As future historians look back at the Trump years, they likely will conclude that a dominant feature was a massive growth in presidential power, only imperfectly checked by the other branches of government. And they could find a very good illustration of that in the story of Lt. Gen. Michael T. Flynn.
That tangled political and legal tale began in the midst of the 2016 presidential election campaign, months before Donald Trump was elected president, and it hasn’t reached its final point yet even as another election approaches. Though still ongoing, it already has wrapped up in it much of the story of the Trump Administration.
* It includes questions about the legitimacy of the President’s election. Flynn caught the attention of the FBI as it looked into Russia’s interference in the 2016 campaign, with a wiretap picking up his telephone conversations with the Russian ambassador. That started his criminal prosecution.
* It includes the mix of events that led to presidential impeachment. Flynn became one of the familiar faces of the Trump presidential campaign against Hillary Clinton, acting as the cheerleader for the “lock her up” crowd-rousing chant. Later, Candidate Trump himself enlarged the challenge by asking Russia to intervene to get evidence on Clinton’s e-mails. The scenario continued, and brought on impeachment, after President Trump attempted to make it appear that it was Ukraine, not Russia, that interfered in 2016.
* The story also includes the sweeping but ultimately faltering effort of the “Mueller investigation.” That two-year-long probe of the Russia angle led directly to the criminal charge against Flynn, but the durability of his guilty plea is now much in doubt amid the Administration’s ongoing effort to discredit much – if not all — of what Robert Mueller had set out to do. Aside from his own case, and after the close of Mueller’s work, Flynn is in the center of continuing investigations into the FBI’s handling of its Russia probe.
* There is also – so far, it’s in the background of Flynn’s story — the questionable use of presidential pardon power. From the day that Flynn’s criminal case got into the headlines, the prospect of a pardon for him has never faded as the President claimed and repeatedly used that authority to reward friends and settle political scores. A pardon for Flynn still looms, if his criminal case ends badly for him.
* Another facet is the President’s ongoing effort to get the Justice Department to show fervent loyalty to him – an effort that now appears close to success. This is unfolding against a studied effort, now led by Attorney General William Barr, to enhance the power of the President to conduct that office without being checked. It is on this point that the Michael Flynn story may be the best illustration.
Depending upon what happens in the courts in coming weeks, Flynn may either be sentenced to prison (which might well lead to a presidential pardon) or he could be a free man, perhaps even restored to the White House payroll, if not in the job from which he was fired for a crime that he admitted committing.
In short, Michael Flynn is a highly-visible poster figure for the Trump years. And the extent of his role not only requires some sorting out by today’s political and cultural critics, but also will take considerable effort for future historians to dissect and explain.
For now, let’s take just one chapter of the story, and attempt a fairly simple though detailed explanation of it. What follows is a closer look at the criminal case against Flynn, where it stands right now, where it might be going, and its potential to have a larger meaning in American constitutional history.
That chapter begins on August 16, 2016. The FBI opened an investigation of Flynn that day as part of the larger “Crossfire Hurricane” foreign intelligence investigation into whether Russia had interfered in the U.S. election campaign then unfolding. The FBI suspected that he might be acting as a foreign agent.
A few months later, in December, the focus on Flynn intensified after government agents electronically monitored Flynn’s telephone conversations with Russian Ambassador Sergei Kislyak, discussing relations between the two nations. By then, the newly-elected President Trump had chosen Flynn to be his National Security Adviser.
Ultimately, two FBI agents interviewed Flynn at the White House on January 24, 2017, four days after the President’s inauguration. That session – during which, the government says, he lied — has always been at the center of the criminal case against Flynn. It has also been the subject of three official investigations other than the Robert Mueller probe, and just last week, FBI Director Christopher Wray opened a new internal investigation, seeking once more to determine if the Bureau and its officers and agents had acted properly, or not.
Flynn either resigned or was fired by President Trump in February 2017; the stories differ on the facts. The FBI probe of Flynn went on; soon after Flynn left the Administration, the President held a private meeting with then-Director James Comey of the FBI, saying to Comey: “I hope you can let this go.” The investigation did not stop.
In May, as the Russia inquiry proceeded, former FBI Director Robert Mueller was appointed as a special counsel in the Justice Department to investigate the issue of Russian interference in the 2016 election. In November, the answers that Flynn had given to FBI agents ten months earlier formed the basis for one criminal charge, that he had made “false statements” to the agents about his conversations with Kislyak.
With defense lawyers at his side in federal court on December 1, 2017, Flynn pleaded guilty to that crime; that was a result of a plea bargain with prosecutors. He would express his guilt in court a second time, later. But, after dismissing his legal team last year and engaging new lawyers, Flynn began waging an effort to withdraw his guilty plea; he has claimed, among other points, that Mueller had coerced him into pleading guilty by threatening to charge Flynn’s son with a crime and that he was the victim of a trap set up by FBI agents, to trick him into lying.
There has been continuing strife between Flynn and the judge before whom his case has continued in Washington, Federal District Judge Emmet G. Sullivan. Their dealings with each other over two and a half years have created a docket with more than 200 entries. Still, Flynn has not yet been sentenced on his guilty plea.
At one point, the Justice Department urged leniency, saying that Flynn had cooperated well with the ongoing Russian investigation. But, at a hearing on that suggestion, the judge fiercely berated the former general, suggesting that he may have committed “treason” and had sold out his country and disgraced its flag.
The judge’s handling of the case and the actions by Flynn, and more recently by Attorney General Barr and top officials of the Justice Department, have brought it to the place where it now stands.
This past January, Flynn’s new legal team asked Judge Sullivan to allow him to withdraw his guilty plea and to dismiss the charge against him, claiming “egregious government misconduct.” Those requests are still pending before the judge; they have now been overshadowed by developments that have moved the case well beyond the strife between one accused person and one judge, raising profound issues of law and questions of major constitutional importance.
The stakes were raised significantly on May 7, when the leaders of the Justice Department took over the Flynn case from the staff prosecutors who were handling it (leading those prosecutors to quit), and formally asked Judge Sullivan to dismiss the criminal charge. They said their review of the case’s history showed that there was really no legal basis for bringing any charge against Flynn, and that the evidence available showed that they could not win a conviction had they taken the case to a full trial.
For the authority to seek to end the case, the Department leaders relied on two arguments.
First, they cited a federal court rule for criminal cases that allows the dismissal of a criminal charge “with leave of court.” They argued that the role of a court in that instance was “narrow,” and that the rule mainly existed to keep prosecutors from manipulating a case by ending one charge and then pursuing another one. The rule, they added, was not meant to give a court roving authority to delve deeply into the prosecution. A plea to dismiss, they said, should be granted even after a guilty plea.
Second, they added in a sweeping constitutional claim: that government power over when to begin and end criminal prosecution belongs with the President, in his discretion, and with the Executive Branch that he leads. This point is based directly on the language in the Constitution’s Article II, commanding presidents to “take care that the laws be faithfully executed.”
Judge Sullivan, confronting that maneuver, decided to let other independent lawyers or legal organizations enter the Flynn case because, now, Flynn and the prosecution were on the same side, so there ought to be someone to argue in opposition. Sullivan also named a retired federal judge, John Gleeson of New York City, to argue against the Justice Department and to recommend whether Flynn should now be charged with contempt of court for not speaking truthfully when he admitted in court that he was guilty of the charge against him.
Swiftly, last Tuesday, before Sullivan took further action, Flynn’s lawyers went to the next-level court, the U.S. Court of Appeals for the District of Columbia Circuit. They asked that tribunal for two orders: first, to compel Judge Sullivan to dismiss the charges outright and with no chance of filing them anew, and, second, to immediately take the case away from Judge Sullivan and assign it to another District Court judge.
The document read in part: “An innocent man has been the target of a vendetta by politically motivated officials at the highest level of the FBI. The egregious government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently. The district judge’s orders reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the government’s misconduct and threatening him with criminal contempt.”
The Circuit Court has ordered Judge Sullivan to reply by next Sunday, and it invited the Justice Department to file its own response if it wished. Meanwhile, 16 lawyers who served on the prosecution team that handled the Watergate scandal in the Nixon Administration have entered the case to oppose Flynn’s new challenge, while 16 states’ top government lawyers have moved in to support ending the case.
These are the key issues that will now unfold in the Circuit Court, with potentially widespread impact on federal criminal law and on the Constitution:
* How much authority do federal judges have to decide, on their own, whether to drop a criminal charge, and especially after the accused individual has pleaded guilty?
* How does a court choose between the power of a federal judge to impose a sentence after a person has pleaded guilty, and the power of federal prosecutors to drop a case they had begun? That has implications both for criminal law, but also for the Constitution’s separation of powers between the Article II presidency and the Article III courts.
* How much authority does a federal appeals court have to compel a trial judge not to go ahead with sentencing, but instead to drop a case without looking into whether there was been improper conduct among prosecutors?
* How much authority does a federal appeals court have to reach down to the trial level, and substitute a new judge for one whose conduct of a case is challenged?
* Will this case come to an end in the lower courts, or will it move on to the Supreme Court for a final decision?
Those are the issues on the law side of this heated and lengthy controversy. Here are broader questions that this case has stirred up:
* Must the federal courts exercise strong independent judgment when top officials of the Justice Department seize control of a high-profile criminal case in which the President has already tried to intervene and in which the President is personally interested?
* In deciding this controversy, may the courts look behind the legal issues and judge whether the criminal justice process is being manipulated for political purposes?
* Do the courts have any authority to reinforce the independence of the Justice Department in the enforcement of federal criminal law, or must they silently accept an over-arching power of the President to control charging decisions?
* Do the courts have any duty, or any authority, to put an end to a high-profile criminal case in order to spare the President the political accountability for granting a pardon?
* Will President Trump’s repeated public attacks on the federal judiciary make the judges more, or less, willing to protect the prerogative of trial judges – in this case, the basic power to impose punishment for criminal misconduct?
* And, overall, what kind of precedents – legal and constitutional – might the Flynn case generate for the inevitable day when new, high-profile and politically charged cases arise in the future?
America should begin to hear some answers rather soon, as the Flynn story keeps adding on new chapters.