Blog No. 260. The Flynn Debacle (Part II: A Mystery Witness)

There have been a number of significant developments since Part I was posted on May 19. At that time, Judge Emmett G. Sullivan had appointed retired Judge John Gleeson as an amicus curiae to oppose the government’s motion for dismissal of the Flynn case. On the 19th, however, Flynn’s lawyer, Sidney Powell, petitioned the District of Columbia Court of Appeals for an order (“writ of mandamus”) directing Judge Sullivan to grant the government’s motion. Two days later, on May 21, a panel of the Circuit Court directed Judge Sullivan to respond by June 1. Sullivan has now retained a highly respected District of Columbia attorney, Beth Wilkinson, to represent him in making that response. (One of the more interesting items on Ms. Wilkinson’s resume is that she represented Justice Brett Kavanaugh during his confirmation hearing.)

In political terms, the Court of Appeals panel assigned to the Flynn matter has an interesting balance. The most senior member, Karen LeCraft Henderson, was appointed by George W. Bush, while Robert Wilkins was appointed by Barack Obama, and Naomi Rao is a Trump appointee. If the panel should rule against Judge Sullivan, he might seek a hearing before the full eleven member Circuit Court, a majority of whose members were appointed by Democratic presidents. If the case should reach the Supreme Court, Sullivan will be in the hands of the Court’s 5-4 conservative majority. It is discomforting to speculate that the case may be decided along partisan political lines, but that is the tenor of the times.

An initial question before the Court of Appeals may be whether the petition is premature and that, therefore, a decision should be deferred pending a decision by Judge Sullivan on the government’s motion. Beyond that, the fundamental question concerns scope of a district court’s authority to deny a motion by the government to dismiss charges against a defendant. A subsidiary question is whether the government’s motion in this case has apparent infirmities, legal or factual, sufficient to justify a close examination by the district court and, after such examination, a possible denial of the motion. I will attempt to shed some light on both questions.

Authority of a district court to deny a government’s motion to dismiss.

The starting point is Rule 48 (a) of the Federal Rules of Criminal Procedure which provides that, “The government may, with leave of court, dismiss an indictment, information, or complaint.” There is considerable case law construing the requirement for “leave of court” rather narrowly, indicating that, in general, a court is not empowered to substitute its own judgment for that of the prosecution. Such cases, however, have not involved situations in which a guilty plea has been made and accepted and all that remains is sentencing. The Court of Appeals order to Judge Sullivan cited U.S. v. Fokkers and that case was heavily relied upon in Flynn’s petition. The Fokkers case involved the intersection of a deferred prosecution agreement (DPA) and the Speedy Trial Act. It did not involve a guilty plea or a motion under Rule 48 (a). In overruling a rejection of a DPA, the Court discussed Rule 48 (a) by way of analogy. In doing so, The Court cited “the Executive’s traditional power over charging decisions” but also acknowledged “the Judiciary’s traditional authority over sentencing decisions.” The scope of Rule 48 (a) will be the subject of considerably more briefing, but readers who want to get a head start with the brief submitted by Harvard’s Laurence Tribe and 19 other scholars. (It offers a strong argument in support of Judge Sullivan’s action, and although it was submitted to the District Court, it will presumably be refiled with the Court of Appeals.)

The infirmities of the government’s motion.

The principal thrust of the government’s motion is that any lies Flynn told during his FBI interview were not material to an ongoing investigation. The foundation of that argument is the contention that prior to the Kislyak conversation, the FBI had decided to close the separate investigation of Flynn (though it had not actually done so). The Flynn investigation, Crossfire Razor, had been established to consider whether Flynn was wittingly or unwittingly involved in activities on behalf of the Russian government that might be a crime or a threat to national security. It was a part of an umbrella investigation, Crossfire Hurricane, established to consider possible coordination between the Trump campaign and Russian efforts to interfere in the 2016 election.

Given that Crossfire Hurricane had already been opened, is not clear why the FBI had found it appropriate to open a separate investigation on Flynn to begin with. Nevertheless, Flynn’s unusual contacts with Russia provided an ample basis for doing so. In any case, even if Crossfire Razor had been closed, it would have left Flynn’s statements material to Crossfire Hurricane. Indeed, it was the latter investigation that the Special Counsel had cited in the Statement of the Offense filed with Flynn’s guilty plea. To the extent there was coordination between the Trump Campaign and Russia concerning the 2016 election, it was reasonable to expect that coordination to be reflected in the actions of the new Trump administration. For more on materiality, readers may wish to read an op-ed by Chuck Rosenberg, a former U.S. Attorney and senior FBI official, in the Washington Post, “The long list of people who thought Flynn’s lies were material.”

The government’s motion spends a great deal of time demonstrating that there was confusion and internal disagreement in the ranks of the FBI and the Department of Justice leading up to the Flynn interview, including questions about what the exact purpose and strategy of the interview were and whether the White House should have been notified. It is a record that is and should be embarrassing to the FBI and DOJ, and may call for reforms, but none of it detracts from the materiality of Flynn’s statements.

The government’s motion also asserts, but makes little effort to support, a claim that “the Government does not believe that it could prove that Mr. Flynn knowingly and willfully made a made a false statement beyond a reasonable doubt.” That brazen claim flies in face of the fact that Flynn twice pleaded guilty to doing exactly that. The government attempts to discount Flynn’s guilty pleas on the grounds that they were made without Flynn’s knowledge of “newly discovered evidence” but does not pause to specify exactly what evidence it has in mind or why it would have prevented Flynn from pleading as he did.

Moreover, even apart from Flynn’s pleas, the government conspicuously fails to attempt any comparison between a transcript of the Kislyak conversations—which it has in its possession but has refused to disclose—and the FBI’s interview as summarized on the FBI’s Form 302. Nor has it made any attempt to show that the Form 302 summary is inaccurate. (I cannot resist noting in passing that there appears to be no valid reason why the FBI should not record its interviews electronically, but that is a discussion for another day.)

Rather, the government adopts Flynn’s claim that any inaccuracies in his FBI interview were attributable to lapses of memory. Without making any reference to the text of the 302 or citing any other source, the government asserts that “In his interview, Mr. Flynn offered either equivocal (‘I don’t know’) or indirect responses or claimed not to remember the matter in question.” But a response of “I don’t know” or “I can’t recall” is not a Get Out of Jail Free card. And in this case, Flynn’s claim of a faulty memory is particularly suspect. The FBI interview took place only a month after the Kislyak conversation and before the interview, Flynn’s memory should have been freshened by the report of the Flynn-Kislyak conversation by David Ignatius in the Washington Post and queries from Vice President Pence and Press Secretary Sean Spicer–to whom Flynn gave false answers that Pence and Spicer publicly repeated.

The government’s motion made a glancing reference to Flynn’s conversations with Pence and Spicer, but only to suggest that the FBI should have interviewed them. Perhaps so. Oddly enough, the FBI seems not to have asked Flynn about the people with whom he had discussed his Kislyak conversations, either before or after they took place. Notably, however, the government gave no indication that it had interviewed Pence and Spicer in connection with its motion. It interviewed numerous witnesses for that purpose, why not Pence and Spicer? Strikingly, the government also made no mention of a third witness—a Mystery Witness–who seems likely to be considerably more important than either Pence or Spicer.

The Statement of the Offense to which Flynn subscribed under oath in pleading guilty recited that:

• On December 29, Flynn called a “senior official of the Presidential Transition Team (PTT official)” to discuss “what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions… including the potential impact of those sanctions on the incoming administration’s foreign policy goals.
• Immediately after his phone call with the PTT official, called Kislyak and requested that Russia “not escalate the situation.”
• On December 31, Kislyak called Flynn and told him that in response to Flynn’s request, Russia had chosen not to escalate.
• After Kislyak’s phone call, Flynn reported to “senior members of the Presidential Transition Team” his conversations with Kislyak about the sanctions and Russia’s decision not to escalate.

If the Mystery Witness, a senior official of the PTT, was not Trump himself, it must have been someone acting at the express direction of the President-Elect.

The discussions with the “PTT official” and other members of the Presidential Transition Team were not only ignored by the government’s motion but have gone oddly unremarked upon in the media. Those discussions make it clear that what Flynn told Kislyak was neither casual nor spontaneous but concerned a high priority matter for which he had been carefully programmed. In short, it is highly unlikely that Flynn could have forgotten about his discussion of sanctions or their content. (The same discussions also raise the interesting question of why the PTT official and the other members of the transition team, who presumably joined the administration, did not brief Pence and Spicer to prevent them from passing on Flynn’s false narrative to the public.)

If the Court of Appeals permits Judge Sullivan to look beneath the hood of the government’s motion, and Judge Gleeson is permitted to function as an amicus, an evidentiary hearing would seem to be very much in order. In his op-ed piece in the Washington Post, Judge Gleeson called for disclosure of the transcripts of the conversations between Flynn and Kislyak. That would be an excellent start, but the hearing should also include the “unmasking” of the PTT official and benefit from his testimony concerning the instructions given Flynn and Flynn’s report back to the transition team. And then, of course, it would be appropriate to hear from Mr. Flynn.