The Mike Flynn Fix Is in, But the Court Proceedings Still Matter. Here’s Why. 1

The Michael Flynn case is playing out like a film noir: We know the crime and that the criminal will get away from the start, and we’re watching to find out how things ended up there. 

If Bill Barr’s Justice Department can’t convince a panel of judges to force Flynn’s trial judge, Emmet Sullivan, to let Flynn withdraw the guilty plea he’d already submitted, and that Sullivan has accepted, Trump will just pardon his former National Security Adviser. One way or the other, Flynn is getting off the hook. 

The question is whether or not Barr’s crew will have to explain why they’re letting an admittedly guilty man walk. 

Friday, Justice Department attorneys argued before a federal appellate court that they shouldn’t have to explain themselves at all, after former federal judge John Gleeson— appointed by Sullivan to argue for the position that the Justice Department abandoned when they walked away from a conviction obtained by Robery Mueller—called the Trump administration’s reversal a “gross abuse of prosecutorial power” and “an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.”

The guilt of Trump’s former national security advisor to the crime of making materially false statements to the FBI regarding his communications with the Russian ambassador in the wake of the 2016 election has only become clearer. Flynn long ago admitted to his culpability under oath; indeed he did so twice. But the government only recently and belatedly released transcripts of the conversations at issue, confirming that Flynn signaled that the incoming Trump administration planned to go easy on the Putin regime, despite the by then publicly disclosed Russian interference in the presidential race on Trump’s behalf.

Yet, long after the court accepted Flynn’s guilty plea, the DOJ filed a motion to dismiss the case in its entirety. In support, the government submitted an extraordinarily disingenuous brief, asserting, based on claims at odds with arguments and allegations the government had advanced for years, that Flynn was innocent. The government also more than suggested, based on the flimsiest of evidence, that Flynn had been the victim of misconduct at the hands of the FBI, and possibly Mueller’s team.

Under the plain terms of the governing rule, the DOJ’s dismissal motion has to be approved by the trial court. To that end, Sullivan appointed Gleeson to provide the court with the benefit of available arguments against the motion (since no party was doing so) and indicated his intention to hold a hearing on the motion.

The DOJ, however, would have none of that; instead, Barr’s team supported Flynn’s petition for the issuance of a “writ of mandamus” by the DC Court of Appeals directing Sullivan to grant DOJ’s dismissal motion without any review or consideration whatsoever, and indeed without even asking how and why Barr came to repudiate the work of his own department’s prosecutors. 

During Friday’s argument, Judge Karen LeCraft Henderson cut to the heart of the matter by asking deputy solicitor general Jeffrey Wall just what sort of prejudice or harm Flynn (who remains out on bail) or the government stand to suffer from allowing Sullivan to rule on the DOJ’s motion. This question is critical, because a writ of mandamus is proper only if the petitioner lacks a proper remedy in the trial court. Here, where Sullivan has yet to even rule on the motion, isn’t the proper remedy simply to follow “regular order and allow” Judge Sullivan do so, Henderson asked.

In response, Wall acknowledged what is really at stake for Barr, and, most importantly, Trump: The risk of public embarrassment. According to Wall, a hearing on the DOJ’s motion would be a “spectacle” and could threaten the “integrity” of the “Executive,” meaning Trump’s presidency. That may be true, but for reasons that should lead the appellate court to deny Flynn’s petition.

As Gleeson demonstrates in his brief, the public record raises serious questions of misconduct, not by the FBI agents and prosecutors who brought the case against Flynn, but rather by Trump’s consigliere, Barr. Gleeson dismantles the government’s motion to dismiss, demonstrating that it is based on pretextual legal and factual arguments, and is infected with open and notorious evidence of prosecutorial abuse. 

The evidence includes Trump’s repeated declaration of his intent to manipulate the justice system in favor of his friend, whom the president describes as the first victim of the vast “Obamagate” “scam.”  After an embarrassing effort by Barr to force line prosecutors to lower the sentencing recommendation for Stone, in what appeared to be response to a Trump tweet, Barr himself acknowledged that Trump’s “public statements and tweets” about pending cases “make it impossible to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.

Friday’s hearing made it crystal clear that the DOJ’s motion to dismiss has almost nothing to do with the fate of Flynn, whom the president could easily save from jail by issuing a pardon; indeed, there is a very substantial question whether Sullivan ultimately has the discretion to deny the motion in any event.

Rather, the extraordinary motion is about Barr’s effort to use the court system as a theater in which to advance Trump’s “deep state” conspiracy theory during the months leading up to the election – and to do so without any pesky interference by a judge seeking to cast light on the government’s motive and purpose. 

During Friday’s appellate argument, Judge Robert Wilkins posed a hypothetical that was particularly apt. What, Wilkins asked, if the DOJ decided to drop a civil rights case against a white police officer charged with beating an African American because it was convinced an all-white jury would not convict him – but failed to disclose the actual reasons for the dismissal request to the court. Would it be improper for the trial court to probe, and ultimately uncover, the actual reasons for the government’s actions? Furthermore, regardless of whether the court ultimately granted the motion, wouldn’t the public interest be served by public disclosure of the government’s motive and purpose? 

Wall said the answer to each of those questions was no, a response that did not appear to satisfy the judge, for obvious reasons.

The same questions apply, with equal force, to the Flynn case. If the DOJ has become the house counsel for a corrupt president and is dropping the charges against a twice admitted felon, not because the case was defective, but because he’s Trump’s guy, the nation should learn that, and before the election, regardless of whether Flynn ends up walking free. 

The end of this movie, after all, will really be in November.