Media accounts stating “U.S. Drops Criminal Case Against Ex-Trump Aide Flynn” made it appear that Michael Flynn’s case was over. As a former prosecutor, I know the government does not have final say in Flynn’s dismissal. Judge Emmet G. Sullivan will make the final ruling on what happens to Flynn. And Sullivan will not make a ruling anytime soon.
Under federal court rules, after a defendant pleads guilty, the government must ask for permission from the presiding judge before a dismissal may be granted. Flynn pleaded guilty in December 2017 to lying to the government by making a materially false statement. In January 2020 Flynn filed a motion to withdraw his guilty plea and a motion to dismiss his case. Sullivan has not ruled on either motion.
Department of Justice attorneys filed a motion to dismiss alleging that they can no longer prove Flynn’s guilt on the elements of the crime beyond a reasonable doubt. Sullivan, in an earlier 92-page ruling, rejected almost point by point the same argument being made in the government’s motion to dismiss. Sullivan rejected the argument that Flynn was unfairly tricked into pleading guilty — twice — and that his statements did not affect the Russian investigation. A former Justice Department official, Mary McCord, states the government twisted her words to file the motion to dismiss. McCord states Flynn’s lies were materially obvious.
Sullivan, a 72-year old African-American judge, was appointed to the federal bench by President Bill Clinton. Sullivan once questioned why the government did not charge Flynn with treason, given the gravity of Flynn’s acts. He is also a no-nonsense jurist. In an unrelated case, during a court hearing, he demanded the government return a plane to the United States that had landed in El Salvador carrying a deported litigant against the judge’s orders. The plane returned to the United States with the deported party.
Sullivan has multiple options regarding the motion for leave to dismiss. He could summarily dismiss the case pursuant to the government’s request. That’s not likely to happen after his recent ruling. He could grant the motion to dismiss but explain his reasons. He might set a hearing date, request written briefs from the parties or even permit witnesses, including Mary McCord and other former Justice Department officials, to appear to testify.
Sullivan could also deny all the pending motions with or without a hearing and set the case in for sentencing.
Under normal circumstances, a judge would grant the motion to dismiss as a formality. This case is anything but normal. Sullivan intends to allow other non-party individuals and organizations to file amicus briefs weighing in on the case — a highly unusual decision.
There is no time limit on when the court must make its decision or schedule a time for additional briefs. The court can take days, several weeks or months to decide. If the court grants the motion to dismiss with prejudice, Flynn could not be charged again for the same crime due to double jeopardy. If the court grants the dismissal without prejudice, Flynn could be charged again.
Sullivan should ultimately deny Justice’s motion and sentence Flynn to the appropriate sentence that he deserves. Flynn should not be allowed to sashay his way out of the crime he committed and to which he twice pleaded guilty — even with the help of the Department of Justice.