Judge Takes Parting Shot At DOJ While Dismissing Case Against Pardoned Flynn

Republican presidential candidate Donald Trump, conducts a roundtable discussion on national security in his offices in Trump Tower in New York, Wednesday, Aug. 17, 2016. Left is Ret. Army Gen. Mike Flynn and right is Ret. Army Lt. Gen. Keith Kellogg. (AP Photo/Gerald Herbert)
Republican presidential candidate Donald Trump, conducts a roundtable discussion on national security in his offices in Trump Tower in New York, Wednesday, Aug. 17, 2016. Left is Ret. Army Gen. Mike Flynn and right i... Republican presidential candidate Donald Trump, conducts a roundtable discussion on national security in his offices in Trump Tower in New York, Wednesday, Aug. 17, 2016. Left is Ret. Army Gen. Mike Flynn and right is Ret. Army Lt. Gen. Keith Kellogg. (AP Photo/Gerald Herbert) MORE LESS
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December 8, 2020 2:00 p.m.

Following President Trump’s controversial pardon, U.S. District Judge Emmet Sullivan dismissed the pending criminal case against former National Security Advisor Michael Flynn, bringing to a close one of the most dramatic episodes in the Russia investigation and subsequent interference at the Justice Department to undercut it.

In an order Tuesday, Sullivan said he was granting the motion to dismiss the case as moot due to last month’s pardon. The order was accompanied by a 43-page opinion (below).

“Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot,” Sullivan said. Quoting another court case, however, Sullivan said that, “pardon ’does not, standing alone, render [Mr. Flynn] innocent of the alleged violation.’”

Trump’s pardon came after the Justice Department spent months trying to get the case dismissed on the grounds that it no longer believed Flynn’s prosecution was warranted.

Sullivan’s efforts to probe the reasons for the Justice Department’s sudden and highly unusual reversal — rather than immediately grant its request to drop the case — prompted a protracted court battle over the limits of executive and judicial power under the Constitution.

Flynn pleaded guilty in special counsel Robert Mueller’s investigation to making false statements to the FBI about his contacts with Russian officials.

Much of the Sullivan’s written opinion explores his thinking about the Justice Department’s shocking May request to drop the case. The Justice Department reversal came after it had long defended the Flynn prosecution, even as Flynn himself tried to walk away from his guilty pleas. Sullivan writes that the reasons DOJ gave at the time for wanting the case dropped were “pretextual, particularly in view of the surrounding circumstances.”

The two main rationales the Justice Department gave to explain the dismissal “were dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions,” Sullivan writes.

The argument that the Justice Department made about Flynn’s lies to the FBI not being material to the investigation was a “perplexing” argument, Sullivan writes, as it was at odds with previous claims the government made in the case. The Justice Department could not “direct the Court’s attention to any other case in which it has advanced this highly-constrained interpretation of materiality as applied to a false statements case,” Sullivan writes.

Sullivan, addressing the second rationale the Justice Department provided, questions its suggestions that the government was no longer confident that Flynn willingly lied.

Sullivan also questions the the argument the Justice Department made when supporting Flynn’s bid to get an appeals court to intervene in Sullivan’s handling of the matter.

The position that the DOJ took at one of those hearings, that the court would have no discretion to deny a dismissal request in the event that it was undisputed that the attorney general received a bribe for the dismissal, was “remarkable,” Sullivan writes.

Nevertheless, Sullivan says that the question of whether he would have granted the May dismissal request was a “close” one.” However, in view of the President’s decision to pardon Mr. Flynn, Mr. Flynn’s acceptance of the pardon, and for the reasons stated in the following section, the appropriate resolution is to deny as moot the government’s motion to dismiss,” he writes.

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