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Judge Sullivan dismisses the criminal case against Michael Flynn, and denies as moot the government’s motion to dismiss under Rule 48(a).
“On December 18, 2018, this Court accepted Mr. Flynn’s guilty plea a second time. Under oath, Mr. Flynn confirmed that his rights were not violated as a result of the circumstances of his January 24, 2017 FBI interview and the allegations of misconduct against FBI officials.”
“…in Jan. 2020, Flynn moved to withdraw his guilty plea. In Feb. 2020, the gov’t opposed Flynn’s motion to dismiss, stating that Flynn ‘relies on allegations that do not pertain to his case, that the Court already rejected, & that have no relevance to his false statements…’”
“For the first time in this case, the gov’t claimed that: (1) Flynn’s false statements to the FBI were not ‘material’ to any investigation; (2) the gov’t is doubtful that it could prove the falsity of Flynn’s statements…”
“At oral argument…the gov’t took the remarkable position that even if…it was undisputed that the Attorney General of the US accepted a bribe in exchange for dismissing a case, a district court would have no authority under Rule 48(a) to deny the govt’s motion…to dismiss.”
“…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 ‘abused his discretion.’”
“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…”
“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.”
“And simultaneous to the President’s ‘running commentary,’ many of the President’s remarks have also been viewed as suggesting a breakdown in the ‘traditional independence of the Justice Department from the President.’”
“…the Court finds [the gov’ts two primary reasons justifying dismissal are] dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.”
![“…the Court finds [the gov’ts two primary reasons justifying dismissal are] dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.”](https://pbs.twimg.com/media/EovSZpZXMAIK_bN.jpg "“…the Court finds [the gov’ts two primary reasons justifying dismissal are] dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.”")
“The government describes the materiality threshold as requiring more than ‘mere relevance’; rather, the false statement must have ‘probative weight’ and be ‘reasonably likely to influence the tribunal in making a determination required to be made.’”
“Therefore, ‘[t]he materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular subject of [their] investigation.’”
![“Therefore, ‘[t]he materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular subject of [their] investigation.’”](https://pbs.twimg.com/media/EovXVCyXcAkZwQW.jpg "“Therefore, ‘[t]he materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular subject of [their] investigation.’”")
“However, that is not the law. Instead, the standard asks only whether Mr. Flynn’s statements were ‘capable of affecting’ the ‘general function’ of the FBI when it interviewed him.”
“Notably, during the Sept. 29, 2020 motion hearing, the govt seemed to suggest that, when moving for dismissal of an action pursuant to Rule 48(a), the govt need not refer to the correct materiality standard at all when determining whether a false statement is ‘material.’”
“As an initial matter, whether or not the FBI agents thought Mr. Flynn was lying is irrelevant in a false statements case.”
“With regard to the ‘inconsistent records’ rationale, the government has not pointed to evidence in the record in this case that contradicts the FD-302 that memorialized the FBI agents’ interview with Mr. Flynn.”
“Furthermore, the government’s reliance on Director Comey’s opinion about whether Mr. Flynn lied is suspect given that Director Comey was not present at the interview and that there are valid questions regarding the admissibility of his personal opinion.”
“With regard to Flynn’s alleged ‘faulty memory,’ Flynn is not just anyone; he was the NSA to POTUS, who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President...“
"With regard to the government’s concerns about
the Assistant Director for Counter Intelligence’s contemplating
the goal of the interview, an objective interpretation of the
notes in their entirety does not call into question the legitimacy of the interview.”
the Assistant Director for Counter Intelligence’s contemplating
the goal of the interview, an objective interpretation of the
notes in their entirety does not call into question the legitimacy of the interview.”
“Finally, and critically, under the terms of Mr. Flynn’s cooperation agreement, the government could have used his admissions at trial, but the government ignores this powerful evidence. Again…the Court must be satisfied that the government undertook a ‘considered judgment.’”
“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.”
“Here, the scope of the pardon is extraordinarily broad… However, the pardon ‘does not, standing alone, render [Mr. Flynn] innocent of the alleged violation’ of 18 U.S.C. § 1001(a)(2).”
![“Here, the scope of the pardon is extraordinarily broad… However, the pardon ‘does not, standing alone, render [Mr. Flynn] innocent of the alleged violation’ of 18 U.S.C. § 1001(a)(2).”](https://pbs.twimg.com/media/EovYdlqXUAM88sp.jpg "“Here, the scope of the pardon is extraordinarily broad… However, the pardon ‘does not, standing alone, render [Mr. Flynn] innocent of the alleged violation’ of 18 U.S.C. § 1001(a)(2).”")
