Who You Know – What You Know

Michael Flynn is a retired high-ranking military officer. His military service gained him fame which enabled him to create a public relations company that specialized in lobbying the United State government and politicians on behalf of foreign governments and monied individuals and advising those same clients about their relations with the United States. His fame and public image made him attractive to Trump as an advisor during the 2016 campaign. Recall that Trump, who had no experience whatsoever in government, foreign affairs or national security, needed a person such as Flynn to give him credibility on national security and military issues. Trump ultimately appointed Flynn as his national security advisor.

We now know that at the time Trump picked Flynn, Flynn was being paid by and actively working on behalf of Turkey (and probably other foreign governments), but he failed to register as required by law as a foreign agent and he signed government forms in which he lied about his work for Turkey.

After Trump was elected, but before he took office, Flynn had conversations with the Russian Ambassador, Sergey Kislyak, about sanctions President Obama had imposed against Russia for election interference and about an issue involving the United Nations. Flynn’s message to Kislyak was that Russia should not retaliate against the U.S. sanctions because that would make it harder for them to work it out after Trump was inaugurated. Kislyak later reported back to Flynn that he had conveyed “your proposal” to his government and that Russia intended to modify its response because of it. Unbeknownst to Flynn, his conversations with Kislyak were intercepted by U.S. intelligence through a wiretap of Kislyak.

Flynn later lied on two (2) occasions during interviews with the FBI about his conversations with Kislyak.

Trump ultimately fired Flynn, not because he lied to the FBI, but because he had lied to Vice President Pence about the Kislyak conversations.

Flynn was indicted for and charged with making false statements to the FBI. However, Flynn made a deal with the Justice Department. In exchange for his cooperation as a witness, the Justice Department agreed not to charge Flynn with failing to register as a foreign agent, lying on government forms about his work for Turkey, and lying to the FBI about his other conversations with Kislyak concerning the United Nations issue, and to make a favorable sentencing recommendation on the one charge filed against him depending upon his level of cooperation as a witness. Apparently, the impropriety of a named, but not appointed or confirmed, national security adviser discussing a matter of national security with a foreign adversary was not considered a crime in and of itself, but it was highly irregular, inappropriate and calls into serious question the true nature of the relationship between Trump and Russia. Flynn entered a plea of guilty on two (2) separate occasions to the single charge filed against him. Please bear in mind that there is much more to entering a plea of guilty in federal court than simply saying the word “guilty”. The process involves a long admonishment by the judge to make sure the defendant is entering the plea of guilty knowingly, voluntarily, free of duress and coercion, and for the sole reason that he is guilty.  There is also evidence introduced in court, primarily from the defendant himself, out of his own mouth, under oath, confirming that the Defendant (Flynn) did exactly what he is charged with doing. Flynn went through this process twice in open court.  As has been reported previously, Judge Emmet Sullivan thought Flynn’s actions bordered on treason.

A dispute arose later concerning whether Flynn, in fact, fully cooperated with the government in a truthful manner, but his case remained open before the court, i.e., he had twice pleaded guilty, but he had not been formally sentenced. In anticipation of the sentencing, federal prosecutors filed a sentencing recommendation with the Court that pointed out Flynn had not been entirely candid and cooperative, i.e., that Flynn had breached his agreement. This potentially opened the door to Judge Sullivan imposing a harsher sentence.

Flynn fired his lawyers. His new lawyers then sought to withdraw his pleas of guilty.  Judge Emmet Sullivan, did not rule on that request.

Enter William Barr, Trump’s latest Attorney General. Barr is a longtime, loyal Republican insider in Washington legal circles.

Barr took the unprecedented step of ordering Justice Department prosecutors to dismiss the charges against Flynn. If Judge Sullivan granted Barr’s dismissal, the charges against Flynn would vanish and, therefore, it would make no difference whether Judge Sullivan allowed Flynn to withdraw his pleas of guilty.

Judge Sullivan did not take kindly to Barr’s tricky maneuver to free Flynn of criminal liability for his acts. Rather than grant Barr’s Motion to Dismiss, Judge Sullivan appointed John Gleeson, a former federal prosecutor and retired judge, to examine the facts and the law and advise the Court as to what should be done.

Mr. Gleeson filed his 73 page brief on June 10th.

After Judge Sullivan refused to immediately dismiss the charges against Flynn and before Mr. Gleeson filed his brief, Flynn’s lawyers and Barr’s Justice Department petitioned the Court of Appeals for the District of Columbia to require (order) Judge Sullivan to dismiss the case. That Court has not yet ruled.

There is an interesting legal question here: does a prosecuting authority (the Justice Department) have the unfettered right to dismiss charges against a defendant at any stage of a prosecution regardless of the facts publicly admitted by a defendant under oath and regardless of the motivation, or is a judge entitled to exercise his authority and discretion to protect the vital interests of the public in the fair and impartial administration of justice under the law? It is generally assumed by prosecutors that they have the absolute right to make the final decision as to whether to dismiss a case at any stage of a criminal legal proceeding, but Judge Sullivan may challenge that assumption if the Court of Appeals does not order him to grant the Motion to Dismiss before he rules.

Setting aside the legal question, there are important public policy questions concerning whether Barr was right or wrong to ask for dismissal, the truthfulness of Barr’s explanations, and the implications for the impartial administration of the criminal justice system.

Following are excerpts from stories and Mr. Gleeson’s Brief that appeared in the New York Times and Houston Chronicle:

“Marching through other issues raised by Mr. Flynn’s defenders and embraced by the Justice Department, Mr. Gleeson portrayed the arguments as “absurd,” “legally unsound,” “misdirection,” “preposterous” and “empty.”  He said the department’s request was both “riddled with inexplicable and elementary errors of law and fact” and departed from its position in other cases – all evidence, he said, that its rationale for dropping the case was just a pretext.”

“Flynn had lied to multiple incoming White House officials and concealed the true nature of his contacts with the Russian government.’”

“The government may not enlist a court in dismissing a case solely because the defendant is a friend and political ally of the president – and where the ostensible reasons advanced for dismissal amount to a thin an unpersuasive disguise,” Mr. Gleeson wrote.

“He added:  ‘If the executive wishes for the judiciary to dismiss criminal charges – as opposed to issuing a pardon or taking other unilateral action – the reasons it offers must be real and credible. Its professed concerns about materiality are neither.” 

“The Justice Department ‘has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law,’ Mr. Gleeson wrote.  ‘I respectfully suggest that the best response to Flynn’s perjury is not to respond in kind.”

“Gleeson said the department’s intervention was an example of the kind of ‘corrupt, politically motivated dismissals’ that judges have the power to guard against.”

“The reasons offered by the government are so irregular, and so obviously pretextual, that they are deficient,’ Gleeson wrote.  ‘Moreover, the facts surrounding the filing of the government’s motion constitute clear evidence of gross prosecutorial abuse.  They reveal 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.’”

“Pursuant to an active investigation into whether President Trump’s campaign officials coordinated activities with the government of Russia, one of those officials lied to the FBI about co-ordinating activities with the government of Russia,’ Gleeson wrote.  ‘It is hard to conceive of a more material false statement than this one.’”

It seems obvious from the uncontroverted facts and the reasonable deductions and inferences that can be drawn from the facts, that Flynn, Trump, Barr, Flynn’s second team of lawyers and probably other political players have conspired to subvert the criminal justice system for political purposes which are not yet publicly known. For instance, Trump may be fearful that Flynn will fully cooperate, but with Trump loyalist Barr in place as a backstop to vacuum up all the dirt before it is made public, that may not make sense. Or, maybe it’s as simple as Trump paying off Flynn for keeping his mouth shut and following orders like a good soldier. Or, maybe it’s just a part of Trump’s never ending crusade to prove there was no election interference and no “collusion” with the Russians.

We really don’t know all the motives, but we do know there is one and that it is unholy. With Trump, it’s always a mistake to overlook the obvious. He has something to gain or lose personally by all of this.  Whatever the true purpose, it is important enough that Barr was willing to throw away his reputation and that of the Justice Department to achieve it. 

The consequences for the criminal justice system are dire.

Judges, prosecutors, law enforcement officers and lawyers across the nation fight their entire careers to prove that the legal system is fair, that no one is above the law, and that it is not what you know or who you know that will determine who is investigated, charged, prosecuted or how they will be sentenced. This horrid, miserable, blatant example of corrupt political manipulation will be seen for what it is and be remembered by the public far longer than the thousands upon thousands of cases that are handled by the book. It will be all the evidence the cynics and skeptics need to prove the system is rigged in favor of the powerful, wealthy and connected and shake the confidence of everyone else.

There is a tiny bit of good fortune in all this sordid tale. We could have had a national security adviser who was a paid agent of a foreign government; who was so ignorant or naive that he didn’t realize a telephone call with the Russia Ambassador would be or might be wiretapped; and, who was arrogant enough, foolish enough and corrupt enough to think he could get away with lying about it all.