DOJ Drops Charges Against Former National Security Advisor Michael Flynn

On Thursday, May 7, the U.S. Department of Justice requested the dismissal of its criminal case against Michael T. Flynn, President Trump’s first national security adviser. The move came after Flynn had twice pleaded guilty to charges of lying to the Federal Bureau of Investigation about his conversations with a Russian diplomat during the presidential transition in late 2016. Here, Stanford Law Professor David Sklansky, a former federal prosecutor, discusses the charges against Flynn and the Justice Department’s case. (Update: On May 12, Judge Emmet Sullivan of the United States District Court for the District of Columbia appointed a former judge and federal prosecutor, Ralph Gleason, to argue as amicus curiae against the proposed dismissal of the Flynn prosecution, and also to address whether Flynn should be held in criminal attempt for perjury.)

Can you remind us of the charges against Flynn?

Flynn pleaded guilty two and half years ago to one count of violating 18 U.S.C. § 1001, which makes it a felony to make material false statements to federal investigators. In Flynn’s case, the false statements had to do with conversations he had in December 2016 with the then-Russian Ambassador to the United States, Sergey Kislyak. At the time Flynn was a member of President-Elect Donald Trump’s Transition Team, and in that capacity he asked Russia, through Kislyak, to moderate its response to sanctions that the Obama Administration had just imposed, and not to support a resolution that Egypt had submitted to the United Nations Security Council on the issue of Israeli settlements. Soon thereafter, Kislyak told Flynn that Russia would comply with both of these requests.

Stanford Law Professor David Sklansky

The FBI questioned Flynn about these conversations in late January 2017, after President Trump had been sworn into office and Flynn had become his National Security Advisor. Flynn told the FBI that he had not requested through Kislyak that Russia moderate its response to the sanctions, and that he had not requested that Russia refrain from supporting the Egyptian resolution.  Flynn also told the FBI agents that he did not recall Kislyak telling him that Russia would, in fact, moderate its response to the sanctions.

At the end of November 2017, Flynn entered into a plea agreement with the office of Special Counsel Robert Mueller.  Pursuant to that agreement, Flynn pleaded guilty to a single count of violating 18 U.S.C. § 1001, and he admitted that what he had told the FBI the previous January had been false.

Did the Justice Department have a strong case?

Yes. Flynn’s calls with Kislyak were monitored by U.S. intelligence, so there’s a record of what was actually said.  When Sally Yates, the Acting Attorney General, learned about the discrepancy between what the intercepts revealed and what Flynn had told the FBI, she met in person with then-White House Counsel Donald McGann to warn him that Flynn’s deception made him vulnerable to blackmail by the Russians. Soon thereafter, Flynn resigned as National Security Advisor.  President Trump explained, “I had to fire General Flynn because he lied to the vice president and the F.B.I.”  (Vice President Pence had said on national television that Flynn’s December 2016 conversations with Kislyak had not involved the issue of sanctions.)

Was Flynn facing other criminal charges when he pleaded guilty?

Possibly. He was also being investigated in connection with work he did in 2016 to advance the interests of the government of Turkey. He was paid more than half a million dollars for that work but failed to register as a foreign agent.  When Flynn entered into his plea agreement with Mueller’s office, he admitted that he had filed disclosure forms with the Department of Justice that hid the full nature of his involvement with Turkey.

If Flynn pleaded guilty in December 2017, why is the case still pending?

Flynn appeared in court for sentencing in December 2018.  He repeated his guilty plea, but then asked to have his sentencing postponed so that he could continue to cooperate with federal investigators.  The judge presiding over the case—U.S. District Judge Emmet Sullivan—agreed to that.  In 2019, Flynn changed lawyers, and then moved to have the case against him dismissed on grounds of unethical conduct by the government. He claimed that the FBI had treated him unfairly when they questioned him in 2017, and that prosecutors had failed to give him information he requested about the circumstances leading up to that interview.  Last December, Judge Sullivan rejected all of those arguments in a 92-page ruling.  He set Flynn’s sentencing for January 28.  In January, though, Flynn asked to withdraw his guilty plea, and that led the sentencing to be further postponed.  Then, in February, Attorney General William Barr asked an outside prosecutor—Jeff Jensen, the U.S. Attorney for the Eastern District of Missouri—to review the case against Flynn.

What rationale did the DOJ give for dropping the charges against Flynn, and do you think the step was justified?

The brief the Justice Department filed in court on Thursday said that Flynn couldn’t be convicted of violating 18 U.S.C. § 1001, because his misrepresentations to the FBI weren’t “material.”  And the reason they weren’t material, the brief said, is because the FBI wasn’t carrying out a legitimate investigation:  there wasn’t any basis for suspecting Flynn of criminal wrongdoing, and the FBI wasn’t proceeding in good faith.

The evidence of bad faith on the part of the FBI is quite weak in my view.  More importantly, though, these wouldn’t constitute a defense to a charge under section 1001 even if it were true.  The same can be said of the claim that the FBI lacked grounds for suspecting Flynn of wrongdoing.  So, no, I don’t think the DOJ had good reason to ask for the case to be dismissed.  Neither, apparently, did the career prosecutors at the DOJ.  Brandon Von Grack, who was leading the Flynn prosecution, withdrew from the case on Thursday, and the government’s brief was signed only by Timothy Shea, who became U.S. Attorney for the District of Columbia this past January.

How unusual is it to drop charges in this way?  And does Judge Sullivan have to accept the Justice Department’s reversal of course?

It’s highly, highly unusual.  I can’t think of another example of the government asking to have charges dropped after a defendant has already pleaded guilty—let alone after the defendant has pleaded guilty twice—and complaints about unfair treatment have been roundly rejected by the trial judge.

Ordinarily, a trial judge has to defer to the decisions of the Executive Branch about whether to continue a prosecution.  But the law gives the judge the authority to refuse to dismiss the charges if the dismissal is the government acting in bad faith, or if dismissal would be manifestly contrary to the public interest.  Alternatively, Judge Sullivan could agree to dismissal of the case, but not to dismissal with prejudice:  he could dismiss the case without prejudice to a later refiling.  Either way, this would be an extraordinary step for the judge to take, but these are extraordinary circumstances.  Attorney General Barr’s handling of this case reinforces the complaints, already widespread, that he is threatening the rule of law by allowing partisan considerations to entirely displace impartial professionalism at the Department of Justice.

David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Directory of the Stanford Criminal Justice Center. He is the author of Democracy and the Police (Stanford University Press 2008), and he writes regularly about criminal procedure and law enforcement. He has joined an open letter from former DOJ employees protesting the reversal of course in the Flynn case and calling on Attorney General Barr to step down.