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Flynn Judge Makes Parting Shot in Tossing Case After Pardon (2)

Dec. 9, 2020, 1:40 AM

The prosecution of former National Security Advisor Michael Flynn for lying to federal agents during the Russia investigation has been dismissed by a judge overseeing the case, following President Donald Trump’s pardon last month. But the judge made clear he wasn’t happy about it.

U.S. District Judge Emmet Sullivan in Washington on Tuesday said the president’s broad authority to issue pardons all but assured dismissal of the case, which the Justice Department had been fighting to toss out for months even before Trump’s act of clemency on Nov. 25.

“Substantial doubt arises about the government’s stated reasons for seeking dismissal,” Sullivan wrote. He added that Trump’s many tweets about the case had made the court “troubled by the apparently pretextual nature of certain aspects of the government’s ever-evolving justifications” for dismissal.

In May, Sullivan clashed with the Justice Department after refusing to rubber-stamp a motion to dismiss the suit, which the government argued was warranted because Flynn had been tricked into lying to FBI agents. The U.S. also claimed it needed to abandon the case because Flynn’s lies weren’t “material” to the Russia investigation, though Sullivan never bought that argument. A so-called friend of the court who was selected to argue against dismissal determined the whole effort to ditch the case was a corrupt attempt to help a Trump ally.

The dismissal is “extremely late and pathetically political,” Flynn’s lawyer, Sidney Powell, said in an email. “The entire Flynn persecution has been a travesty of justice and an embarrassment to the entire country.”

The pardon may have worked out well for Flynn, but the Justice Department’s effort to walk away from the case was an “unmitigated disaster” for the government that caused real damage to the rule of law, said former federal prosecutor Jennifer Rodgers.

“The positions taken by DOJ in this case undermined the credibility of prosecutors, damaged DOJ’s reputation with the courts, and gave fodder to defendants facing similar charges for years to come -- particularly with respect to how DOJ has now twisted the definition of ‘material’ to suit their purposes in this single case,” Rodgers said.

In granting the motion to dismiss the case as “moot,” Sullivan weighed in on Flynn’s claim that he is innocent, particularly the idea that Flynn had simply forgotten during his FBI interview about his December 2016 conversation with Russia’s then-ambassador to the U.S.

“Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, 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 prior to the president-elect taking office,” Sullivan wrote.

The judge also quoted several precedent-setting court decisions holding that a pardon doesn’t automatically wipe a record clean.

“A pardon does not necessarily render ‘innocent’ a defendant of any alleged violation of the law,” Sullivan wrote. “Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a ‘confession’ of guilt.”

(Updates with ex-prosecutor’s comment)

To contact the reporter on this story:
Erik Larson in New York at

To contact the editors responsible for this story:
David Glovin at

Steve Stroth, Joe Schneider

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