Following the Justice Department's decision to drop charges against the former national security adviser over lying to the FBI, Judge Emmet Sullivan tapped John Gleeson, a former federal judge, to challenge the government's position.
In addition, Gleeson will have to examine whether the general committed perjury since he pledged under oath that he was both guilty and innocent of lying to the FBI about his contacts with Russia. Sullivan's ruling was dubbed by The New York Times "an extraordinary move in a case with acute political overtones", while The Wall Street Journal's editorial board called the new twist in Flynn's case a "bad judgement".
Earlier, the Justice Department motion to dismiss the charges against the 33-year military veteran was subjected to partisan criticism from the left-leaning mainstream media and ex-President Barack Obama, who accused Flynn of committing perjury in an audio leaked by Yahoo News on Friday.
Sputnik: The DoJ’s decision to drop the Michael Flynn case has prompted a lively debate among legal experts. What's your take on the DoJ's move? Is there any obvious legal precedent in which a case was thrown out after the defendant pleaded guilty?
Patrick Borchers: It’s not unheard-of for a prosecution to be dismissed even when the defendant is in prison. Usually it involves newly discovered evidence or a later prosecutor discovers prosecutorial or law enforcement misconduct that was not known to the defendant and the defendant’s attorneys.
Sometimes subsequent prosecutors will conclude that a conviction or a guilty plea was the result of unknown evidence or misconduct and dismiss the charges.
Sputnik: Explaining its decision, the Justice Department said that it could not prove to the jury that "Mr. Flynn’s statements were never 'material' to any FBI investigation". Law experts cited by The New York Times say that the aforementioned justification seems "dubious". Will the DoJ's decision prompt further legal controversy, in your opinion?
Patrick Borchers: Usually materiality is a very loose requirement. I doubt that this case will have much effect on other cases. The highly charged political atmosphere of it makes it an unusual case. I think the decision turned more on the later-appointed prosecutor’s view that the questioning of Flynn was unnecessary and unfair.
Sputnik: What's your take on the FBI's handling of the Flynn case, given the April exposure of the bureau's documents and handwritten notes? Does the Flynn case really seem cooked up, from your point of view? Was it right from a moral and legal standpoint to throw the case out?
Patrick Borchers: It’s hard to say. Law enforcement is entitled to use aggressive tactics — including deception — in investigating crimes. The handwritten notes, though surprising to many non-lawyers, show that the FBI was engaging in aggressive tactics, though one agents have used before.
In retrospect, Mr. Flynn should have asked for a lawyer and terminated the interview, which would have prevented him from engaging in any arguably criminal conduct.
Although the FBI’s tactics did not meet the legal definition of entrapment, the later-appointed prosecutor concluded that they were unfair.
Sputnik: Why didn't Donald Trump just pardon Mr. Flynn? How could General Flynn benefit from his case being dropped by DoJ prosecutors instead of receiving a pardon? What are the nuances?
Patrick Borchers: It would have cost President Trump political capital to pardon Mr. Flynn. Note that he hasn’t pardoned Paul Manafort or Roger Stone, both of whom stayed loyal to him to the end. If Trump is defeated in November, I would expect to see him issue many pardons before the inauguration in January of 2021. Many Presidents issue a flurry of pardons as they leave office. President Clinton issued several controversial pardons on his way out the door in 2001.
One interesting aspect of the Flynn case is that the judge has thus far refused to dismiss the charges and is calling for the views of third party groups. However, in my view, the judge has no legal authority to interfere in a decision of the Executive Branch as to whether to prosecute an individual. It’s obvious that the judge doesn’t think that the Department of Justice should have dismissed the case, but it’s not his call to make.