A Past Case May Dictate How the Michael Flynn Inquiry Proceeds

By Jeffrey Toobin, The New Yorker

23 May 20

ichael Flynn, President Trump’s first national-security adviser, pleaded guilty to lying to F.B.I. agents, in December, 2017, in a case brought by the special counsel Robert Mueller. Earlier this month, the Justice Department asked Judge Emmet G. Sullivan, who oversaw the case against Flynn, to dismiss it, on the ground that the F.B.I. had no basis to conduct an interrogation of him. What should Sullivan do? What can he do? Can a judge maintain a prosecution that the government—the prosecution itself—refuses to continue? Can this judge deny the government’s motion and just proceed to sentence Flynn? The answers are not entirely clear. But there is a clue about what may happen in an especially dramatic chapter from Sullivan’s past.

Last week, John Gleeson, a retired federal judge, published an op-ed piece in the Washington Post, denouncing the Justice Department’s attempt to dismiss the case. “The record reeks of improper political influence,” Gleeson wrote. “Government motions to dismiss at this stage are virtually unheard of.” He offered the court a suggestion: “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.” Sullivan clearly read the piece, because he promptly appointed Gleeson himself, who is now in private practice, to argue against the dismissal of the case against Flynn.

Gleeson’s passing reference to Sullivan’s history “in other situations” as a foe of prosecutorial misconduct is the clue to what may happen this time. It was a reference to a disgraceful episode in the recent history of the Justice Department: the failed prosecution of Senator Ted Stevens, Republican of Alaska. In brief, Stevens was charged with neglecting to report as gifts certain renovations that had been made on his vacation home in Alaska. He was convicted in a trial before Judge Sullivan in 2008, shortly before he lost a bid for a seventh term in the Senate. During and especially after the trial, it came out that prosecutors had withheld a variety of exculpatory material from Stevens’s defense. In light of this, Eric Holder, in one of his first acts as Attorney General, in 2009, dropped the prosecution. Not satisfied with simply ending the case, Sullivan ruled that “the interest of justice requires the appointment of a non-government disinterested attorney”—in that case, it was Henry F. Schuelke III, a Washington lawyer—to investigate the prosecutorial misconduct. While Schuelke was conducting his inquiry, Stevens died in a plane crash, and one of the prosecutors committed suicide. (I wrote about the Stevens prosecution saga here.)

In other words, Sullivan has appointed Gleeson to much the same role as he had named Schuelke, a decade earlier. Of course, there is a major difference between the Stevens and Flynn cases. Stevens was about an excess of prosecutorial zeal, while Flynn is about insufficient effort by the Justice Department: cheating to win versus cheating to lose. “Nothing has changed on the merits of the case against Flynn, therefore there is no credible explanation for the motion to dismiss, other than there might be some kind of improper behavior going on here,” Sam Buell, a professor at Duke Law School and a former federal prosecutor, told me.

The big question for Gleeson, then, is how he will want to proceed with his investigation. He could simply review the Justice Department’s pleadings in the case and conclude, as he did in his op-ed piece, that there is no basis for the government’s legal conclusion—that the F.B.I.’s interrogation of Flynn was justified, and his guilty plea for lying should stand. At that point, Sullivan would have to decide whether to grant the government’s motion and end the case, anyway, or proceed to sentence Flynn. (Sullivan could also seek to charge Flynn with contempt for lying in his courtroom about his interactions with the F.B.I.) It would apparently be without precedent for Sullivan to sentence a defendant even though the government has moved to dismiss the case, but that doesn’t necessarily mean it can’t happen.

Alternatively, Gleeson could ask to proceed much as Schuelke did, and ask Sullivan for permission to examine witnesses to determine why the Justice Department reversed course. (Schuelke took two years and produced a five-hundred-page report about the misconduct in the Stevens case.) An investigation with witnesses would open the door for Gleeson to examine William Barr, the Attorney General, and others in his chain of command to determine if there was any improper influence in the government’s decision. Either way, it looks as if Gleeson will move with considerably more dispatch than Schuelke did. In a letter to Sullivan this week, Gleeson wrote that he will make his first report to the court on June 10th.

In the meantime, on Tuesday afternoon, Flynn’s lawyers asked the United States Court of Appeals for the D.C. Circuit to order Sullivan to dismiss the case, as the Justice Department requested. In the absence of such an order, which seems unlikely, Gleeson will plow ahead. He said that his submission on June 10th will report “any additional factual development I may need before finalizing my argument.” This means that he will indicate at that time whether he wants Sullivan to call witnesses before deciding whether to dismiss the case. The judge, for his part, has set a hearing in the case for July 16th, which may turn out to be only the beginning of his inquiry into why the Justice Department tried to drop the case against Flynn.