WASHINGTON — Judge Emmet G. Sullivan, who is presiding over the case against President Trump’s former national security adviser Michael T. Flynn, has appointed a former mafia prosecutor and retired federal judge, John Gleeson, to argue against Attorney General William P. Barr’s attempt to drop the case.
The case against Mr. Flynn was developed by the F.B.I. agents working on the Trump-Russia investigation, brought by the office of the former special counsel, Robert S. Mueller III, and is now being attacked by Mr. Barr as illegitimate. It has raised a complex stew of issues for Judge Sullivan to sort through.
What did Mr. Flynn plead guilty to doing?
He admitted making false statements when F.B.I. agents interviewed him on Jan. 24, 2017, about his calls with the Russian ambassador weeks earlier during the presidential transition, when he was still a private citizen.
Mr. Flynn denied asking Russia not to retaliate for sanctions imposed by then-President Barack Obama to punish Moscow’s covert intervention in the election to help Mr. Trump. He also denied asking Russia to derail a United Nations resolution condemning Israeli settlement building, which Mr. Obama had decided not to block. He later admitted those denials were lies.
He also admitted lying on a Justice Department lobbying disclosure form about paid work he had done that helped the Turkish government’s lobbying of the United States to extradite an exiled political opponent of President Recep Tayyip Erdogan. As part of the plea deal, prosecutors agreed not to charge him over that matter.
Is Mr. Barr’s attempt to drop the case unusual?
Highly unusual. Legal experts have struggled to identify any precedent for the Justice Department dropping such a case after obtaining a guilty plea, and more than 2,300 department veterans accused Mr. Barr in an open letter of subverting a justice system that is supposed to treat everyone equally.
“I would be astonished if the Department of Justice made these arguments in any other case in the country,” said Nancy Gertner, a former federal judge who now teaches at Harvard Law School. “This is the Flynn rule.”
What has Judge Sullivan asked Mr. Gleeson to do?
Present arguments against the Justice Department’s motion to drop the case.
This week, Mr. Gleeson helped write an opinion article about Mr. Barr’s intervention that argued that a court should not blindly approve an attempt by prosecutors “to dismiss a well-founded prosecution for impermissible or corrupt reasons.”
Judge Sullivan has also asked him to evaluate whether Mr. Flynn committed perjury and should be held in contempt of court.
How might Mr. Flynn have committed perjury?
Mr. Flynn has said under oath multiple times — and signed a statement under penalty of perjury — that he knowingly lied to the F.B.I. agents. When he pleaded guilty in a 2018 hearing, Judge Sullivan questioned him at length about his actions, warning him “any false answers will get you in more trouble.”
The judge delayed sentencing Mr. Flynn to give him more time to cooperate with the prosecution of his former business partner and put himself in the best possible light. But Mr. Flynn later stopped cooperating, changed lawyers and sought to withdraw his guilty plea.
In a sworn declaration in January, he claimed that he “did not lie to the agents” and that he had not remembered the details of his phone calls with the ambassador. He said he pleaded guilty only because his former lawyers had advised him to and he feared the consequences if he insisted he was innocent.
What would it mean if the judge found Mr. Flynn in contempt?
Contempt of court can be a crime. Under a Federal Rule of Criminal Procedure, federal judges — without the involvement of the Justice Department prosecutors — may fine or imprison people who misbehave in court in a way that impedes the administration of justice.
Judge Sullivan appears to be contemplating deeming Mr. Flynn’s contradictory statements to him while under oath as such misconduct. That would be highly unusual, some legal experts said, but probably in his discretion.
What is Mr. Barr’s argument for dropping the case?
The Justice Department claims that there was no legitimate investigation to justify the F.B.I.’s interview of Mr. Flynn, so his lies — if they were lies — were not “material” ones and thus did not constitute a crime.
In support of that argument, the department has pointed to the fact that before the issue of his phone calls with the Russian ambassador arose and agents questioned him, the F.B.I. had decided to close a counterintelligence inquiry into Mr. Flynn because investigators had found no evidence that he was conspiring with the Russians.
The F.B.I. had not completed the bureaucratic process of closing the inquiry, however. Essentially, the accusation is that the investigation into Mr. Flynn was no longer valid, but the bureau used it as a pretext to interview him, rendering his lies to the agents irrelevant.
Why is that theory disputed?
First, because even if the investigation into Mr. Flynn had been closed out, his phone calls with the Russian ambassador — and his unexplained pattern of lying about them to White House colleagues, including Vice President Mike Pence — was new information that the F.B.I. could arguably have cited to reopen it and investigate him further.
More broadly, Crossfire Hurricane — the F.B.I.’s overarching counterintelligence investigation into Russia’s covert efforts to help Mr. Trump win the election and the nature of any ties to his campaign — was still active and arguably provided an independent basis to question him.
Do protocol irregularities around the interview matter?
Probably not legally, but they make James B. Comey, then the F.B.I. director, look bad.
Mr. Comey unilaterally dispatched agents to question Mr. Flynn in the middle of unresolved deliberations with the acting attorney general, Sally Q. Yates, about whether they should instead first notify the White House, according to F.B.I. files. The move angered Ms. Yates and other department officials.
Mr. Comey also later acknowledged that the fact that agents did not go through White House lawyers to speak to Mr. Flynn was “something I probably wouldn’t have done or gotten away with” in a more “organized administration.”
But as a legal matter, a deviation from normal bureaucratic etiquette does not get defendants off the hook, criminal law experts said.
Did the F.B.I. set out to see whether Mr. Flynn would lie?
There are reasons to believe agents did so — raising the question of whether that would be an abuse, as Mr. Flynn’s supporters maintain, or a normal investigative step.
In handwritten notes before a brainstorming session about how to question Mr. Flynn, William Priestap, the F.B.I.’s counterintelligence chief at the time, wrote: “What’s our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?” An F.B.I. official setting up the meeting discouraged Mr. Flynn from involving White House lawyers, and the agents did not remind Mr. Flynn that it would be a crime to lie to them before asking him about the calls.
Mr. Flynn’s defense lawyer has accused the F.B.I. of setting up her client. Mr. Barr has declared that investigators were trying to “lay a perjury trap.” But many legal experts said the F.B.I. complied with the rules surrounding voluntary interviews and treated Mr. Flynn no differently than they do many investigative subjects.
Former law enforcement officials said it is standard for the F.B.I. to approach someone who has been telling lies relevant to an investigation to see what they will say.
Hundreds of people every year are charged and convicted of lying to federal authorities, and in the courtroom, entrapment defenses rarely work. Ronald S. Sullivan Jr., a former federal defense lawyer who teaches criminal law at Harvard Law School, said that he objected to the way the F.B.I. treated criminal suspects, but that if Mr. Flynn’s case was tossed out on that basis, legions of other cases should be, too.
“The F.B.I. did what the F.B.I. normally does,” he said. “General Flynn is getting a form of special justice that is repugnant to the very foundation on which our justice system rests.”
Did the Justice Department wrongly withhold evidence from Mr. Flynn?
This is another open question.
Prosecutors generally must turn over information the government has that is favorable to the defense, such as facts that could be used to argue that a defendant is not guilty of the offense. Judge Sullivan requires the Justice Department to do so even if a defendant pleads guilty rather than going to trial.
Supporters of Mr. Flynn have pointed in particular to the notes by Mr. Priestap as this sort of evidence. (Mr. Priestap says his notes were misinterpreted.) The Justice Department only recently handed them over to the defense, after Mr. Barr assigned an outside prosecutor to review the entire prosecution. Some former law enforcement officials disagree that the notes meet that standard, however.
What is the government asking for?
The Justice Department has asked Judge Sullivan to dismiss the case “with prejudice,” meaning the charges could not be refiled. If the judge dismissed the case “without prejudice,” Mr. Flynn could theoretically be recharged later — say, if there is a new administration in January 2021.
Either way, the department is arguing that Judge Sullivan has little choice but to drop the case. A 2016 opinion by the Court of Appeals for the District of Columbia Circuit, which oversee his district, said that the judiciary “generally lacks authority to second-guess” executive branch decisions about whether to charge or drop a case.
Didn’t an Obama-era general get off, too?
Yes, but it was through a presidential pardon.
Shortly before leaving office in 2017, Mr. Obama pardoned James E. Cartwright, a retired Marine Corps general and former vice chairman of the Joint Chiefs of Staff. He had pleaded guilty to lying to the F.B.I. about his discussions with reporters about Iran’s nuclear program.
The Constitution permits presidents to shield people from the consequences of their crimes. But pardons are openly political acts for which accountability is publicly lodged with the president, not contortions of the regular criminal justice system.
Source: Elections - nytimes.com
