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The Justice Department’s move to drop Michael Flynn’s case is on hold

The judge in the case has appointed a retired federal judge to argue against the DOJ’s move.

Former US National Security Adviser General Michael Flynn arrives at US District Court in Washington, DC, on December 18, 2018.
Saul Loeb/AFP via Getty Images
Jen Kirby is a senior foreign and national security reporter at Vox, where she covers global instability.

The legal case against former Trump National Security Adviser Michael Flynn has taken another strange twist. A week after the Justice Departments widely criticized move to drop Flynn’s guilty plea, the federal judge in the case has basically said, “Wait, not so fast.”

US District Court Judge Emmet G. Sullivan said Wednesday that he will appoint retired New York federal judge and former prosecutor John Gleeson to argue against the Justice Department’s motion to dismiss Flynn’s case. Sullivan has also asked Gleeson to examine whether, in trying to rescind his guilty plea about lying, the former National Security Adviser might have committed perjury.

This is another remarkable step in an already charged case. Flynn pleaded guilty in December 2017 to lying to FBI investigators about his contacts with the Russian ambassador to the US during Donald Trump’s presidential transition, when Flynn, a retired US Army lieutenant general, was serving as a senior member of the president-elect’s transition team.

But last week, Trump’s Justice Department, led by Attorney General Bill Barr, upended the case by submitting a motion to dismiss all charges against Flynn. It was a controversial move, as it looked like yet another instance of Barr’s Justice Department overriding the discretion of prosecutors in a way that would seem to protect the president’s interests.

Then, this week, Sullivan had said he would allow others to submit outside arguments (“friend of the court” briefs) on the DOJ’s motion to dismiss Flynn’s 2017 guilty plea for lying to the FBI about his Russian contacts.

This all puts Flynn’s status temporarily in limbo, as Sullivan has declined to immediately greenlight the Justice Department’s request. Sullivan doesn’t have a ton of leeway here, but the circumstances are anything but ordinary, and he is able to press the government on the reasoning for its about-face.

Flynn’s attorneys initially objected to Sullivan’s move to accept outside opinions. “This travesty of justice has already consumed three or more years of an innocent man’s life—and that of his entire family,” they wrote. “No further delay should be tolerated or any further expense caused to him and his defense. This Court should enter the order proposed by the government immediately.”

It is still unlikely this will ultimately change Flynn’s fate, but it does drag out this more than two-year-old case a bit longer. And given the politically charged, and bizarre, nature of Flynn’s case, Sullivan is at least clearing the way for arguments against the Justice Department’s actions, as criticism for its reversal on the Flynn matter has come from everyone from former federal prosecutors to a former president.

The many twists and turns of Flynn’s case

Flynn pleaded guilty in December 2017 to making false statements to federal law enforcement about his communications with Russian Ambassador Sergey Kislyak in December 2016 about sanctions imposed by Barack Obama’s administration.

When FBI agents asked him about those conversations in early 2017, Flynn denied that he’d brought up sanctions. Prosecutors also found evidence that Flynn may have broken the law elsewhere, including for failing to register as a foreign lobbyist, but prosecutors charged him with that one count of lying to the FBI in former special counsel Robert Mueller’s investigation.

As part of his plea deal, Flynn agreed to cooperate with Mueller’s team and prosecutors initially praised his cooperation. But when it came time for Flynn’s sentencing in December 2018, the former national security adviser reversed course and suggested he’d been railroaded by prosecutors.

Judge Sullivan appeared irked by Flynn’s attitude shift, and at the time, he spoke harshly about Flynn’s conduct, suggesting that he’d “sold his country out.” Sullivan then asked if Flynn would prefer to delay sentencing to get the full credit for his cooperation, which he postponed for 2019.

But Flynn’s legal team continued, eventually trying to rescind his guilty plea altogether. This time, though, Flynn had a sympathetic ear in the Justice Department — Barr, who’s made no secret of his skepticism of the Russia probe. He appointed an outsider prosecutor to review Flynn’s case and, in the process, uncovered internal FBI documents and what he saw as mistakes and missteps, and recommended the case be dropped.

Last week, the Justice Department filed a motion to do so, essentially siding with the defense that the investigation was questionable, and “would not serve the interests of justice.”

None of the prosecutors who worked on Flynn’s prosecution signed the motion to dismiss the case against him, and one of the lead prosecutors withdrew from the case altogether. Sixteen former Watergate prosecutors have also submitted a filing arguing against the Justice Department’s decision. (Sullivan has, so far, denied the brief.)

Gleeson, the former judge whom Sullivan has appointed to oppose the Justice Department in the Flynn matter, co-authored a Washington Post op-ed this week critical of the DOJ’s actions, calling it irregular and reeking of “political influence.” The op-ed also says the judge had the power to delve much deeper into the government’s motivation, including by forcing the government to release documents that would back up their case.

“It can appoint an independent attorney to act as a ‘friend of the court,’ ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role,” the op-ed says. “If necessary, the court can hold hearings to resolve factual discrepancies.”

Barr’s Justice Department has previously moved to intercede in cases of Trump’s former associates, most notably that of Roger Stone, who was convicted for lying to Congress in a trial last year. And Flynn did lie to FBI agents — something he admitted to multiple times — raising questions of unequal treatment, especially if certain defendants happen to have the backing of the president of the United States.

Trump and his allies, who’ve long dismissed the Russia investigation as a “deep state” plot against the president, have cheered the Justice Department’s move and claimed that it somehow points to a vast conspiracy by the Obama administration to frame Flynn and undermine the president.

But Flynn — and Barr’s Justice Department — are not off the hook just yet. Sullivan can still hear these outside arguments and, if he chooses, question the government on their decision to drop the case. Whether that will change the outcome of the Flynn case seems less clear; the president himself said last week that though he’s not a judge, “he has a different type of power” — an apparent reference to his ability to pardon.

“But I don’t know that anybody would have to use that power,” Trump added. “I think he’s exonerated.”

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