[Update: In response to reactions, the writer urges that the idea of pardoning Michael Flynn only for the new contempt charges launched by Judge Sullivan on May 13 be considered differently and separately from the original charges brought by Robert Mueller. I believe that the President can put an end to this new, unprecedented attempt to do an end-run around the Department of Justice’s decision to drop the case.]
It was a shocker on Wednesday afternoon. In the political persecution of General Michael Flynn, Judge Emett Sullivan launched new criminal charges against Flynn under his own authority. President Trump must stop this further politicization by pardoning Michael Flynn of these new charges of contempt of court.
To recap, which matters, the charges against Flynn were withdrawn on May 7, 2020. The new interim U.S. Attorney for the District of Columbia Timothy Shea filed a motion to dismiss the case in the U.S. District Court for the District of Columbia.
Technically, Judge Emett Sullivan could decide whether to grant the motion to dismiss or not. This is especially complicated because Flynn already pled guilty, and the next step would be sentencing by the judge. However, when the Department of Justice says it will not prosecute, will not defend the case on appeal, and specifically put on the public record how the prosecution has no merit, it leaves the judge with little room to proceed.
Presented with a litany of prosecutorial abuse, Judge Sullivan should welcome the dismissal. Normally a judge would demand to know how the prior prosecutors committed such egregious assaults on the rule of law.
Late on May 13, Judge Sullivan issued an order appointing a retired judge to act as prosecutor to prosecute Flynn for contempt of court under Rule 42 of the Federal Rules of Criminal Procedure. Instead of demanding that the FBI officers and DoJ officials who flagrantly lied be held accountable, Judge Sullivan wants to put Flynn in jail for up to 5 years for previously pleading guilty.
Note, of course, that it was the DoJ – not Flynn – who moved to dismiss the case. How has Flynn committed contempt of court under Rule 42? Why is Sullivan not angry with Attorney General William Barr?
Flynn was blackmailed into pleading guilty when the corrupt DoJ threatened to prosecute Flynn’s son. Unfortunately, these abusive tactics have come to be accepted as normal. Our nation cannot survive unless we reject these tyrannical and fascist methods. If the government can coerce innocent defendants and then pretend they voluntarily pled guilty, there is no due process.
Michael Flynn was interviewed by FBI agents on January 24, 2017, as the new National Security Advisor for the incoming Trump Administration. Falsely presenting themselves as colleagues discussing plans for standing up the new Administration, the FBI agents were in fact trying to trap Flynn in a perjury trap.
All the many details of the extreme corruption within the Obama Administration’s FBI and Department of Justice have been extensively presented elsewhere and would not fit here. But it is clear as Senator Chuck Grassley explained, including on Fox News, “And if he got to be national security adviser for President Trump, he’d know where the bodies are buried and he would make big changes.”
Joe DiGenova explains how the Obama team’s coup d’etat against the incoming President Trump was in great danger. Flynn with his knowledge of the intelligence community would have exposed and stopped the phony Russia hoax and Deep State intrigues before it got rolling.
So James Comey and other coup plotters blamed Flynn for talking to the Russian Ambassador Sergey Kislyak on December 1 and December 22, 2016. That was literally Flynn’s job. The coup plotters pretend there might be something wrong with the incoming National Security Advisor talking to the Russian Ambassador.
Flynn was representing the transition team of the next President, which is an actual legal entity under the Presidential Transition Act of 1963. The Logan Act cannot apply because Flynn was representing the official, governmental transition team.
So why hasn’t President Donald Trump pardoned Flynn? Well, Trump does have a maybe it will turn out right, let’s wait and see, optimism. Also it would make Flynn look guilty. Winning outright is better. And the Deep State, lying news media, and corrupt Washington has managed to scare Trump into thinking that he will be accused of covering up things that never happened if he holds the justice system accountable.
But Judge Sullivan’s May 13, 2020, order is technically a new, different case as I understand it. President Trump can and must pardon Flynn specifically for any acts or omissions before the U.S. District Court for the District of Columbia. This can avoid any of the disadvantages of pardoning Flynn for the original charges.
What did Flynn do? Under obvious coercion, Flynn pled guilty under a deal to protect his son and endure no jail time. The DoJ then broke that deal by demanding the jail time they agreed not to ask for when Flynn changed his legal team and asked to withdraw his guilty plea. The DoJ then argued that a motion to withdraw his plea – a perfectly legal motion – showed that Flynn lacked remorse. Never has the government shown remorse for the misconduct of the FBI and DoJ.
Rule 42 which Sullivan has invoked is evidently authorized by the frighteningly vague 18 U.S. Code § 401. That statute prohibits “(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions; ….”
What legally is this “misbehavior?” You don’t know. I don’t know. Judge Sullivan doesn’t know. Michael Flynn doesn’t know. That makes the statute a violation of the due process clauses of the U.S. Constitution. If you can’t tell ahead of time what you can and cannot do, then a criminal statute violates the U.S. Constitution.
The motion to dismiss the case was filed by the U.S. Attorney, not by Flynn. How is that misbehavior by Flynn?
Was Flynn guilty? On January 24, 2017, everyone did something. But was it against the law? On January 24, 2017, Michael Flynn had a conversation with FBI agents. But was that illegal? People confuse whether they did certain acts as a different question from whether they broke the law. Flynn was misled by the prosecutors into making a guilty plea, without realizing that there was no legitimate reason for the FBI interview. Flynn had ineffective assistance of counsel from Covington & Burling. Flynn could truly not know that what he did wasn’t illegal.
But instead of Sullivan applying 18 U.S. Code § 401 to the bad behavior of the FBI and DoJ, Sullivan wants to punish the victim instead of the perpetrators.
Because this is so very wrong, Trump should pardon Flynn for any and all alleged contempt under Judge Sullivan’s May 13, 2020, order and shut it down without any of the downsides that might be perceived in relation to the original case as a whole.