these issues after the government failed to respond. The pressure from these efforts can force important information out to the public and the cross-pressures created by FOIA litigation can help move institutional actors to comply more readily with all avenues of oversight to avoid being caught in conflicting positions when compelled to make FOIA disclosures.

DOJ’s actions in the Flynn case have further damaged the department’s reputation and institutional standing, and now Trump and his allies reportedly want to elevate Flynn as a sort of martyr for the president’s political cause. If they do, their efforts will further trample one of the core ideals that made America a model to the world: equal justice under law.  They must not be allowed to cloak this move under the guise of upholding justice. We need to counter it with facts. And we need to use every venue and every tool possible to get these facts out.