“This is a pardon disguised as a technical legal matter.”
In an extraordinary move, the Justice Department has dropped its case against former National Security Adviser Michael Flynn, who pleaded guilty in 2017 to lying to the FBI about several conversations he had with the Russian ambassador in 2016.
According to a filing signed by Timothy Shea, the US attorney for the District of Columbia, the DOJ concluded after “an extensive review and careful consideration of the circumstances … continued prosecution of this case would not serve the interests of justice.”
The decision to toss out Flynn’s case is, to put it mildly, controversial. The DOJ is saying, implicitly, that they can’t prove that Flynn committed the crime he already confessed to, or that it’s simply not worth prosecuting even though he already pled guilty. Either scenario is, well, odd.
On the surface, there’s only one reason to drop this case: politics. Trump, and his Attorney General Bill Barr, think the Russia investigation was bogus to begin with. Flynn’s lawyers, for their part, have insisted that the FBI mishandled the investigation and entrapped him.
So what’s the deal here? Is there a legitimate legal reason for the DOJ to drop this case? And if not, what does that mean for the Justice Department moving forward?
To get some answers, I reached out to eleven legal experts. While there wasn’t a perfect consensus, every expert agreed that the DOJ’s decision was highly unusual at best and an attack on the rule of law at worst.
“Bill Barr has sacrificed the integrity of the Justice Department and undercut the rule of law for political ends,” Lisa Kern Griffin, a law professor at Duke, told me.
Ultimately, they said, this is likely to further damage the credibility of a Justice Department that has already become a deeply politicized institution in the Trump era.
Their full responses, lightly edited for clarity, are below.
Diane Marie Amann, law professor, University of Georgia
Under US law — though not necessarily that of some other countries — it is within the prosecutor’s discretion to drop a case for almost any reason. In that sense, the decision appears to be legal. To do so after a federal judge has accepted the defendant’s under-oath guilty plea is highly unusual, however, and in this instance the surrounding circumstances truly are extraordinary. All that spurs questions about the legitimacy and consequences of the Department of Justice decision. Even though the judge might make inquiries, at this point the ultimate answers seem likely to lie with the American electorate.
Renato Mariotti, former federal prosecutor, 2007 to 2016
It is highly unusual for the government to dismiss a defendant’s case after he has pleaded guilty, and the DOJ’s motion contains arguments that are inconsistent with long-standing DOJ policy and practice.
There are good reasons to consider changing how DOJ handles interviews of subjects, as well as when and how it charges people for lying to the FBI. But Flynn’s case is not unlike many other cases in which the FBI interviewed someone without their attorney present with the expectation that the subject would lie.
Any change to how the FBI handles cases like Flynn’s should be done across the board, for all defendants. What we’re left with is a criminal justice system that has different rules for Donald Trump’s friends than it has for everyone else. That’s corruption, plain and simple.
Jessica Levinson, law professor, Loyola Law School
Attorney General Bill Barr has been a wonderful attorney for the president, but not always for the American public. He has done a great deal to politicize the Department of Justice. At times it looks more like the Department of Trump than the Department of Justice.
Michael Flynn, who for a short time served as President Trump’s national security advisor, has been accused of lying to the FBI about his conversations with the Russian Ambassador. The accusations regarding Flynn came to light as a result of Special Counsel Robert Mueller’s investigation into possible collusion between the Trump campaign and the Russian government. For those of you following along at home, lying to federal agents is still a federal crime. In fact, Flynn ADMITTED to committing to that crime, and then later withdrew his guilty plea.
There is certainly a good political reason for the DOJ’s decision to drop its charges against Flynn. This is welcome news for Trump, who has long decried the prosecution of Flynn as bogus, and his supporters. It also means Trump will be able to avoid the decision as to whether or not to pardon Flynn.
The federal prosecutors who recommended dropping the charges against Flynn have said new information and material coming to light. Much of this material includes the internal deliberations of the FBI about the case. It is worth noting that one of the career prosecutors on the case withdrew as the decision to drop the charges against Flynn were made.
If the new evidence truly shows that for years the prosecutors bringing the case, and the judge who accepted the guilty plea, were all lacking necessary information, then the DOJ made the correct call. But there are plenty of red flags here, and one wonders whether or not the DOJ would have reversed course on the prosecution of a Trump ally, one he has publicly supported, if we didn’t all have our eyes and ears turned towards news of a global pandemic.
Like so many other aspects of the Trump administration, the DOJ’s actions may not represent a long-term, paradigm-shifting approach to political sensitive prosecutions. In one or five years, when the next administration arrives, the DOJ may once again become a more independent agency seeking justice, and not as attuned to political wins and loses. And so at this point it is difficult to suss out the long-term consequences of this decision. This may be merely an ill-conceived blip; a decision made while we all had our eyes on curves and whether or not they are flattening.
Joshua Dressler, law professor, Ohio State University
On the face of it, this appears to be nothing more than another attack on the rule of law perpetrated by those working in the Trump administration. I can only hope that Judge Sullivan will conduct a hearing to determine whether there is any justification for Attorney General Barr’s remarkable actions.
In light of Barr’s politicized actions in the past, I suspect that this is more of the same. As for the effects, it will have no effect on Michael Flynn who would likely have been pardoned anyway. And those who believe in “deep state” conspiracies will simply nod their head and say, “I told you so.” But, this will be another blow to the morale of career lawyers working in the Justice Department and beyond.
And, lest we forget, when the rule of law is attacked, we are all at risk.
Miriam Baer, law professor, Brooklyn Law School
At this stage, it would be impossible to see the DOJ’s action through anything other than a political lens. The so-called failures described in the government’s brief are hardly so out of the ordinary as to cause high-level department officials to reconsider a prosecution that previously resulted in a guilty plea as well as a district court’s determination the false statements in question were in fact “material.”
The longer-term problem is this: as a general rule prosecutors should be willing to reconsider cases, particularly when it appears a miscarriage of justice has occurred. Moreover, whenever changeovers in administrations or personnel occur, we want new prosecutors to look at cases — even those cases in which the defendant has previously entered a guilty plea — with a fresh set of eyes and healthy degree of skepticism.
In this case, however, too much has happened to accord the DOJ that degree of deference. At this stage of the game, Flynn’s case will be perceived as another chip in the department’s veneer of neutrality and further evidence that the agency has become dangerously politicized. Not only will this further depress morale, but it will drive more career prosecutors to retire early or seek positions in private practice. Moreover, it will cause additional talented attorneys to forego applications to either Main Justice or the United States attorneys offices. It may take some time to see the downstream consequences of this “talent drain” but when we do finally realize it, it will take quite some time to cure.
Jimmy Gurulé, law professor, Notre Dame
The Department of Justice under attorney general William Barr will likely be remembered as the most politicized Department of Justice in history. In a matter of a few months, Barr has personally intervened in two cases to protect President Trump’s political cronies. In February 2020, Barr overruled the sentencing recommendation of career prosecutors in order to secure a lesser sentence for Roger Stone, President Trump’s long-time political ally.
Now, Barr has gone even further by dropping the criminal charges against Michael Flynn, Trump’s former National Security Director. As a former federal prosecutor and U.S. Assistant Attorney General, it deeply saddens me to witness the severe and incalculable damage being inflicted to the independence and integrity of the Department of Justice.
The rule of law is in imminent peril.
Ric Simmons, law professor, Ohio State University
All of the credible evidence points to the conclusion that the Attorney General dismissed this case for political reasons. Contrary to what the Department of Justice is now saying, this was a legitimate charge that was strongly supported by the evidence. Flynn presented these same arguments of entrapment and prosecutorial overreach to the federal judge in charge of his case — a judge who has a history of holding prosecutors accountable — and the judge definitively rejected them.
Unfortunately this decision is consistent with a broader pattern of how Attorney General Barr has been running the Justice Department. One of his first actions as President Trump’s Attorney General was releasing a misleading summary of the Mueller report to make it appear as though the report exonerated the President, even though it did not. During the impeachment investigation of 2019, a federal judge held Barr in contempt for refusing to obey lawful Congressional subpoenas. And earlier this year, Barr intervened in the sentencing of Roger Stone, another Trump associate, by overruling career prosecutors and recommending a more lenient sentence.
These actions are contrary to the longstanding tradition of an independent Justice Department that acts in the best interest of the United States.
Jens David Ohlin, law professor, Cornell University
This is an extraordinary 180-degree turn for the Justice Department to make. The new motion is predicated on a bizarrely narrow application of the concept of “materiality” — an application that is completely out of step with how the department applies that concept in other prosecutions.
Put simply, Flynn lied about the substance of his calls with the Russian Ambassador by saying that he didn’t discuss sanctions. The DOJ now says that these lies were not “material” to the department’s counterintelligence investigation. How could this be? The dismissal motion says that “Mr. Flynn’s request that Russia avoid ‘escalating’ tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States.” This is a particularly naive view of Flynn’s phone call.
Russia interfered in the 2016 election and the Trump administration wanted to reward Russia for this interference by unwinding any sanctions imposed by the Obama administration. Flynn’s phone calls — which took place while Obama was still President — must be seen in this context. Flynn’s interview was not “untethered” to the counterintelligence investigation, it was central to it.
Ciara Torres-Spelliscy, law professor, Stetson University
On the same day that the Supreme Court decided the Kelly v. US case, better known as the Bridgegate case, the Department of Justice’s dropping charges against Michael Flynn makes this a banner day for corruption.
In Kelly v. US, the US Supreme Court decided unanimously that Bridget Anne Kelly would not go to jail for her role in Bridgegate because even though “for no reason other than political payback, Baroni and Kelly used deception to reduce Fort Lee’s access lanes to the George Washington Bridge — and thereby jeopardized the safety of the town’s residents. But not every corrupt act by state or local officials is a federal crime.” The Kelly case is likely to make corruption prosecutions involving lying to the public more difficult, if not impossible, to prosecute.
Meanwhile, the Department of Justice’s choice to drop charges against Michael Flynn is disgraceful. Michael Flynn lied to the FBI and admitted that he lied both in his guilty plea and then in person to the judge in his case. Lying to federal authorities like the FBI is a federal crime under 18 U.S. Code § 1001. Dropping the case against him does damage to the rule of law which requires the DOJ to treat like cases alike and for the United States to be a nation of laws, not men.
DOJ’s own internal guidance on 18 U.S. Code § 1001 states that individuals convicted of violating this part of the law are eligible for up to five years in prison or fines of up to $250,000. The unmistakable impression that had been left by the Flynn affair is that he is being treated differently because he is close to the President. This is not the way the administration of justice should work in America.
Between Michael Flynn’s freedom and Bridget Anne Kelly’s freedom, this has been a stellar moment for white-collar criminals getting away with crimes for which others would have been incarcerated. Today is a mournful day for anyone who still had faith in the rule of law. But it is an election year, and the electorate has a chance to change who is in power in November. A new administration would bring a new Attorney General, preferably one who will enforce the law without fear or favor.
Christopher Slobogin, law professor, Vanderbilt University
Dismissing charges against a person who has already pleaded guilty to them on the ground that there was insufficient evidence to convict is virtually unheard of, unless new exculpatory evidence has surfaced. In this case, the DOJ purportedly has changed its mind about whether Flynn’s misstatements were “material”. An immateriality argument rarely wins in front of a jury, because it requires an admission that the statement is false and because the definition of materiality is very broad. This is a pardon disguised as a technical legal matter.
Lisa Kern Griffin, law professor, Duke University
Bill Barr has taken extraordinary steps to “erase” the Mueller investigation on the president’s behalf, from misrepresenting Mueller’s findings to the public, to intervening in Roger Stone’s sentencing proceedings, to attacking the federal agents and prosecutors who investigated Russian interference in the 2016 election.
Dismissing the charges against Michael Flynn — who has twice acknowledged under oath that he lied to FBI agents about his conversations with the Russian ambassador and voluntarily entered a guilty plea —i s the most brazen move Barr has made yet. It is openly corrupt and legally indefensible. To say that Flynn’s lies about contacting the Russian ambassador were not material to a national security investigation is inconsistent with precedents about what 18 U.S.C. 1001 requires and is a position the government seems to be taking for one case only.
The whole point of a special counsel is to insulate sensitive investigations from political considerations. But AG Bill Barr has sacrificed the integrity of the Justice Department and undercut the rule of law for political ends.
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Author: Sean Illing
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