There’s been a great deal of discussion over the past couple of weeks about whether Judge Emmett Sullivan should, must, or cannot grant the Department of Justice’s recent motion to dismiss the single-count criminal information against Michael Flynn. Flynn pleaded guilty—twice—for knowingly and willfully making materially false statements to the FBI in a January 24, 2017 interview, in violation of 18 U.S.C. § 1001(a)(2). All that remains of the case before judgment is entered against Flynn is for the judge to impose a sentence.
Flynn’s lies to the FBI in his January 24, 2017 interview were indefensible. In the course of the Flynn “affair,” however, several officials—including but hardly limited to Flynn himself—have done far more disturbing and damaging things. Many other actors, by contrast, have acted appropriately and in the national interest. Unfortunately, just as with the public’s anticipation of and reaction to the Mueller investigation, the inordinate focus on whether a particular individual committed one or another offense under the U.S. criminal code is diverting attention from where it ought to be, on much more significant matters of constitutional governance.
Most importantly, as I’ll explain, what’s most alarming and troubling about the DOJ brief itself is not that it asks the court for leave to dismiss the charge against Flynn, but that it depends upon the rather shocking view of the Attorney General and the Acting U.S. Attorney for the District of Columbia that Flynn’s underlying conduct in 2016 and 2017 was unobjectionable and that therefore there wasn’t a “legitimate” basis for the FBI to be investigating Flynn’s secret communications with the Russian Ambassador at all, even though Russia had just completed an elaborate effort to manipulate the American electoral process in order to help elect Donald Trump.
What follows is an effort to identify and evaluate many of the most important aspects of the Flynn affair, roughly in chronological order from the Summer of 2016 to today.
- Flynn’s Unsuitability to be National Security Advisor
- The FBI’s Decision to Open an Investigation on Flynn (“Crossfire Razor”) in August 2016—and the Proposal to Close it Early in 2017
- The Kislyak Calls
- Flynn’s Coordination With the Trump Transition Team, and the Role of President-Elect Trump Himself
- The FBI’s Decision to Keep its Counterintelligence Investigation of Flynn Open in Light of the Kislyak Calls—and Flynn’s Subsequent Lies to Pence and Others About the December 29 Call
- President Obama’s Reaction
- What About “Unmasking” Flynn’s Identity?
- The Leak to David Ignatius
- Jim Comey’s Authorization for the FBI to Interview Flynn Before DOJ Informed the Trump White House Counsel About the Kislyak Calls
- The FBI’s Strategy and Objectives in its January 24 FBI Interview with Flynn
- Flynn’s Knowing and Willful False Statements During the January 24 Interview
- What Acting Attorney General Yates and White House Counsel McGahn Did After the January 24 Interview
- The February Leak(s) to the Washington Post
- Trump’s Effort to Shake Down Comey
- Trump’s Effort to Induce McFarland to Exonerate Him
- The Mueller Team’s Treatment of the Flynn Case (Including Flynn’s FARA Violations)—and Its Decision to Charge Him with a Violation of Section 1001
- DOJ’s New Arguments for Dismissing the Charge Against Flynn
- What Can and Should Judge Sullivan Do Now?
Rule 48(a) of the Federal Rules of Criminal Procedure provides that “[t]he government may, with leave of court, dismiss an . . . information.” The DOJ motion asks Judge Sullivan for the required “leave of court.”