US District Judge Emmet Sullivan is not so much concerned with the “not a bang, but a whimper” stuff. When President Trump and Attorney General Bill Barr try to get a card out of jail for Michael Flynn, the court can’t stop them. But they, in turn, cannot prevent Judge Sullivan from pointing out the senior marsh gas odor of corruption that has emanated from every part of this case since Bill Barr intervened to blow up the charges.
Yesterday the court denied the government’s motion to dismiss the case against Flynn on the basis of Rule 48 (a), but granted the motion to approve dismissal as prosecution is now under discussion through the post-election pardon for the president.
“Since the law recognizes the president’s political pardon, it is appropriate to dismiss this case as contentious,” wrote Judge Sullivan, with the caveat that “a pardon does not necessarily render a defendant” innocent “of alleged violations of the law. Indeed the Supreme Court has recognized that accepting a pardon implies a “confession” of guilt. “
Indeed, the statement notes that Flynn has repeatedly sworn under oath of his guilt of lying to the FBI and the additional, unproven, illegal failure to register as an agent of a foreign government.
Judge Sullivan’s harshest criticism, however, is of the Justice Department, which, more than two years after Flynn signed the first objection agreement, decided that its lies to the FBI weren’t really material after all, and oh, hey, maybe Flynn did not even done i know he lied anyway. Perhaps he just forgot that he had called the Russian ambassador on December 29 and promised that Donald Trump would reverse Obama’s sanctions after inauguration. Sure, the call had been the subject of reports in the Washington Post and the Wall Street Journal, but it could only have crossed the mind of the poor National Security Advisor when those scary FBI agents asked him about it all those long months later
Or, as Judge Sullivan put it:
Regarding Mr. Flynn’s alleged “flawed memory”, Mr. Flynn is not anyone; He was the president’s national security adviser, clearly in a position of trust, claiming that in less than a month he forgot that he had personally asked the Russian ambassador for a favor that had undermined the sitting president’s policies before the president-elect takes office.
So much for the government’s belated realization that it “was doubtful that it could prove the falseness of Mr. Flynn’s statements”.
Regarding the DOJ’s claim that Flynn’s lies, if they were, were irrelevant, Judge Sullivan dryly notes that “the government is relying on a reformulated definition of” materiality “that is more circumscribed than the standard in this one Cycle. ”Any defendant charged with violating 18 US Code § 1001 would have such a generous definition of materiality, but after the Justice Department’s treatment of FBI attorney Kevin Clinesmith, this seems like a ticket which is only valid for one trip.
Judge Sullivan has nothing to do with the government’s change of heart after declaring for months that Flynn’s lies actively obstructed the Mueller investigation.
Given the government’s previous argument in this case that Mr. Flynn’s false statements were “absolutely material” because his false statements went “to the core” of the FBI’s investigation, the unexplained government U-turn raises regularity concerns about his Decision-making process.
The word “pretext” appears several times in the statement, with the court expressing its strong skepticism that President Trump’s constant tweeting about Flynn and the discussion of the case with Flynn’s new lawyer Sidney Powell has nothing at all to do with the changed position of the DOJ have to do.
“In this regard, the new legal positions taken by the government in its Rule 48 (a) motion and in the hearing on the motion raise questions about their motives for filing for dismissal,” wrote Judge Sullivan, later adding: “Where, as here, the government justifies its request by ignoring applicable law in order to now question the strength of its case, serious doubts arise about the reasons given by the government for requesting a dismissal. “
Apparently, like the 2,300 ex-Justice Department staff who signed an open letter demanding the attorney general’s resignation, Judge Sullivan was unimpressed by Bill Barr’s protests against CBS, he was simply defending the poor, enforcing Michael Flynn’s rights, and “the Groups normally concerned about civil liberties and ensuring that proper procedures are followed and standards are set seem to ignore this and are ready to destroy people’s lives and commit great injustices. “
But the presidential pardon pen is a powerful weapon, so the court had no choice but to release Michael Flynn back into the wild to beat the Qanon craze and cash those cute wingnut charity checks. The world is not a fair place.
Sometimes the bear eats you.
Memorandum Opinion [US v. Flynn No. Case 1:17-cr-00232-EGS (D.D.C. December 8, 2020)]
Elizabeth Dye (@ 5DollarFeminist) lives in Baltimore, where she writes about law and politics.