And while nobody except perhaps Sullivan knows what lies ahead, there are some very valid reasons to believe he might be reluctant to dismiss.
Flynn’s attorney decried Sullivan’s ruling Tuesday, saying, “No rule allows this filing.”
“This travesty of justice has already consumed three or more years of an innocent man’s life — and that of his entire family,” Sidney Powell wrote. “No further delay should be tolerated or any further expense caused to him and his defense.”
Sullivan, though, hasn’t seemed to regard the situation as a “travesty of justice” or anywhere close to that — at least based upon what was previously known. While the Justice Department now says that Flynn wasn’t guilty of an offense because his lies weren’t material to a legitimate investigation, Sullivan reinforced the severity of Flynn’s offenses on numerous occasions during a remarkably candid hearing in late 2018.
And in that hearing are some clues about how Sullivan might approach this very difficult decision today.
At the sentencing hearing, Flynn’s attorneys attempted to argue that he had effectively been railroaded by the FBI — even as they weren’t attempting to withdraw the plea. This clearly angered Sullivan. He responded by making Flynn reaffirm that he had knowingly lied and casting Flynn’s offenses in rather stark terms.
At one point, Sullivan summarized Flynn’s lies to the FBI and to the White House and about his lobbying work for Turkey by saying, “I mean, arguably, that undermines everything this [American] flag over here stands for. Arguably, you sold your country out. The court’s going to consider all of that.”
Flynn’s charging document alludes only to the lies about his contacts with then-Russian Ambassador Sergey Kislyak in a January 2017 FBI interview. But the accompanying statement of offense also refers to Flynn’s lies about working for Turkey in a later filing under the Foreign Agents Registration Act:
On March 7, 2017, FLYNN filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey (“Turkey project”). In the FARA filings, FLYNN made materially false statements and omissions, including by falsely stating that (a) FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project, (b) the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, and (c) an op-ed by FLYNN published in The Hill on November 8, 2016, was written at his own initiative; and by omitting that officials from the Republic of Turkey provided supervision and direction over the Turkey project.
The fact that Flynn’s false statements about his Turkey work don’t appear in the charging document suggests that they may not have much bearing on any future legal decisions, but Sullivan seemed to regard them as pertinent during Flynn’s sentencing, at least — saying, “The court’s going to consider all of that.”
What’s more, those lies didn’t occur in the January 2017 interview, but rather in the later legal filings.
Sullivan also attempted to put to bed the idea that Flynn would ever again challenge the appropriateness of that January 2017 interview:
SULLIVAN: Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?FLYNN: Yes, your honor.
It’s now effectively the Justice Department itself that is challenging the circumstances of Flynn’s interview, but it seems possible that Sullivan may regard that issue as something of a settled one when it comes to Flynn’s defense. Sullivan got Flynn to repeatedly accept not just that he had knowingly lied, but also that it had a material impact on an investigation — even if the Justice Department know says the latter isn’t true.
(Flynn was also asked, “Do you have any concerns that you entered your guilty plea before you or your attorneys were able to review information that could have been helpful to your defense?,” and Flynn said, “No, your honor.”)
And, finally, perhaps the most controversial aspect of the December 2018 sentencing hearing was when Sullivan invoked treason. Sullivan asked the government whether it had considered charging Flynn with that much more serious offense, given that Flynn had discussed sanctions with Kislyak shortly after then-President Barack Obama had imposed them on Russia.
“I really don’t know the answer to this question, but given the fact that the then-president of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?” Sullivan asked.
The government said it hadn’t considered charging Flynn with treason, but Sulivan pressed again: “All right. Hypothetically, could he have been charged with treason?”
Sullivan later clarified that he wasn’t alleging that Flynn might have committed treason but that he was merely probing how generous the government had been in its plea deal.
But the passage could be instructive. And combined with his other comments, it suggests that Sullivan viewed Flynn’s offense as being very serious indeed — serious enough that Flynn might have “sold your country out.”
That might not have any bearing on whether Sullivan will allow the Justice Department to end a case that it now says wasn’t legitimate in the first place. And perhaps the new reasoning offered by the Justice Department will convince Sullivan that Flynn’s offenses weren’t, in fact, so severe — or even offenses at all. But he sure seemed to regard them as very severe back then, and a reversal now would fly in the face of much of what Sullivan said in late 2018.