What’s next in the Flynn case?

The Department of Justice’s motion to dismiss its case against Gen. Flynn doesn’t end the matter. Flynn pleaded guilty and the case is at the sentencing stage. In theory, Judge Sullivan could deny the DOJ’s motion and sentence Flynn.

I say “in theory” because I understand that motions like the DOJ’s are routinely granted. As the DOJ states in its motion to dismiss, “When the Government so moves, the role for courts. . .is ‘narrow’ and circumscribed.” That’s because “decisions to dismiss pending charges. . .lie squarely within the ken of prosecutorial discretion” and “at the core of the Executive’s duty to see to the faithful execution of the laws.” (Citation omitted)

Thus, it would be extraordinary for Judge Sullivan to deny the government’s motion to dismiss its case against Gen. Flynn. But then, this is not your average case and Sullivan has shown he’s not your average judge.

The Washington Post’s editors argue that Sullivan should not dismiss the case against Flynn. Their editorial does not address or acknowledge the legal standard for denying the DOJ’s motion. Instead, it argues the merits of the case against Flynn.

The Post does so in a one-sided and less than fully honest way. The title of the editorial (paper edition) is “A blow to impartial justice.” Yet, the Post doesn’t mention the evidence of prosecutorial misconduct, described in detail in the DOJ’s motion, that underlies the Department’s decision. That evidence shows that Flynn did not receive “impartial justice” from the FBI. In my view, the FBI’s misconduct was so egregious and so plainly motivated by political considerations as to justify dismissing this case in the interest of justice.

The Post also presents a misleading characterization of Flynn’s conversation with the Russian ambassador — the one Flynn was accused of lying to the FBI about. The Post says that Flynn advised the ambassador that Russia “should resist responding to U.S. sanctions on Russia, which the Obama administration had imposed in response to the Kremlin’s 2016 election interference.” It characterizes the conversation as an attempt by Flynn to “coordinat[e] a response to the Obama sanctions. . .”

The word “responding” is vague and the word “coordinate” is misleading. Flynn urged Russia not to retaliate against the U.S. in response to the sanctions. There was nothing wrong with that. America’s interests would be served if Russia did not retaliate.

Nonetheless, if Flynn lied to the FBI about this conversation, and if the alleged lie was “material” under the applicable legal standard, then Flynn committed a crime.

The DOJ’s brief focuses mainly on “materiality.” That’s a complex issue, not well suited for either an editorial or a less than lengthy blog post.

I don’t find the DOJ’s argument on materiality entirely persuasive. I think the DOJ takes too narrow a view of this requirement.

But then, I’m not a criminal lawyer. And even if I were, the call on whether to continue this prosecution would not be mine to make.

Nor, absent truly extraordinary circumstances, should it be Judge Sullivan’s. Disagreement about a point of law is not an extraordinary circumstance.

Judge Sullivan should grant the Department of Justice’s motion to dismiss the case against Michael Flynn.

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