President Donald Trump is reportedly considering a pardon for his former National Security Advisor Michael Flynn this week. As someone who has long spoken out against Trump’s pardoning Trump employees like Roger Stone and Joe Arpaio, it is not easy for me to excuse someone like Flynn. The strongest argument in favor of a pardon for Flynn, however, was not made as much by his attorneys as it was by his judge, the Honorable Emmet Sullivan. Sullivan’s continued controversial actions in this case could be cited as a credible, if not compelling, basis for a pardon for Flynn.
I have been a long critic of the Flynn indictment for a number of reasons. First, Flynn was targeted for his communications with Russian diplomats shortly before his appointment as national security advisor. There is nothing unusual, illegal, or even unusual in such meetings weeks before a new administration. Even so, former FBI director James Comey decided to send agents to interview Flynn without the White House attorney’s presence. Comey later boasted that in other administrations he “probably couldn’t … get away with it,” but he “sent a few people over” to question Flynn. Former Acting Attorney General Sally Yates was furious with the move and described Comey as a “villain” in the move.
Second, Comey himself told then-President Barack Obama and Vice-President Joe Biden that the FBI thought the meetings with the Russians were “legitimate”. Additionally, Flynn stated in the interview that he assumed the agents already had a transcript of the conversations (which they did), and the two FBI agents did not believe Flynn had deliberately lied to them about the details of the conversations .
Third, efforts to prosecute Flynn had failed by late December 2016. On January 4, 2017, the FBI’s Washington State Office issued a “closing notice” stating that it would end “CROSSFIRE RAZOR” because it found no evidence of criminal behavior. They were prevented from closing the case by the fired FBI special agent Peter Strzok, who was vehemently against Trump’s election as president. When the investigation collapsed, White House and FBI officials reportedly discussed another way to indict Flynn, including using Logan’s Law, which is widely viewed as unconstitutional (and has never been used to impose a single conviction against anyone effect). The Justice Department later charged Flynn and, after stealing most of his money and threatening his son with prosecution, a plea for a single count of lies against federal investigators. (Yeah, the same investigators who didn’t believe Flynn deliberately lied to them).
This hardly scratches the surface of the irregular and abusive handling of the Flynn case. While his attorneys made strong arguments in court, that alone would not warrant a pardon for a president who has such a close personal and professional relationship with Flynn. Then Judge Sullivan came along.
From the start, Sullivan’s handling of the case was troubling and erratic. This should have been a simple conviction for a simple criminal count. After all, Flynn cooperated with federal attorneys and even uncooperative witnesses like Alex Van Der Zwaan, who were only in jail for 30 days on a similar charge. However, in his first trial, Sullivan blew the case up with a bizarre shame. Using the flag as a prop in court, Sullivan falsely accused Flynn of “being an unregistered agent of a foreign country while acting as a national security advisor” selling out his country. Sullivan even suggested that Flynn should have been charged with high treason, then suggested that he could ignore any recommendations and send Flynn to jail when he stated, “I cannot assure you that if you continue today you will not be sentenced to prison receive. I do not hide my disgust and contempt. “
Sullivan apologized for some of his comments, but Flynn wisely waited for conviction. There would be two more trials. Each time Sullivan hit the Trump administration and refused to issue a final order. The Justice Department later filed to stop law enforcement entirely. Still, Sullivan refused again and took the extraordinary step of inviting former Judge John Gleeson to argue against the dismissal of the case. As a judge, Gleeson himself reversed because he had usurped the role of prosecutor (according to the second circuit) to “turn the presumption of regularity on its head”. Sullivan even suggested that he himself could charge Flynn with perjury.
Sullivan’s behavior prompted a DC panel to order him to dismiss the case in a damning decision on his treatment and the briefing of Gleeson. At the time, I wrote that the panel should be rolled back because Sullivan hadn’t made a final decision. Later, the DC Circuit came to the same conclusion and, without endorsing Sullivan’s conduct, sent the case back for a final decision, for Sullivan to do the right thing.
Instead, Sullivan again refused to make a final decision in September, stating that he “still had questions” about the case. At the hearing, Sullivan asked if a Justice Department in Biden might be able to reopen the case. It left the unsettling appearance that Sullivan was a prosecutor and delayed the case until after an expected election victory in Biden. With a Justice Department in Biden, Sullivan could potentially still convict Flynn.
That leads us to this forgiveness. The idea of Trump pardoning a former aide still doesn’t suit me well. However, this also applies to the behavior of his judge and the refusal to end this saga. There are no claims in the event that Flynn withheld criminal evidence against Trump. He was accused of lying about something that wasn’t even a crime. We have a case where the prosecutor has stated that there is insufficient evidence to support a charge, but the judge refuses to let the defendant out of his courtroom after years of delay. Sullivan remains on a case that prosecutors have been trying to dismiss since May. There is no end in sight. For this reason, the only basis for a pardon in this case that is stronger than the defendant’s behavior is the judge’s behavior in the bizarre United States case against Michael Flynn.