The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant

President Donald Trump is reportedly considering a pardon for his former National Security Adviser Michael Flynn this week. As someone who has long opposed Trump’s pardons of Trump associates like Roger Stone and  Joe Arpaio, I do not come easily to the idea of pardon for someone like Flynn. However, the strongest case for a pardon for Flynn was not made by his lawyers as much as his judge, the Honorable Emmet Sullivan. Sullivan’s continued controversial actions in the case could be cited as a credible, if not a compelling basis, for a pardon of Flynn.

I have been a long critic of the Flynn prosecution for a variety of reasons. First, Flynn was targeted due to his communications with Russian diplomats shortly before becoming national security adviser. There is nothing untoward, unlawful, or even uncommon in such meetings weeks before a new administration. Nevertheless, former FBI Director James Comey decided to send in agents to interview Flynn without the presence of the White House counsel. Comey later bragged that that he “probably wouldn’t have … gotten away with it” in other administrations, but he sent “a couple guys over” to question Flynn. Former acting Attorney General Sally Yates was irate at the move and described Comey as going “rogue” in the move.

Second, Comey himself reportedly told then President Barack Obama and Vice President Joe Biden that the FBI thought the meetings with the Russians was “legit.” Moreover, at the interview, Flynn stated that he assumed that the agents already had a transcript of the conversations (which they did), and the two FBI agents did not believe that Flynn intentionally lied to them about the details of the conversations.

Third, the effort to criminally charge Flynn had fallen apart by the end of December 2016. On January 4, 2017, the FBI’s Washington Field Office issued a “Closing Communication” that said it was terminating “CROSSFIRE RAZOR” because it found no evidence of criminal conduct. They were prevented from closing the case by fired FBI Special Agent Peter Strzok, who expressed vehement opposition to Trump being elected as president. When the investigation collapsed, White House and FBI officials reportedly debated any other possible way to charge Flynn, including using the Logan Act which is widely viewed as unconstitutional (and has never been used to secure a single conviction against anyone). The Justice Department later charged Flynn and, after draining him of most of his money and threatening his son with prosecution, secured a plea to a single count of lying to federal investigators. (Yes, those same investigators who did not think that Flynn intentionally lied to them).

This barely scratches the surface of the irregular and abusive handling of the Flynn case.  However, while his lawyers made strong arguments in court, that alone would not justify a pardon from a president who has such a close personal and professional relationship with Flynn. Then came Judge Sullivan.

From the outset, Sullivan’s handling of the case was unsettling and irregular. This should have been a simple sentencing on a simple criminal count.  After all, Flynn cooperated with federal prosecutors and even uncooperative witnesses like Alex Van Der Zwaan received only 30 days in prison on a similar charge. However, in his first sentencing hearing, Sullivan blew up the proceedings with a bizarre diatribe. Using the flag in court as a prop, Sullivan falsely accused Flynn of being an “unregistered agent of a foreign country while serving as the national security adviser” who sold his country out. Sullivan even suggested Flynn should have been charged with treason, then suggested he might ignore any recommendations and send Flynn to jail when he declared, “I cannot assure you that if you proceed today, you will not receive a sentence of incarceration. I am not hiding my disgust and my disdain.”

Sullivan apologized for some of his comments, but Flynn wisely waited on sentencing. There would be two more sentencing hearings. Each time, Sullivan lashed out at the Trump Administration and refused to issue a final order. The Justice Department later filed to drop the prosecution entirely. Yet, Sullivan again refused and took the extraordinary step of inviting former judge John Gleeson to argue against dismissal of the case.  As a judge, Gleeson was himself reversed for usurping the role of prosecutors–acting (according to the Second Circuit) in a way that “would be to turn the presumption of regularity on its head.” Sullivan even suggested that he might charge Flynn himself with perjury.

Sullivan’s conduct led a D.C. panel to order him to dismiss the case, in a scathing decision over his handling and the briefing of Gleeson. At the time, I wrote that the panel should be reversed because Sullivan had not issued a final decision. Later the D.C. Circuit reached the same conclusion and, without endorsing the conduct of Sullivan, sent the case back for final decision for Sullivan to do the right thing.

Instead, in September, Sullivan refused again to issue a final ruling and stated that he “still has questions” about the case. Indeed, in the hearing, Sullivan asked about whether a Biden Justice Department might be able to reinstate the case.  It left the troubling appearance that Sullivan was prosecutor shopping, delaying the case until after an expected Biden electoral victory. With a Biden Justice Department, Sullivan still might be able to sentence Flynn.

That leads us to this pardon. The idea of Trump pardoning a former aide still sits badly with me. However, so does the conduct of his judge and the refusal to end this saga. There are no claims in the case that Flynn withheld criminal evidence against Trump. He was charged with lying about something that was not even a crime. We have a case where the prosecutors have declared that there is insufficient evidence for a charge but the judge refuses to let the defendant out of his courtroom after years of delay. Sullivan is continuing to hold on to a case that prosecutors have sought to dismiss since May. There is still no end in sight. That is why the only basis for a pardon in this case that is stronger than the conduct of defendant is the conduct of the judge in the bizarre case of United States v. Michael Flynn.

208 thoughts on “The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant”

  1. Report now that Sidney has also filed in Michigan.

    Perhaps it was a mistake for some folks to make voter fraud so obvious.

      1. Perhaps coup coup plotters shouldn’t have left their fingerprints where everyone can see them across the globe.

    1. LMAO at the typos in that. No court filing markings at the top, good thing she hasn’t actually filed it yet.

        1. If the filer isn’t even attentive enough to correct obvious typos — like “DISTRICCT” and “DISTRCOICT” in the Georgia header or the ones in ¶ 78 of the Michigan suit, which are so obvious at a glance that you don’t even have to read it to see them — I doubt her arguments are any better than her proofreading skills. She misspells her key expert’s name. Definitely the “elite strike force”. We’ll soon find out.

          On the facts and the law, here’s one discussion –
          https://twitter.com/stphnfwlr/status/1331939023988854785

          1. Definitely the “elite strike force”.

            And speaking of “obvious typos.” The end quotation mark goes *outside* the period (even when denoting a scare quote).

            But, once again, such issues are merely a diversion created by those attempting to evade the essential issues.

            1. Whether the end quotation mark goes before or after the period depends on whether you’re a Yank or a Brit, and if you’re a Brit (like me), it further depends on whether the punctuation is part of the quoted material. If I’m writing for publication in America, I make sure to conform to American punctuation rules, but I don’t have to do so on my leisure time.

              Lack of attention to details isn’t a diversion. I also linked to a discussion of the substance.

        2. Sam, do you have a link to the court filing for the GA suit? Posting it to her website is not the same as filing it with the court.

          It would be good for her if she hasn’t filed it, because that would mean that before she actually files it, she can correct the many errors that people have been pointing out.

          You dismiss the typos as “deflection,” but really, it’s astoundingly unprofessional and a sign of incompetence to fail to run a spell-check and grammar-check on a document you’re submitting to the court. Do you think that judges look kindly on that?

          FWIW, some of her typos aren’t spelling errors. For example, in the MI suit (here: https://www.courtlistener.com/docket/18693929/king-v-whitmer/), she refers to “Exh. 101, ‘Ramsland Affidavit,’” when Exhibit 101 isn’t an affidavit from Ramsland and when she refers elsewhere to “Exh. 101, William M. Briggs, Ph.D. ‘An Analysis Regarding Absentee Ballots Across Several States’” and so should know that one of these labels is wrong. How on earth does she fail to check the consistency of the exhibit labelling? Do you think judges look kindly on a lawyer directing them to the wrong exhibit / who cannot keep her own exhibits straight?

          Here’s a long thread discussing many of the legal, factual, and proofreading problems with the MI suit: https://twitter.com/questauthority/status/1331968615713824772

          What a mess it is. I haven’t read all that she submitted, but from what I’ve read/skimmed so far, it’s a lot of hearsay, and no actual evidence of fraud.

  2. My confidence in the judiciary, especially federal, has been steadily declining. Sullivan’s behavior condoned by an en banc Circuit Court was the final straw. The only institution in govt that I remotely trust is the military rank and file. I am not sure I trust senior officers after the Obama purge.

  3. Aarethun is our regular troll with yet another name.

    His suggestion that the U.S. Postal System was held in low esteem ‘before’ Trump’s sabotage is absolutely FALSE.

    According to Pew Research, in this report from April, ‘91% of the public held a Favorable View of the U.S. Post Office’. That was just ‘before’ Trump was told that mail-in votes was bad for reelection.

    Seriously! Trump was told by Republican pollsters at some point last spring that Mail-In Ballots would favor Democrats. That’s when Trump decided to gum-up the works at U.S. Postal Service. ‘Make sure it’s chaotic and totally demoralized’. ‘Make sure the real pros want out really fast’.

    That was Trump’s playbook at every government agency.

    It could take Joe Biden 4 years to repair all the damage Trump inflicted. Biden won’t have time for all the repairs. Trump cynically counts on that. Trumpism is a culture where sabotaging government is cool. That’s how dumb it gets. ‘Actually wanting government staffed by political hacks’. No-nothings rewarded for work on campaigns. Trumpism is a culture of putting hacks in charge. They call is ‘draining the swamp’. ..Ain’t that a laugh..!

    https://www.pewresearch.org/politics/2020/04/09/public-holds-broadly-favorable-views-of-many-federal-agencies-including-cdc-and-hhs/

      1. Typos are their concern? 🤔 Of course to know there are typos is to know what the word is. Does their brain go into vapor lock until they get spelling and punctuation that is correct?

        1. “Typos are their concern?”

          They have created a new legal fallacy: When you can’t pound the facts or the law — pound the typos.

  4. I agree with Professor Turley’s analysis. Perhaps the lifetime appointments for federal judges should be revisited. I have seen some abhorrent behavior in federal courts. The situation here brings to mind that old inquiry: Q: What’s the difference between God and a federal judge? A: God knows that he is not a federal judge.

  5. Flynn should be pardoned. As for Scum Sullivan and some of his fellow Stalinistas commenting here, they’re killing my faith in humanity.

    1. To be sure, “Emmett” is not a judge.

      Judges must be impartial and objective.

      Sullivan’s acts are definitively, demonstrably partial, subjective, unethical and dishonorable.

      This poser is a dutiful sycophant and political hack.

  6. People distrust the judiciary because of corrupt politicized hacks like Sullivan. People don’t trust the Post Office to deliver a piece of mail. We don’t trust big Media. We are being censored by Big Tech, Twitter, FaceBook, Instagram, etc. People no longer trust our elections. Why? Because Democrats and their Fake News Media have corrupted all of it in their pursuit of power at any cost by any means necessary.

    1. The corrupt Postmaster, DeJoy, who created problems at the Post Office, was appointed by Trump, and DeJoy created problems with mail delivery in an effort to make it harder for people to vote by mail. Blame Trump and his pal for your difficulty trusting the Post Office to deliver a piece of mail.

      Trump supporters don’t trust the election because he’s such a baby he can’t accept that he lost legitimately.

      1. Wrong. Becay6 he was not a Communist socialist s d did as Constitutional center asked by exposing them.

        Remarkably easy as the National, International and Regressive Liberal Soclalists exposed themselves.

      2. los remark ND stupid too. The Communist aka democ rat supported it Trump was against it. DN C .truth of the day is always a lie

    2. Anonymous, Trump set out to methodically destroy our institutions. Yet you blame the institutions instead of Trump.

      Take the Post Office, for instance. That was America’s most-trusted institution until a Trump stooge took over last summer and literally went about demolishing the system’s machinery.

      All your points above are essentially an upside-down point of view where the victims are all culprits. And that reflects the perspective of Trump dead-enders.

    3. The Post Office couldn’t deliver 6 Birthday cards this year for me, not one arrived at it’s destination. And we were going to trust them with mail in ballots! There were a lot of us voting who brought our absentee ballots with us and we could vote in person! Will never send a thing in the mail again! I now us Fed Ex to make sure cards arrive to our destination!! Pretty sad!!

  7. As well as the judge, the conduct of the prosecution, FBI + DOJ, justified a pardon as well. You oughtvto have stressed the dozens of items of exculpatory evidence that were only revealed to Flynn because Sullivan misplayed his hand initially.

    Also, regarding Sullivan’s diatribe, it’s since been revealed that his remarks suspiciously resemble a Rachel Maddow soliloquy the prior evening. This judge is a completely despicable pos.

  8. I agree with Turley on this one.
    The best thing for justice in this case is a pardon for Flynn.

    Now that he is pardoned Flynn can appear in Sullivan’s court and explain why he pled guilty to a crime that the FBI agents who interviewed him say he did not commit. The FBI told the world Flynn did not commit a crime but Flynn told the judge that he did.

    https://www.cnn.com/videos/politics/2017/02/16/fbi-michael-flynn-fbi-no-charges-lemon-sot.cnn

    Flynn needs to explain why he helped the Mueller boys bring this fraudulent case into Sullivan’s court.
    The judge deserves an explanation. For years both the defense and the prosecution lied to the judge and now both the prosecution and the defense is telling the judge to never mind and make it all go away. The judge has every right to ask WTF!

    1. Meuller was charged to investigate ”collusion’. Yet collusion is not a crime. His first move should have been to ask for a correction . Yet he did not. He and his group hid behind a lie. For some years and grew rich. In the end he left out some unexplained areas. Never did have to explain why all that time and money to explain why he Investigated a fairy tale nothing

    2. He would be foolish to appear before this partisan hack. Sullivan would find some other insane scheme.

      1. He would be foolish to appear
        __________________________________________
        It sounds like you approve of Flynn assisting the DOJ in covering up the facts of how this fraudulent case appeared in Judge Sullivan’s court.

        Don’t you think the judge is entitled to look into why both the defense and prosecution lied to the court for years?

  9. Sullivan’s court reminds me of Orson Welles “The Trial” based on Kafka’s book, who knew some of the impenetrable bureaucratic mysteries of “justice.” Flynn should have gone first to the Court Portraitist for advice and initial pleadings.

  10. “It is, therefore, with the deepest regret that we have to report that the turnout numbers on Sunday, 30th of July, for the Constituent Assembly in Venezuela were tampered with.”

    1. I haven’t been able to find a copy of the actual pardon yet, so we don’t yet know what crimes Trump has pardoned Flynn for, which has implications for the case before Sullivan and also for whether Flynn might be charged with other crimes later. For example, Flynn was indicted for “Acting as an Unregistered Agent of a Foreign Government,” but that count wasn’t part of his charging document in the plea deal, so potentially he could still be charged with that, depending on what Trump’s pardons says.

      According to Marcy Wheeler, “Flynn lied to protect Trump, making this pardon a crime, per Bill Barr.” (quoting a tweet)
      Two of her columns about it:
      https://www.emptywheel.net/2020/11/19/donald-trump-was-personally-involved-in-flynns-collusion-with-russia-to-protect-israel/
      https://www.emptywheel.net/2020/11/25/even-bill-barr-in-his-confirmation-hearing-agrees-that-trump-just-obstructed-justice/
      I’m not sure that I buy her argument, and we’d have to see whether the DOJ decides to explore it once Trump is out of office.

          1. She’s a cherry-picking, lying by omission, partisan fraud. Her worldview of our justice system has a blind spot for actual justice.

  11. Flynn lie the then FBI and was prosecuted under the same conditions that many other get convicted for. If you don’t the tactics that the FBI used, that is fine because they were horrible, but if you support Flynn but don’t want the law changed foe everyone else then you can STFU.

    1. Read the call transcript. Read the charging document. General Flynn did not lie to the FBI!!!!!!! Show me the LIE!!!!!

      1. A reminder that Trump said “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies.”

        The alleged false statements made by Flynn were to the FBI in the January 24, 2017, interview, so they’re not going to show up in the call transcript itself.

        You can read the charging document and the statement of the offense (here: https://www.lawfareblog.com/michael-flynn-plea-agreement-documents ) to see the false statements he was charged with making, and you can compare the 302 from the FBI interview (Exhibit 6 here: https://assets.documentcloud.org/documents/6883959/Flynn-Govt-Motion-to-Dismiss.pdf ) to the call transcripts to see that a number of statements he made to the FBI (per the 302) do not correspond to what he said in the calls. He wasn’t even charged with all of the false statements they could have charged. Keep in mind that they didn’t release all of the call transcripts and they also didn’t release the 302s from all of Flynn’s FBI/SCO interviews.

        1. CTHD–“A reminder that Trump said “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies.”

          ***

          Yes, Trump did say something like that and he said it because he was lied to by others. This president has been very poorly served by the professional bureaucrat class in government. That had a duty to deal with him honestly and with their best efforts–that or quit–and they failed in that duty.

          They deserve to end up working at the grill in McDonald’s but they are such human trash I would never eat a Big Mac again if they were. Can’t trust them with any task.

Leave a Reply