United States v. Michael Flynn – running commentary

Michael Flynn is a former U. S. General who briefly served as President Trump’s national security adviser. He almost immediately resigned from that post, and at the time it was explained that he had lied to the Vice President about meetings he had had with representatives of the Russian government.

It later developed that before he resigned he was interviewed by agents of the Federal Bureau of Investigation, and apparently lied to them, as well, about his meetings. In December 2017 he pleaded guilty to a charge that he had lied to a federal officer (a violation of 18 U.S.C. Section 1001), and in December 2018 he confirmed that guilty plea, but asked that his sentence be postponed.

Starting shortly thereafter, he refused to cooperate with federal investigators and asked to withdraw his guilty plea. In May 2020 the United States Attorney filed a motion to dismiss the charges against him. This move was immediately attacked by a number of observers (including myself), who argued that it was politically motivated to spare a friend of the President. The presiding judge then appointed an “amicus curiae” (friend of the court) to advise him how to proceed.

The matter was very intensely litigated, including a consequential review by the Court of Appeals. In November 2020, President Trump in effect ended the litigation by issuing a full (and very broad) pardon of Flynn. Curiously, Judge Sullivan subsequently issued an opinion dismissing the entire case as moot, but addressing the question whether he had power to review the prosecutor’s motion to dismiss under these highly unusual circumstances.

He ultimately concluded only that it was a “close question” that he did not need to reach, but nonetheless offered very interesting (and provocative) thoughts on the legal issues, and distinctly uncomplimentary comments about the prosecutors’ conduct.

The legal issues are complex, and raise very difficult and important issues relating to the “separation of the powers” and the appropriate role of the judiciary in the administration of criminal justice.

I have created a public “folder,” where one can find essentially all of the critical documents along with my occasional commentaries on the case; you will see it here .