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US Court of Appeals sends Michael Flynn prosecution back to Judge Sullivan

By Laurence Maher - posted Thursday, 17 September 2020

This is a sequel to a recent article on developments in the controversial prosecution of retired US Army General Michael T Flynn who, for a short time in 2016/2017, was President Trump's National Security Adviser.

On 1 December 2017 in the US District Court for the District of Columbia, General Flynn pleaded guilty to one count of lying to the Federal Bureau of Investigation (FBI) on 24 January 2017 during the course of an informal interview by two FBI officials who were part of the investigation by Special Counsel Robert S Mueller III of alleged Russian interference in the 2016 US Presidential election.

The prolonged prosecution collapsed as an inevitable consequence of revelations arising from the Mueller Report, specific findings of FBI misconduct in Reports of the Inspector General of the US Department of Justice, and evidence that General Flynn had been "set up" by anti-Trump elements within the FBI. Relying on that material and alleged prosecutorial misconduct, Flynn applied to the District Court in January 2020 to withdraw his guilty plea. Having concluded that continuing the prosecution would not serve the interests of justice, in May 2020 the US government applied to the Court for the necessary "leave" to dismiss the charge.


The Flynn controversy entered a new phase when District Judge Emmett Sullivan declined to grant leave to the government without conducting a full hearing concerning the government's changed position. Australian lawyers will recognize the principle that in an unopposed case it may (but not necessarily) be conducive to the attainment of justice for a court to have the benefit of argument that might have been advanced if the case was contested. However, Flynn's contention was that Judge Sullivan had usurped the prosecutorial function which, constitutionally, resides solely in the executive branch of government, and that Judge Sullivan wanted the prosecution to continue to ensure that he could sentence Flynn on his guilty plea.

It followed that Judge Sullivan had disqualified himself by conduct which clearly evidences ostensible, if not actual, bias. He had appointed as amicus curiae (friend of the court) - to present arguments in opposition to the application and as to why Flynn should not be held in criminal contempt of court for perjury - a former federal judge who had announced his animus to Flynn in an op-ed column in The New York Times.

The decision of a 2:1 majority of the United States Court of Appeals for the DC Circuit (USCA) ordering Judge Sullivan to grant the government's application was [overruled] by an 8:2 majority order of a full panel of the Circuit judges sending the case back to Judge Sullivan to resume hearing the government's application. The full panel decision was that some elements of Flynn's case did not need to be decided, his complaints about the appointment of the amicus did not call for resolution by the USCA because there were other remedies, the panel majority was not convinced that the long delay in the case had produced any relevant unusual hardship for Flynn, or demonstrated irreparable harm to the constitutional separation of executive and judicial power, and that the principal of judicial restraint required courts to refrain from deciding constitutional questions in advance of the necessity for doing so.

Judge Sullivan's expression of his opinions about Flynn's culpability during a sentencing scheduling hearing in mid-2019 did not, in fact, reach the high standard of conduct so extreme as to display clear inability to render fair judgment. Nor did the judge's personal participation in the USCA proceeding transform him into a "party" in the separate underlying criminal prosecution.

The USCA panel did, however, express its view that when the hearing of the government's application resumes before Judge Sullivan, "we trust and expect the District Court to proceed with appropriate dispatch." In a separate short opinion, one of the majority judges said this:

"Moreover, as its counsel repeatedly stated at oral argument, the district court may well grant the Government's motion to dismiss the case against General Flynn. In fact, it would be highly unusual if it did not, given the Executive's constitutional prerogative to direct and control prosecutions and the district court's limited discretion under Rule 48(a) especially when the defendant supports the Government's motion."


In the shorter of the two dissenting opinions to the full panel decision, Judge Henderson made the following observation:

"But it is the trial judge's conduct since the government's May 2020 motion to dismiss, weighed in light of his earlier conduct, that delivers the coup de grâce to the last shred of the trial judge's appearance of impartiality. In other words, if there was any doubt up to this point whether his conduct gives the appearance of impartiality, that doubt is gone."

One measure of the intensity of the contest between General Flynn's position and the partisan stance of the amicus is to be found in the following passage from the preliminary statement of the latter's Reply Submissions:

"There is clear evidence that the Government's Motion to Dismiss the case against Defendant Michael T Flynn rests on pure pretext. There is clear evidence that this motion reflects a corrupt and politically motivated favor unworthy of our justice system. In the face of all this, the Government makes little effort to refute (or even address) the evidence exposing its abuses-and the arguments it does advance only further undermine its position. Instead, the Government invokes a parade of false formalities that would reduce this Court to a rubber stamp."

Finally, by way of an aside, using the search term "General Michael Flynn" on the ABC News web site at the time this piece was written, the results were conspicuous for the lack of continuous news reporting of General Flynn's case especially his application to change his plea, and the government's dismissal application. This disregard of the contest about alleged abuses of power underpinning the Flynn prosecution is consistent with the national broadcaster's systemic antipathy to the current US administration in blatant disregard of its statutory obligations.

Judge Sullivan has scheduled the resumption of the hearing of the government's application for 29 September next.

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About the Author

L W Maher is a Melbourne barrister with a special interest in defamation and other free speech-related disputes. He has written extensively on Australian Cold War legal history.

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