The Michael Flynn prosecution, the law and politics

Prior to the inauguration of the 45th President of the United States of America on 20 January 2017 and throughout his Presidency, the "Russiagate" conspiracy/collusion theory - that the Trump Presidential Campaign conspired/colluded with alleged Russian Government interference in the 2016 Presidential Election - has been a fixation of an array of forces which neither foresaw nor accepted the election result.

Apart from what they regard as the obvious inherent absurdity of that conspiracy theory, Trump's supporters - especially the one-half of whom are in "the basket of deplorables" as the Democrat candidate scornfully labelled them - point to what they regard as the hysterical hatred of Trump inside and outside his administration as the root cause of the treatment of General Michael T Flynn (Ret) whose appointment as the new President's National Security Adviser ended abruptly as explained by Flynn in his resignation letter on 13 February 2017.

Flynn's resignation arose from an informal interview which he had on 24 January 2017 in his White House office with two officials of the Federal Bureau of Investigation (FBI), Peter Strzok and Lisa Page, concerning Flynn's dealings with the Russian Ambassador to the US during the transition period following the 2016 Presidential Election.

On 1 December 2017, in accordance with a plea agreement with the US Department of Justice (DOJ) signed the previous day, General Flynn pleaded guilty in the US District Court for the District of Columbia to one count of wilfully and knowingly making two materially false statements and omissions in the Strzok/Page interview, and agreed to co-operate with the DOJ in connection with a related prosecution.

The Trump Presidency will soon end. How is it that the Flynn prosecution, considered on this site here and here is still pending? The table in the former piece can be amended by the addition of the following entries.

The Flynn prosecution has evolved into a highly unusual (perhaps unique) contest.

On one side the DOJ, after review, considers that continuing the prosecution would not serve the interests of justice. Not surprisingly, General Flynn supports that application, and contends that the prosecution's ongoing disclosures of exculpatory evidence supports his case that he was "set up" for prosecution in the Strzok/Page interview.

On the other (pro-sentencing) side, there is the combination of Judge Sullivan and former US District Court judge John Gleeson who voiced his emphatic personal anti-Flynn position in The Washington Post two days before Sullivan appointed him as amicus curiae to present arguments in opposition to the Government, and addressing the question whether the Court should require General Flynn to show cause why he should not be held in criminal contempt of court for perjury.

Judge Sullivan had first indicated his negative attitude to General Flynn's conduct during the sentencing colloquy the judge conducted on 18 December 2018, and in his long memorandum opinion handed down on 16 December 2019 rejecting Flynn's applications for further disclosures of exculpatory material.

General Flynn's case is that there can be no doubt in the mind of the reasonable observer about Judge Sullivan's bias (ostensible and actual) in his determination to sentence Flynn. It is evidenced in the judge's response to the 2:1 majority decision of the Court of Appeals on 24 June 2020, his personal petition to the Circuit Court en banc to reconsider the majority decision, in his engagement of lawyers to represent him personally at the en banc hearing on 11 August, and in his ongoing slow response to the en banc 8:2 majority panel decision handed down on 31 August overturning the 2:1 majority decision.

For reasons stated in that decision, the Court did not accept that Judge Sullivan's filing of a petition for rehearing en banc suggested a level of partiality justifying the reassignment of the Flynn case to another judge.

In this world of "globalisation", the top tiers of the legal profession operate across national boundaries. There are Australian lawyers (not including this one) who are admitted to practise law in one or more courts in the United States. However, you do not have to be in that limited category to recognize that the broad principles governing the resolution of judicial bias controversies (ostensible and actual) in the US federal court system resemble those which apply in Australia.

There is, however, a striking contrast in the application of those principles to any given case, in the language in which legal arguments are advanced in the two nations, and, it seems, in the role of an amicus curiae.

There is, for example, a conceptual distinction between, on the one hand, an amicus laying out the relevant law and factual material and the arguments that might have been made on the other side in what is an uncontested case and, on the other hand, advocating a partisan position on the merits of a specific controversy which is what Judge Sullivan has received if not solicited.

Regardless of who is inaugurated as the 46th President of the United States of America, it seems likely that a miscellany of curious public onlookers will continue their endeavours to shine a bright light on something closer to the whole truth of the "Russiagate" escapade, the investigations it has spawned (including the pendi­­­ng Durham investigation), and the Flynn prosecution.