Politico

Judge tosses criminal charge against Flynn following Trump pardon


A federal judge has closed the four-year-old criminal case against former national security adviser Michael Flynn, acknowledging the pardon that President Donald Trump issued last week to the only Trump administration official charged in special counsel Robert Mueller’s investigation of alleged ties between the Trump campaign and Russia.

U.S. District Court Judge Emmet Sullivan — who’d been wrestling for months with a highly unusual request from Attorney General William Barr to drop the prosecution — said Tuesday that bid was rendered moot by Trump’s decision to grant Flynn a sweeping pardon for his alleged lies to the FBI and any other offenses he may have committed in connection with Mueller’s probe.

“The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one,” Sullivan wrote in a 43-page opinion. “Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot.

Although Sullivan ultimately ended the case, he lambasted the Justice Department for what he said was a highly questionable, if not indefensible, decision to drop the charges against Flynn. Sullivan also asserted that judges have the power to reject the dismissal of charges in a criminal case when the government’s actions are called into question.

Sullivan declared that the explanations Barr offered through his deputies for the decision to abandon the case were “dubious to say the least” and would arguably overcome the long-held “presumption of regularity” that government officials are generally afforded by the courts.

Sullivan said many of the rationales offered by the government “appear pretextual, particularly in view of the surrounding circumstances.”

“For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case,” Sullivan said.

Sullivan also noted that Flynn’s attorney, Sidney Powell, had acknowledged conferring with Trump about the status of the case in the weeks preceding a September hearing.

Flynn pleaded guilty in December 2017 to lying to the FBI about his pre-inauguration contacts with Russia’s U.S. ambassador, Sergey Kislyak. After initially cooperating with Mueller, Flynn came before Sullivan for sentencing in late 2018 at a hearing in which Sullivan excoriated the former national security adviser for his conduct. But Sullivan opted against sentencing Flynn immediately, instead giving him a chance to finish his cooperation with prosecutors.

Several months later, Flynn fired his legal team and hired Powell, a firebrand who has since become a key figure in Trump’s attempt to subvert the 2020 election results. With Powell as his attorney, Flynn accused prosecutors and the FBI of “egregious misconduct” and later moved to withdraw his guilty plea. That effort was aided earlier this year when Barr authorized DOJ to drop the case against Flynn, claiming that the initial January 2017 interview where he allegedly lied was not legally justified and that other evidence undermining Flynn’s guilt had just been unearthed.

But rather than quickly dismissing the case, Sullivan pushed back, appointing an outside adviser who urged him to reject DOJ’s motion as a thinly veiled effort to protect an ally of the president who was implicated in the same investigation that threatened Trump. Flynn’s lawyers asked a federal appeals court to step in and shut down the case, but that effort was ultimately unsuccessful.

Sullivan’s consideration of the government’s motion to dismiss the case it filed three years ago was still pending when Trump moved to pardon Flynn last month.

In his ruling Tuesday, Sullivan pointedly cited Supreme Court precedent declaring that accepting a pardon amounts to a “confession” of guilt. The judge also said it did not mean Flynn had committed no crime.

“The pardon ‘does not, standing alone, render [Mr. Flynn] innocent of the alleged violation,’” Sullivan added.

Sullivan noted questions some critics have raised about whether Trump’s pardon sought to rule out future charges against Flynn. While a president can block future charges for past conduct, the pardon power does not permit clemency for future actions.

But the judge said the intricacies of those issues would be left for another day, if they arise.

“The scope of the pardon is extraordinarily broad — it applies not only to the false statements offense to which Mr. Flynn twice pled guilty in this case, but also purports to apply to ‘any and all possible offenses’ that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation,” the judge wrote. “However, the Court need only consider the pardon insofar as it applies to the offense to which Mr. Flynn twice pled guilty in this case.”

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