President Obama Declares “There Is No Precedent That Anybody Can Find” For The Flynn Motion [He May Want To Call Eric Holder]

President_Barack_Obama Former President Barack Obama is being quoted from a private call that the “rule of law is at risk” after the Justice Department moved to dismiss the case against former national security adviser Michael Flynn. Obama reportedly told members of the Obama Alumni Association that “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.”  Without doubting the exhaustive search referenced by President Obama, he might have tried calling one “alum”: former Attorney General Eric Holder.  Holder moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan. [Notably, CNN covered the statements this morning without noting the clearly false claim over the lack of any precedent for the Flynn motion]

 The Obama statement is curious on various levels.  First, the exhaustive search may have been hampered by the fact that Flynn was never charged with perjury. He was charged with a single count of false statements to a federal investigator under 18 U.S.C. 1001. I previously wrote that the Justice Department should move to dismiss the case due to recently disclosed evidence and thus I was supportive of the decision of Attorney General Bill Barr.
Second, there is ample precedent for this motion even though, as I noted in the column calling for this action, such dismissals are rare.  There is a specific rule created for this purpose.  Federal Rule of Criminal Procedure 48(a) states the government may dismiss an indictment, information or complaint “with leave of the court.” Moreover, such dismissals are tied to other rules mandating such action when there is evidence of prosecutorial misconduct or fundamental questions about the underlying case from the view of the prosecutors.  I wrote recently about the serious concerns over the violation of Brady and standing court orders in the production and statements of the prosecutors in the case.

Third, there is also case law.  In Rinaldi v. United States, 434 U.S. 22 (1977) which addressed precedent under Petite v. United States, 361 U.S. 529 (1960) dealing with the dangers of multiple prosecutions.   There are also related cases in Bartkus v. Illinois, 359 U. S. 121 (1959), and Abbate v. United States, 359 U. S. 187 (1959).  The Rinaldi decision involved a petitioner convicted of state offenses arising out of a robbery, who believed that the government should have moved to dismiss a federal offense arising out of the same robbery under the Department’s Petite policy. The Court laid out the standard for such motions.  The thrust of that controversy concerned double jeopardy and dual jurisdictions. However, the point was that the rule is key in protecting such constitutional principles and that courts should be deferential in such moves by the Department: “In light of the parallel purposes of the Government’s Petite policy and the fundamental constitutional guarantee against double jeopardy, the federal courts should be receptive, not circumspect, when the Government seeks leave to implement that policy.”

There are also lower court decisions on this inherent authority.  For example, in the D.C. Circuit (where the Flynn case was brought), the ruling in United States v. Fokker Servs. B.V., No. 15-3016 (D.C. Cir. 2016) reaffirms the deference to prosecutors on such questions. The Court noted that this deference extends to core constitutional principles:

“The Executive’s primacy in criminal charging decisions is long settled. That authority stems from the Constitution’s delegation of “take Care” duties, U.S. Const. art. II, § 3, and the pardon power, id. § 2, to the Executive Branch. See United States v. Armstrong, 517 U.S. 456, 464 (1996); In re Aiken Cnty., 725 F.3d 255, 262-63 (D.C. Cir. 2013). Decisions to initiate charges, or to dismiss charges once brought, “lie[] at the core of the Executive’s duty to see to the faithful execution of the laws.” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986). The Supreme Court thus has repeatedly emphasized that“[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.” United States v. Batchelder, 442 U.S. 114, 124 (1979); see Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

Correspondingly, “judicial authority is . . . at its most limited” when reviewing the Executive’s exercise of discretion over charging determinations.  . . . The Executive routinely undertakes those assessments and is well equipped to do so.”

Fourth, there are cases where the Department has moved to dismiss cases on grounds of prosecutorial misconduct or other grounds touching on due process, ethical requirements or other concerns.  One that comes to mind is United States v. Stevens where President Obama’s own Attorney General, Eric Holder, asked the same judge in the Flynn case to dismiss that case.  That was just roughly ten years ago.  As with Flynn, there was an allegation of withheld evidence by prosecutors.

Eric_Holder_official_portraitAt the time of the motion Holder declared “The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis.”  What is obvious is the new guidelines issued at the time were honored in the breach during the Flynn prosecution.

While people of good faith can certainly disagree on the wisdom or basis for the Flynn motion, it is simply untrue if President Obama is claiming that there is no precedent or legal authority for the motion.

The rare statement by President Obama is also interesting in light of the new evidence. As I discussed in a column this morning in the Hill newspaper, the new material shows that Obama was following the investigation of Flynn who he previously dismissed from a high-level position and personally intervened with President Donald Trump to seek to block his appointment as National Security Adviser. Obama reportedly discussed the use of the Logan Act against Flynn. For a person concerned with precedent, that was also a curious focus.  The Logan Act is widely viewed as unconstitutional and has never been used to successfully convicted a single person since the early days of the Republic.  Now that is dubious precedent.

560 thoughts on “President Obama Declares “There Is No Precedent That Anybody Can Find” For The Flynn Motion [He May Want To Call Eric Holder]”

  1. Hey, Jonathan, you seem like a smart guy, even if you also seem devoted to being a toady. Does it faze you at all that half the people who read and comment on your column are racist wingnuts who still can’t forgive Obama for being president while Black? Because you really should reflect on that before you take too much pleasure in your scholastic arguments about how many angels can dance on the head of the constitutional pin.

    1. Blah blah blah blah…are you not smart enough to rebut any points he made. Just a bunch of hot air coming out of your mouth.

    2. Flynn was charged only with making false statements to a federal official. He plead guilty under plea agreement. However:

      1) Lacking any underlying investigation, the interview should have never been conducted under DOJ rules. The DOJ can’t just interview people for no reason, then prosecute them for any inconsistencies in their answers. Federal law makes materiality an essential element of a false-statements charge.The FBI’s then-director, James Comey, authorized closing the investigation in December 2016, and the paperwork to do so was completed on Jan. 4, 2017 — 20 days before the Flynn interview.

      2) Flynn was not arrested or mirandized. He was assured several times the interview was not part of an on-going investigation.

      3) There were numerous inconsistencies in the government’s accounts of what was said during the interview. Notes from the interview were edited after the fact into a more damning version of what was said. The interview was not recorded, despite a DOJ rule requiring such a recording. Persons present at the interview initially said he didn’t lie. Both Flynn and the investigators, moreover, knew the Kislyak discussions were recorded. Flynn stressed during the interview that that the agents could listen to the conversation if they wanted to know what was discussed. Again, there was no purpose to the interview, and no point for Flynn to lie to the investigators, other than to set up a possible false statements charge.

      4) The government illegally withheld Brady materiel, i.e. exculpatory evidence. This included a previous decision by the government not to prosecute, a previous decision that he hadn’t lied, notes indicating they were discussing if the point of the interview was to simply get him in a lie, so they could get him fired, etc. They were ordered by Judge Sullivan to produce this materiel. It is utterly damning to the government’s case.

      5) Flynn plead guilty to avoid having his son be charged. The government had already bankrupted him. They threatened to do the same to his son.

      6) The DOJ applied pressure to Flynn’s lawyers to get him to agree to a plea deal. This was not disclosed to Flynn.

      Those are the facts as they now stand. You make not like General Flynn (I don’t), but this is a pretty terrible situation.

      The government wouldn’t have a prayer of convicting Flynn under any sort of appeal. No judge would convict. No prosecutor who was remotely honest would even file such a flimsy case.

      So, simple question, are you just a partisan hack, or do you actually give a fig about the rule of law? If they can convict Flynn of this, they can convict, you, or me, or anyone, of anything. I don’t want anyone to wield such power, republican or democrat, and I want no one to be subjected to such power, ever, for any reason.

    3. It’s always east for you leftists to use the race card when you disagree with someone. Do you remember the abuse that the FBI engaged in during the Nixon era and the congressional investigation that took place afterward? I do. Accusations of racism is all the left has when a black official is criticized. Grow up and look at the facts. The real racists are on the left-people who engage in violence on campus against conservatives; leftists like DeNiro who encourage assaults against the president. The black caucus Waters, Green and others who are virulently anti-white along with Omar and Tlaib who are anti-semites

    4. Hey mschlack, you don’t seem like a smart guy, you seem like both a poor writer, and clouded thinker.
      Nowhere has Turley ever demonstrated being a toady, to the contrary he was the adult in the room during the Democrat Impeachment Lie Fest. To your point; do you think Jonathan Turley is fond of racists? YOU post here too. Nothing about Turley’s arguments here is “scholastic” in the classic sense, they are simply clear, simple, and factual.

    5. mschlack – Obama’s skin colour is irrelevant, as should Michael Flynn’s skin color be. Many of the very people that want Flynn to rot in jail, would be up in arms if the same miscarriage of justice was perpetrated on a person of color.

      Sadly too many feel that Obama should just be given a free pass
      on anything he says or does wrong because of his skin is of a certain color, that they can not see beyond. I’ve observed that much more prevalent a problem than people who supposedly
      can’t forgive him for being black. It is so condescending in fact IMHO racist towards people of color that you should advocate they should be coddled as you clearly think Obama needs to be.


    Zoe Tillman (Buzzfeed News): “The judge in Michael Flynn’s case issued an order indicating the case isn’t over just yet — he writes that “given the current posture of this case,” he expects people will want to file amicus (friend-of-court) briefs, and he’ll be setting a schedule for that” (the tweet includes an image of Sullivan’s order)

    I’m curious to see the briefs from amici.

  3. Note how the dishonorably lying piece of garbage keeps bringing up the issue of prosecutorial misconduct despite there not being 1 iota of evidence or suggestion to the court that prosecutorial misconduct occurred. The scumbag continues his perfect record of trying to deceive the extremely gullible and spectacularly stupid by simply choosing to bald face lie.

    1. Obama was a missed opportunity for a man of color to shine, do great things for all men and women, and show everyone the great potential we all have. Instead he was a lying sack of crap, he disparaged Americans and opened fire on LEO.

      He really should be investigated for high crimes and misdemeanors, then punished to the fullest extent of the law

    2. 1) Prosecutorial notes to the effect that they were seeking to get Flynn fired or to lie? How is that not “prosecutorial misconduct”? 2) the instigation of the inquiry under the auspices that it was just a friendly chat — with a career military officer who has served his country for 33 years — when there was a clear goal; 3) the preposterous presumption that an incoming NSA making a call to a foreign power during the transition period about the reversal of an only weeks-old Obama era policy by the incoming administration — the presumption that this phone call was nefarious, or the proper subject of FBI review?; 4) the high-level direction of this case to remain open, even after the investigating officers did not believe Flynn had lied; and finally: 5) the refusal of the prosecutors under Brady to turn all this information over to the defense? Little details…

    3. For starters, Flynn was set up by the FBI, try to keep up dumb azz.

    4. To say there is zero evidence of misconduct shows either incredible ignorance or willful lying on your part. take the time to actually read the avalanche of documents being released showing just how far off the rails the FBI and Obama Lackeys had gone.

  4. The old Soviets were masters at blatantly accusing others of doing precisely what they were doing and never backing off from their narrative. Oh. Barack Obama learned that technique oh so well.

  5. Both Obama & Holder were affirmative action scholars. When persons that can’t perform at high levels in school, it’s likely won’t be able to perform at high levels once they graduate.

      1. Wow. you got nothing. Nothing at all. Except straw man arguments, false equivalencies, appeal to emotions, and various other logical fallacies. It must be exhausting to be you!

  6. It’s astonishing to me that Professor Turley would omit the critical factual difference between Stevens and Flynn — namely, that Flynn pleaded guilty. That fact distinguishes all of the cited case law and it’s embarrassing (not to mention dishonest) for Turley to draw any analogies. Obama might have said “charged with perjury” instead of “pleaded guilty”; I’m sure he would own up to the imprecision. It’s clear what he meant. I imagine that eight years of being president could dull his mind to such details.

    1. And you forgot to mention the evidence that prosecutors threatened Flynn’s family, for that guilty plea. Another dishonest Democrat.

      1. When a criminal chooses to bring his family into a criminal conspiracy there is absolutely nothing wrong with including them in the peal bargain negotiations, idiot.

    2. Do you feel like it is the DOJ’s job to deliver justice under any circumstances? Or do you believe they should follow through on sentencing even though there is mounting evidence the prosecution was flawed at best and possibly illegal? Is the job of the Department of Justice justice, or prosecution?

      1. Of course it is the DOJs responsibility to bring justice. That is why this withdrawal is such a farce. Justice is only served by a prison term for the criminal scumbag.

    3. so because flynn pleaded guilty when faced with gestapo type threats to his family, that somehow mitigates the unbelievable depth and level of wrongdoing here. that’s your premise? irrespective of anything else, that is a position that only a true statist could concoct.

      1. Note in federal court, the prosecution is still required to prove beyond a reasonable doubt that all elements of a crime have been satisfied even when a guilty plea is entered. They had no problem achieving that in this case.

    4. His plea was in reliance upon lack of fraud on the part of the FBI. Here the FBI committed fraud on multiple counts: 1.) it was illegal for the FBI to use Flynn’s conversation with the Russian Ambassador as the basis for the false statement charge since Flynn is a U.S. citizen and using it in court illegally unmasks him in violation of his constitutional rights; and 2.) the FBI hid exculpatory evidence including its own admission that it had no case against General Flynn. Accordingly Gen. Flynn’s constitutional rights were violated and the only remedy is to dismiss the case. Gen. Flynn now has a civil action against the individual perpetrators including the prosecutors who participated in the fraud and the FBI agents. He can sue them for treble damages as they put the General on the verge of bankruptcy despite the fact he served his country for 33 years, 5 of which were in a battle zone. The investigators need to be investigated and Americans have a right to know what Obama’s involvement was.

      1. What fraud was committed by the FBI. There was absolutely nothing wrong with the FBI using his statements to the Russian ambassador. 1) As he acknowledge in his interview he was aware that his conversation would be recorded by the NSA. The law requires his unmasking since the import of the conversation cannot be evaluated without knowing his identity.2) The FBI did not have any exculpatory evidence. The FBI’s statements that it had no case occurred before the phone conversation with the Russian ambassadoer so were not relevant or exculpatory. Even the DOJs motion to drop the information does not allege that his constitutional rights were violated. It ridiculously claims that they cannot prove the lies were material, despite the judge having already ruled that the evidence presented to him had proved that.

        1. He was forced to plead to lying under duress to save his son. There was relevant exculpatory information — including that the agents interviewing him did not think he had lied, and their notes about trying to get him fired. Several other things too… Absurd.

    5. He did make mention of prosecutorial misconduct. The guilty plea was no admission of guilt. It was a retreat in the face of a government with unlimited funds bankrupting Flynn and threatening to go after his son next. Kind of like the bribery that the previous administration was accusing Flynn of being vulnerable to with regard to the Russians.

      1. In federal court, a guilty plea is accompanied by a statement by the criminal of exactly how they committed the crime. In federal court, the prosecution still must prove beyond a reasonable about all of the elements of the crime and they rely on the criminals statement to achieve that.

    6. Doesn’t matter that Flynn plead guilty. His confession was essentially coerced. The FBI interview wasn’t done under oath, which is a necessity for perjury. He was not charged with perjury. (See Federal Criminal Resource Manual Sec. 1745). Gee you’d think that uber lawyer Obama would know that.

      1. There is practically no difference between the crimes of lying to federal officials and the crime of perjury.

    7. Flynn withdrew his guilty plea. So, no he did not plead guilty.

      There is no evidence that Flynn lied.

      Where is the original 302?
      Why is the only 302 edited by Stozk and Page months later?
      What was the predicate for the interview?
      Why did Obama order Strozk to keep the Flynn investigation open after it was due to be closed for lack of evidence? Why was it even started?
      Which OBama DOJ member illegally leak Flynns converstion to the press? Why aren’t Obama’s henchman in prison yet?

      1. He has not withdrawn his guilty plea. And even if the court allows him to do that that has no impact on his repeated sworn statements to the judge that he deliberately, knowingly and intentionally lied to the FBI and his description of exactly what those lies were.

    8. And you omit the critical factual difference that Flynn was coerced and blackmailed into his plea with threats to indict his son.

    9. Ben, unless you don’t care about anybody else but yourself, which may be the case (IDK), the government would be able to get you to plead guilty to anything. First they threaten you. Then they either bankrupt you or, in the case of indigence, provide you with a public defendant who reinforces to you the lengths to which the government is willing to go to destroy you. Then the government threatens your family, or friends, or business associates. So, unless you don’t give a damn about anyone, you submit and plead guilty. Which, BTW, was not officially accepted by the Court and which Flynn was trying to withdraw from. He was maintaining his innocence once the corrupt prosecution was exposed.

    10. Again, as you make the same sort of misrepresentations of the magnitude of the abuse of power here:

      1) Prosecutorial notes to the effect that they were seeking to get Flynn fired or to lie? How is that not “prosecutorial misconduct”? 2) the instigation of the inquiry under the auspices that it was just a friendly chat — with a career military officer who has served his country for 33 years — when there was a clear goal; 3) the preposterous presumption that an incoming NSA making a call to a foreign power during the transition period about the reversal of an only weeks-old Obama era policy by the incoming administration — the presumption that this phone call was nefarious, or the proper subject of FBI review?; 4) the high-level direction of this case to remain open, even after the investigating officers did not believe Flynn had lied; and finally: 5) the refusal of the prosecutors under Brady to turn all this information over to the defense? Little details…

      1. Contrary to the deliberate lies spewed by conservative scum, the notes simply said that when asked if Flynn committed a crime, he would either have to confess guilt or lie. The results of either ofthose asctions would be being fired and prosecuted for a crime. And pretending that you don’t suspect a criminal when questioning him is a pretty standard police tactic. Have you never seen the show Colombo. Your allegedly preposterous presumption is indisputably and irrefutably a felony. Flynn is exactly who and what congress wanted to criminalize when they passed the law in 1799 and amended it in 1948 and 1994. Turley’s claim that this is a dead law is a flat out lie as seen by recent formal investigations and legal opinions issued by the DOJ in 1974 and more importantly, the congressional legislative action. When conservative scum say this is normal behavior for republicans, they are admitting that repbulcians routinely engage in felonies. (Again not surprising given Nixon’s sabatoge of the peace talks in 1968, directly leading to 10s of thousands of US military deaths and a much worse peace treaty and the Reagan campaign’s active complicity in keeping 54 US prisoners hostage in Iran in 1980.) The recent memos complete destroy the claim that the investigating FBI agents believed Flynn didn’t lie. The 302 only said that Flynn’s body language didn’t indicate lying, nt the Flynn didn’t lie. The recent memos said that they believed Flynn’s only choices were to lie or confess to a felony. None of the recent memos would be covered by Brady as none contained any exculpatory evidence. So you’re batting 0 for 5 and only revealing how stupid you are.

        1. For a moment I thought you might be a lawyer, now I realize, nope, you just watch a lot of lawyers on TV. Colombo? really?

          So when Flynn said during the interview “you have a transcript of the call” and the FBI acknowledged they had the transcript, what was there for Flynn to lie about exactly? And why exactly were they even interviewing him?

          “he would either have to confess guilt or lie.” Guilt in what regard? The Logan act? No one has ever been prosecuted under the Logan act in more than a century. His “risk” of being so prosecuted was non-existent. If you knew anything about the Logan act, you’d know lots of people get accused of violating it, but no one ever gets charged, and the act is likely unconstitutional to begin with.

          “The 302 only said that Flynn’s body language didn’t indicate lying, not that Flynn didn’t lie.” That is painfully dumb. FBI agents are not lie detectors. But they are trained to read body language regarding suspects. Their impression was that Flynn was not lying is considered evidence if stated by trained investigators. You need to watch more cop shows.

          And the FBI memo that said “‘What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
          That was dated January 24 2017 – the day of the interview.

          Get him to lie or get him fired? Tell me, is it the goal of fair and honest prosecutors and investigators to get defendants to lie so they can prosecute the lie or get him fired? Why exactly was that even being discussed as an option prior to the interview?

          Seems clear the set up was a bogus Logan act prosecution for the sole purpose of getting Flynn caught in a lie, then to prosecute that lie. They didn’t prosecute him for Logan act violations because such a prosecution was preposterous.

    11. Very true – absent a guilty plea by Flynn, this case would have been tossed out like the rotting fish it is. In fact it is the only thing holding Sullivan from doing just that.

      But the argument from Flynn is that his guilty plea was coerced (true, but common in this situation), and that he didn’t have access to competent council (debatable) or the that there was exculpatory evidence the government held back (the killer argument).

      Typically if both the DOJ and the defense want to drop a case with a plea deal, a judge goes along. If the DOJ wanted to refile they could. If convicted, Flynn will certainly win on appeal. Or get pardoned. So nobody loses on this deal if it is dismissed. Except….The house Democrats may well file impeachment charges against Trump/Barr. They are likely that stupid.

      I suspect Sullivan is…setting a trap. He’s made the nearly insane decision for Adam Schiff to file an amicus brief in favor of not dropping the case. This is unusual, and likely, illegal (a private person can’t prosecute a criminal case. In this situation, Schiff would be considered a non-party private person). Given the facts of the case, I expect whatever is filed to be a bad joke there is no way to spin this into an appropriate legal case. Schiff has shown himself to be an incompetent partisan stooge as well. This decision also sets an automatic grounds for appeal, as if Flynn needed another one.

      Sullivan gets the amicus brief and says “well, I’ve afforded progressives every possible opportunity to make a case, but all they gave me was a bunch of partisan blather un-rooted in the law…” he dismisses the case with prejudice.

      It would be very hard at that point to impeach Trump/Barr, because they would also have to explain why Judge Sullivan gave them every opportunity to prove their case in court and they couldn’t. Given Sullivan’s borderline inappropriate hostility toward Flynn throughout the trial, the Democrats would have no where to go.

      Just a theory.

    12. Bill Clinton DID commit perjury and nothing happened to him.
      Bush should have indicted his ass after he left office and started the metoo movements 17 years early since the dems didn’t want too.

  7. All of this stuff keeps coming out, when will there be accountability?

    1. Never. Meet the new boss- same as the old boss. These guys will never hold any big fish accountable, becuase then it would be open season. So we lock up the Scooter Libbys of the world.

  8. many firsts as POTUS for obama
    1st Black potus
    1st Gay potus
    1st Indicted potus

    1. soetoro was half white but almost always played his black race card for votes and to infatuate media. soetoro uses his black for his personal gain; he exploited the hard working God fearing, tax paying black community. BLEXIT.

  9. It must be curious and somewhat surprising for Obama to suddenly find himself in the exact same place as the person who’s life and reputation he actively tried to destroy in order to protect his record of wrongdoing and corruption. Maybe someone should explain the meaning of the term “Karma” to Barrack.

  10. I propose that the former President, rather than speaking of facts, was just acting stupidly.

    1. looking and listening to biden is better example of stupid; soetoro is race card exploiter and Hollywood wanna be

    2. At least President Obama did not allege that there was “not a smidgeon” of wrong doing by Clapper, Comey, Rice, Yates, Strozk, McCabe, Brennan & Co. as was the case with his Lois Lerner dog whistle.

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