There has been a tremendous amount of controversy surrounding Attorney General William Barr’s decision to drop the DOJ’s criminal case against Michael Flynn, former national security advisor to President Trump. Back in 2017, it will be remembered, Flynn pleaded guilty to lying to FBI investigators about his communications, on behalf of the incoming Trump administration, with Russia’s ambassador to the United States. (It is a felony to lie to an FBI agent, or in fact to any official within the executive branch, even when the interviewee is not under oath. This “false statements” statute is an infamous trap for the unwary that enables the FBI to turn many interviewees into “cooperating individuals” who will then tell whatever story, or give whatever testimony, the FBI “suggests” will get them out of being indicted. See here for coauthor Harvey Silverglate’s rundown of this nefarious tactic.)
Flynn’s fateful FBI interview, which was part of Special Counsel Robert Mueller’s broader investigation into Russian interference in the 2016 presidential election, occurred just four days after Trump’s inauguration, at a time when liberals across the country were still reeling from Trump’s unexpected victory over the Democratic nominee, Hillary Clinton. Amidst suspicion that Trump had received an illicit leg up in the presidential race, FBI investigators sought to identify any coordination between Trump’s campaign and Russia’s interference. No doubt wanting to distance himself from allegations of collusion with Russia, Trump initially denounced Flynn, although he later reversed course, especially after a newly released cache of documents pointed toward dubious FBI tactics and prosecutorial misconduct, consequently shedding new light on Flynn’s guilty plea.
In short, the documents strongly suggested that the FBI’s sole purpose for interviewing Flynn was to catch him in a perjury trap, and that prosecutors had failed to disclose exculpatory evidence to Flynn’s lawyers. Following the release of the aforementioned documents, the DOJ moved to dismiss its case against Flynn, arguing that continuing the prosecution “would not serve the interests of justice.” After over two long years of legal battles, Flynn, who by then had been trying to withdraw his guilty plea for months, was finally in agreement with the prosecutors—both sides sought to have the case dismissed.
Enter U.S. District Judge Emmet G. Sullivan. Sullivan is no stranger to, and has previously shown little tolerance for, prosecutorial shenanigans. Back in 2009, after Senator Ted Stevens had been convicted on corruption charges after a contentious trial plagued with extraordinary misconduct on the part of the government, Judge Sullivan vacated the conviction and angrily rebuked Steven’s prosecutors for engaging in the worst misconduct he said he’d seen during his 25 years on the bench. Sullivan went so far as to appoint a special counsel to investigate Steven’s prosecutors, to determine whether they should face criminal charges.
It came as some surprise, then, that Judge Sullivan did not immediately grant the DOJ’s motion to dismiss the case against Flynn. Instead, Sullivan issued an order inviting friend-of-the court briefs to advise him on whether he should dismiss the case. He did this over the strenuous objection of Flynn’s lawyers, who argued that third parties with opinions about the case should make their views known in op-eds, rather than being allowed to inject themselves into a criminal case. Flynn’s lawyers went so far as to file an emergency petition seeking a writ of mandamus from the U.S. Court of Appeals for the D.C. Circuit, to order Sullivan to immediately grant the government’s motion to dismiss Flynn’s case.
Judge Sullivan’s reluctance to acquiesce to the government’s motion was welcomed by many who contend that the motion reeks of political interference by Attorney General William Barr into the law enforcement decisions of the DOJ’s line prosecutors. This contention is especially notable in the wake of Barr’s overruling of the sentencing recommendation of career prosecutors in the case of Roger Stone, Trump’s longtime confidant. The fact that all four of the line prosecutors who worked on Stone’s case resigned after Barr overruled them, plus the fact that none of the prosecutors who worked on Flynn’s case signed the government’s motion to dismiss, invite worries that Barr is making unilateral decisions in the DOJ to protect Trump’s allies.
The DOJ’s motion to dismiss its case against Flynn may well have been the result of political interference by Attorney General Barr. But this has no bearing on whether Judge Sullivan should approve the government’s motion. What is so remarkable about the explosive reactions to Barr’s dismissal by many criminal law “experts” and media columnists and editorialists (and, alas, even by the straight news reporters who appear to take sides rather than merely report the news), is that there seems to be no recognition of the fact that in our constitutional system of separation of powers, the attorney general has the unquestioned and absolute authority to drop a prosecution brought by the Department of Justice, which he heads.
While nothing technically prevents Judge Sullivan from soliciting the opinions of outsiders concerning whether he should dismiss Flynn’s case, this action is totally bizarre as well as futile, given that Sullivan has no choice but to dismiss it. In this light, it seems that Sullivan is acting outside of his authority by questioning Barr’s authority to drop the Flynn prosecution. Sullivan has gone so far as to appoint a retired federal judge (now a partner at a toney law firm) as a “special prosecutor” to look into wrongdoing (i.e., federal crimes) involved in this action by Barr. (If Barr had been bribed to dismiss the indictment, the special prosecutor might have something to do. But nobody with half a brain believes that this was a corrupt, rather than a political, decision by Barr.)
Making the situation even more remarkable is the lineup of those who are strenuously opposing and criticizing Barr’s decision. First, there’s the liberal news media editorialists (e.g. in The New York Times and The Boston Globe), who typically can be counted on to support the dismissal of prosecutions of dubious fairness. Then there are the civil libertarians who ordinarily seek to protect fairness and due process of law, but because it is the Trump administration’s actions at issue, are suddenly joining the law-and-order crowd (e.g. Harvard Law Professor Laurence Tribe’s op-ed in The Boston Globe).
Of course, most Republicans and supporters of the Trump Administration have taken equally partisan positions in support of Barr’s action. But some major conservative media outlets have written supportively yet fairly on Barr’s action, including The Wall Street Journal and The New York Sun. These editorial commentaries criticizing Judge Sullivan’s apparent willingness to usurp executive branch authority are a breath of fresh air in terms of hewing to the constitutional imperative at work here.
This imperative is neither vague nor dubious: The attorney general does indeed have the absolute authority to dismiss the Flynn indictment for any reason (other than a corrupt transaction). The judge has no choice but to follow Attorney General Barr’s request and dismiss the indictment. In the meantime, as Sullivan delays the inevitable dismissal, we are treated to bread and circuses.
Much more will be written about this circus before it is over. But the ultimate outcome, whether it results from Judge Sullivan’s growing tired of playing the ringmaster, or, more, likely, from the appeals court ordering Sullivan to put an end to this nonsense, is perfectly clear: The DOJ’s case against Michael Flynn will be dismissed. One only hopes that this heightened sense of fair play from and within the Department of Justice will become the new normal (rather than merely a favor to a presidential crony), both during the remainder of the Trump administration and beyond.
Harvey Silverglate, a criminal defense and civil liberties lawyer, is the author (with Sidney Powell) of Conviction Machine: Standing Up to Federal Prosecutorial Abuse. Monika Greco, Silverglate’s research assistant, is an incoming Ph.D. student in philosophy at the University of Pennsylvania.
