Judge Sullivan Finally Dismissed the Michael Flynn Case, But Not Without Taking Some Parting Shots

U.S. District Judge Emmet Sullivan  on Tuesday dismissed the years-long criminal case against President Donald Trump’s  former National Security Advisor and retired Lt. Gen. Michael Flynn , ruling that the case was moot given an expansive presidential pardon. Sullivan decided to point out that a pardon “does not necessarily render” a defendant “innocent,” and said the “scope” of the Flynn pardon is “extraordinarily broad.” On the other hand, a pardon does not necessarily render “innocent” a defendant of any alleged violation of the law. Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a “confession” of guilt. See Burdick, 236 U.S. at 94 (“[A pardon] carries an imputation of guilt; acceptance a confession of it.”); see also United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir. 2001) (“[A]cceptance of a pardon may imply a confession of guilt.” (citing In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994)). As Chief Justice Marshall wrote, “[a] pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. 150, 150 (1833) (emphasis added). In other words, “a pardon does not blot out guilt or expunge a judgment of conviction.” […] Here, the scope of the pardon is extraordinarily broad – it applies not only to the false statements offense to which Mr. Flynn twice pled guilty in this case, but also purports to apply to “any and all possible offenses” that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. However, the Court need only consider the pardon insofar as it applies to the offense to which Mr. Flynn twice pled guilty in this case. Mr. Flynn has accepted President Trump’s “full and unconditional pardon.” See Consent Mot. Dismiss, ECF No. 308 at 2. The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot. However, the pardon “does not, standing alone, render [Mr. Flynn] innocent of the alleged violation” of 18 U.S.C. § 1001(a)(2). Schaffer, 240 F.3d at 38. Accordingly, in view of the Supreme Court’s expansive view of the presidential pardon power, the Court grants the consent motion to dismiss this case as moot. The DOJ previously filed the Flynn pardon in Sullivan’s court, noting that the pardon covered any perjury or contempt charges that Judge Sullivan’s court-appointed amicus John Gleeson argued in favor of during drawn out proceedings  over the Rule 48(a) “leave of court” issue after the DOJ-Flynn joint motion to dismiss the criminal case.  We will return to Rule 48(a) analysis in a moment because Sullivan spent a lot of time on it. The “full and unconditional” pardon also insulates Flynn from being prosecuted for “any and all possible offenses” uncovered during Special Counsel Robert Mueller’s investigation. The words “any and all possible offenses” appeared multiple times in the pardon. Flynn previously pleaded guilty to lying to the FBI about his conversations with Russian Ambassador Sergey Kislyak  on the subject of sanctions  during the transition in late 2016 . Flynn was never sentenced. Instead, Flynn fired his lawyers, hired Sidney Powell , and moved to withdraw his plea—claiming that the prosecution had withheld exculpatory evidence and that the FBI had entrapped him. Eventually, the Department of Justice and Flynn’s legal team became one and the same : the prosecution and defense agreed that there should be no criminal case. Judge Sullivan, rather than immediately granting the motion to dismiss, appointed Gleeson, a former mob prosecutor , to argue against the dismissal of the case and to argue whether Flynn should be held in contempt for perjury. Gleeson said, in straightforward fashion, that Flynn perjured himself and ought to be punished for it. Over the summer, the case ping-ponged from the U.S. District Court for the District of Columbia to the U.S. Court of Appeals for the District of Columbia Circuit to the en banc D.C. Circuit and back down to the district court again for more fireworks . “I’m from Brooklyn, not for nothing, but this crime was committed in the West Wing,” Gleeson erupted during a virtual hearing in late September. In advance of a much-anticipated Judge Sullivan ruling on the motion to dismiss, President Trump pardoned Flynn. This brings us to today. Sullivan still discussed Rule 48(a) at length on Tuesday, and revealed that he was not persuaded by many of the government’s arguments, which he said “appeared pretextual.” Ultimately, Sullivan concluded that the “application of Rule 48(a) to the facts of this case presents a close question.” But given the pardon, Sullivan said, the “appropriate resolution is to deny as moot the government’s motion to dismiss pursuant to Rule 48(a).” Sullivan said a lot of things that suggest how he might have ruled, however, and the judge took some parting shots. Sullivan unconvinced by DOJ argument that if it is executive branch’s view that a case should be dismissed, and not just the view of an individual and “rogue” prosecutor, that this indicates the dismissal is in the public interest. At the September 29, 2020 motion hearing, the government emphasized a different aspect of its argument. It conceded that the Court should not act as a rubber stamp and that it has a role to play when presented with an unopposed Rule 48(a) motion. Hr’g Tr., ECF No. 266 at 40:9-12. But, in the government’s view, this role is limited to determining whether “the decision to dismiss is the considered view, the authoritative view of the Executive Branch as a whole,” id.; rather than being the “rogue” decision of an individual prosecutor, id. at 99:16-23.7 The government argued that this standard appropriately reconciles the concerns about favoritism and pretext that led to the “leave of court” language in the Rule with the separation of powers principal that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” The Court is not persuaded by the government’s argument, however, because it fails to acknowledge the possibility that the “considered view of the Executive Branch as a whole” could be contrary to the public interest. Sullivan “persuaded” that the court “has discretion to consider the unopposed Rule 48(a) motion before it.” With the above principles in mind, in response to the government’s motion to dismiss under Rule 48(a), the Court holds that a judge may deny an unopposed Rule 48(a) motion if, after an examination of the record, (1) she is not “satisfied that the reasons advanced for the proposed dismissal are substantial”; or (2) she finds that the prosecutor has otherwise “abused his discretion.” Ammidown, 497 F.2d at 620-22. Many of the government’s arguments in favor of dismissal “appear pretextual”; President Trump’s interest in the case should not be ignored. However, while not conclusory, many of the government’s reasons for why it has decided to reverse course and seek dismissal in this case appear pretextual, particularly in view of the surrounding circumstances. For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case. According to Mr. Gleeson, between March 2017 and June 2020, President Trump tweeted or retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF No. 225 at 66. This commentary has “made clear that the President has been closely following the proceedings, is personally invested in ensuring that [Mr.] Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted [Mr.] Flynn.” Id. Sullivan recalls that Sidney Powell admitted speaking with Trump about the case , but that she said she only did that so he wouldn’t pardon Flynn.  Then the pardon happened. At the September 29, 2020 motion hearing, Mr. Flynn’s counsel, in response to the Court’s question, stated that she had, within weeks of the proceeding, provided the President with a brief update on the status of the litigation. Hr’g Tr., ECF No. 266 at 56:18-20. Counsel further stated that
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