How Sullivan’s Parting Shot On Flynn Showed The Folly Of The DOJ’s Sketchy Reversal

CREDIT: DOMINIC BRACCO II FOR THE WASHINGTON POSTSLUG:na/sullivanDATE:4/9/2009CAPTION: Judge Emmet G. Sullivan works at his office on April 9, 2009 in D.C. Sullivan threw out the indictment against former Sen. Ted Stevens this week.
Judge Emmet G. Sullivan works at his office on April 9, 2009 in D.C. (DOMINIC BRACCO II FOR THE WASHINGTON POST/Getty Images)
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December 9, 2020 3:33 p.m.

Perhaps, the most remarkable thing about U.S. District Judge Emmet’s Sullivan 43-page opinion explaining why he was dismissing Michael Flynn’s case was that it ended on such a note in the first place. 

For years, it’s been speculated that President Trump would pardon Flynn, his former national security advisor who pleaded guilty in 2017 to lying to the FBI about his Russian contacts.

Trump even offered a Flynn pardon over the summer, according to the account of his lawyer Sidney Powell, but she turned down the suggestion.

Instead, she, with the cooperation of Attorney General Bill Barr, launched a norm-busting crusade to use the judicial process to exonerate Flynn. In the process, they made claims about his prosecution that, at best, were dubious, but, as Sullivan saw them, were likely “pretextual” and possibly driven by “favoritism.” 

The Justice Department request in May that Sullivan drop the case was a shocking one, and a capstone to a pattern of Barr intervening in the cases brought against Trump’s allies. How the Justice Department got there also followed a roadmap Powell privately laid out to Barr when she first took on Flynn’s case in June 2019.

“What they wanted was a decision [clearing Flynn] that was labeled a legal decision,” rather than a presidential pardon, said University of North Carolina School of Law professor Carissa Hessick. “DOJ was arguing that they would not be able to prove Flynn’s guilt … that’s what Judge Sullivan takes great pains to argue isn’t a credible position for them to have taken.”

Sullivan’s opinion stops short of saying whether that lack of credibility would have led him to reject the May dismissal request. But regardless, the effort to go that route, rather than just secure a pardon from Trump, came at a considerable cost for those who participated in it.

“Look how much political capital Barr had to spend of his own and of the DOJ, and how many DOJ lawyers have to have a fight over this Flynn case,” said Fordham University law professor Jed Shugerman. “His intervention put himself in the crosshairs, for what ultimately was a total waste, because in the end Trump had to pardon Flynn anyway.”

A ‘Political’ Decision To Clear Flynn, Rather Than a Legal One

As John Gleeson, the retired judge Sullivan appointed to oppose the Justice Department’s May dismissal request, put it in a brief, if the executive branch wanted to treat Flynn differently because he was a friend of the President, the appropriate way to do so was through the President’s “unreviewable authority to issue a pardon.”

Sullivan adopted the view that the pardon left him no choice but to dismiss the case.

“The Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one,” Sullivan wrote. “Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot.”

Noting the “extraordinary broad” scope of Trump’s pardon for Flynn, Sullivan framed its relevance to the case narrowly. He stated he “need only consider the pardon insofar as it applies to the offense to which Mr. Flynn twice pled guilty in this case.”

But his emphasis on it being a political decision allowed him to leave unresolved the legal questions put before him in the Justice Department’s dismissal motion, according to Kimberly Wehle, a law professor at the University of Baltimore.

“He’s made a point of saying, ‘Listen, judges are not going to buy into a politicized process. But guess what, pardons are political, so that is a political thing, it’s not a legal thing. So I will treat this as moot,'” she said

Hints Of What The Judge Thought About The DOJ’s Legal Arguments

Even while calling those legal questions moot, Sullivan put his thumb on the scale for at least some of them in the 20 or so pages he spent analyzing them. He pointedly rebuked the Justice Department’s arguments about him lacking the authority to even probe its reasons for wanting the case dropped.

“Reading between the lines, I think that one can reasonably speculate that Sullivan would have rejected the DOJ’s move to drop the charges and wanted to signal as much without saying it explicitly,” Shugerman said.

Maybe Sullivan would have concluded that even though Flynn did appear, beyond reasonable doubt, guilty of his crime, it was still within the Department’s discretion to walk away from the prosecution. 

Even still, Sullivan’s opinion highlighted why the DOJ’s approach to bailing on the case was so damaging to its reputation, To claim that it no longer believed that Flynn’s lies were “material” to its investigation, the Department used a higher standard for “materiality” than it had not employed in any other case, and after it employed the usual lower standard earlier in the Flynn proceeding. The evidence the DOJ put forward for why it no longer believed Flynn knew he was lying to the FBI was irrelevant to the question, or contradicted by other evidence in the case.

There’s also a separate universe, where, instead of concocting obviously bogus rationales to clear Flynn, the Justice Department, when it asked for the case’s dismissal, just told Sullivan the simple truth: that the attorney general had made a decision to have it dropped.

“Who knows what Judge Sullivan would have done,” Hessick said, as he may have been still troubled by the apparent favoritism. “But that was not the case that was before him.”

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