What the Michael Flynn case needed: Adults in the room

It seems everyone wants heads to roll over the investigation and prosecution of former National Security Advisor Michael Flynn.  Whether you are on the Trump/Barr side of things calling for dismissal of Flynn’s federal felony charge of lying to the F.B.I., or on the Biden/Schumer team calling for the rejection of the dismissal motion by Barr’s Department of Justice in the federal district court in Washington, both sides are correct in saying that something has gone terribly wrong here. 

Fortunately, the trial judge in Washington has taken a wise and prudent step in putting an adult in the room to help clear up this mess.

Shortly before Donald Trump was sworn in as president, Michael Flynn was identified as the first National Security Advisor for Trump.  During that time, he spoke to Russian Ambassador Sergey Kislyak and asked that Russia not retaliate because of the sanctions placed on Russia by the Obama administration for interfering in the 2016 presidential election, and he also encouraged Russia to not support an anti-Israel resolution pending before the United Nations that had been supported by the Obama administration. Flynn’s conversations were monitored by U.S. intelligence agencies. 

The next steps are the ones most disputed. Without the approval of Department of Justice higher-ups, and after a prior Flynn investigation had been apparently terminated without any charges, F.B.I agents interviewed Flynn shortly after President Donald Trump was sworn in, and he denied the substance of the Kislyak calls.  Flynn then also denied to Vice President Mike Pence and others that he had those discussions and was fired by Trump in February 2017 after his misrepresentations were revealed.

In December 2017, Special Prosecutor Robert Mueller charged Flynn with lying to the F.B.I., and Flynn pleaded guilty and cooperated in Mueller’s investigation. All seemed to be on course for Flynn’s sentencing this summer.

But in a move deem unusual by any of us with Justice Department experience, Attorney General Barr replaced the Mueller prosecutors with a Justice Department ally of his and moved to dismiss the Flynn prosecution after Flynn moved to withdraw his guilty plea. Barr’s position was that there was no investigation pending at the time of the Flynn interview, and thus he could not be convicted of lying to federal agents because the charging statute requires that any lies be material to a pending investigation. 

Many of us were shocked by this move because it seems that the lies had to be important to the probe of Russian interference in the election, especially by a National Security Advisor-designee who could be blackmailed by Russia later. Battle lines were immediately drawn over the motion and its effect on Flynn’s sentencing. Trump’s allies claim Flynn was exonerated, and Trump said he might bring Flynn back into the administration; more than 2,000 former Justice Department prosecutors called for Barr’s resignation.

Fortunately for all of us, the federal judge presiding over the Flynn case, Emmet Sullivan, stepped on the brakes to try to figure out what was really going on here. He appointed John Gleeson, a former federal trial judge, to investigate this strange series of events and report his findings to the court. Judge Gleeson is a highly respected former jurist and federal prosecutor who takes no sides, just does his job. As an assistant U.S. attorney, he successfully prosecuted Mafia Don John Gotti and his henchman, Sammy “the Bull” Gravano, among his many important cases.

This week, Flynn appealed Judge Sullivan’s order delaying his decision on the motion to dismiss the case to the United States Court of Appeals for the D.C. Circuit and asked that Judge Sullivan be replaced. The Court of Appeals is likely to not intervene at this time and will wait for Judge Sullivan’s decision on the motion to dismiss the case against Flynn.

The republic is fortunate that Judge Gleeson and Judge Sullivan are in charge of this spectacle, and we will finally get to find out what really happened in this dark episode for the Department of Justice. 

Christopher F. Droney is a former judge for the United States Court of Appeals for the Second Circuit and a former U.S. District Judge. He also served as the United States Attorney for Connecticut. He is now a partner in the law firm Day Pitney LLP.