The Case of Michael Flynn
Rarely does the divide between career and politically-appointed prosecutors attract public attention. The prosecution of former Trump National Security Advisor Michael Flynn did.
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Justice in Brief
*In the Western District of Wisconsin, a milling company and several high-level corporate officials received prison time for failing to follow required procedures for cleaning grain dust. The company’s failure to follow these procedures led to a fire at the mill that killed five people.
*In the Southern District of New York, a Minneapolis man returned to the United States from Somalia as a result of criminal charges of his material support of terrorism. According to the complain, he had gone to Somalia to receive training from the Islamic State and desired to return to the United States and attack United States citizens.
*In the District of Nebraska, a Ukrainian man entered a guilty plea to Racketeer Influenced Corrupt Organization (RICO) and wire fraud charges in connection with planting malware on people’s computers. The program blocked critical computer functions and could only be released by paying ransom.
The Prosecution of Michael Flynn
Before President Trump assumed the presidency, his transition was beseiged by criminal investigations. One of the first was his choice for National Security Advisor, Michael Flynn. The FBI received information that Flynn was in contact with Russia’s ambassador to the United States regarding the sanctions that the Obama Administration had imposed on Russia following Russia’s efforts to interfere in the 2016 presidential election. The conversation occurred in the waning days of 2016. Just days before the President Trump’s inauguration, the news media reported on the conversation. When asked by the President’s Chief of Staff and the Vice President about the conversation, Flynn denied it occurred. Flynn’s denial led to his entering a guilty plea for violating 18 USC 1001, making false statements to the government. Only then did the conflict between the politically-appointed prosecutors and the career prosecutors begin.
Born on Christmas Eve, 1958, Flynn joined the United States Army in 1981. He rose through the ranks to become a Lt. General. His final position was Director of the Defense Intelligence Agency from 2012 to 2014. He resigned after alleged complaints about his managerial style and personality conflicts with superiors. In 2014, he opened Flynn Intel Group, an intelligence consulting business and began acquiring Russian clients. One project involved promoting Russian companies in their efforts to build nuclear reactors in the Middle East. He also became a sought after speaker for various Russia-based organizations. These connections likely led to his representation of Turkish interests who sought the return of Fethullah Gulen to Turkey so Gulen could be prosecuted. At the same time, Flynn spread Q-Anon-related conspiracy theories and advocated for Hillary Clinton’s arrest during the 2016 Republican Convention. This made him the leading candidate to become Donald Trump’s National Security Advisor.
Following Donald Trump’s victory in the November 2016 election, President Barack Obama imposed sanctions on Russia for its efforts to interfere in the election. President-elect Trump opposed these sanctions and believed Russia would retaliate. His newly-named National Security Advisor, Michael Flynn, utilized his Russian connections to speak with Russia’s Ambassador to the United States Sergei Kislyak. During the conversation, Flynn asked Kislyak to limit Russia’s response to the sanctions. Kislyak did him one better as Russia did not respond at all to the US-imposed sanctions.
When Russia did not respond, the intelligence community was puzzled as Russia always responded with reciprocal santions. The FBI began investigating and discovered Flynn’s call. Following the call, Flynn informed his deputy, K.T. McFarland about the call, saying it had been successful. Several days later, the Washington Post reported on the call. Flynn denied it. When President-elect Trump’s Chief of Staff and Vice President question Flynn about the call, Flynn also denies it. The FBI, knowing the call had occurred, believed Flynn’s denial made Flynn vulnerable to Russian influence. A month later, mounting pressure both inside and outside the White House forces Flynn to resign.
Due to the connection with Russian influnce, the matter fell under the purview of Special Counsel Robert Mueller’s investigation. In November, 2017, Flynn entered a guilty plea to one count of making a false, material statement to the government. Both sides agreed to delay sentencing as Flynn was cooperating with Mueller’s investigation. Thirteen months later, the government recommends a minimal sentence due to Flynn’s extensive cooperation. Instead of accepting the sentence, however, Flynn argues his plea lacked a factual basis because he was denied counsel at the interview and was never informed that false statements would be criminal.
The same month—December 2018—Attorney General Jeff Sessions resigned and was replaced by Bill Barr. Sessions had fallen out of favor with President Trump and had been the reason Robert Mueller was appointed Special Counsel. Sessions worked on Trump’s campaign and was connected to the potential Russian interference. With Sessions removed, the Special Counsel’s office could also be dismantled. For his part, Barr had been Attorney General once before, during the waning days of George H.W. Bush’s presidency. He was strongly conservative and independent-minded.
In May 2019, Mueller’s investigation concludes and the office is dismantled, leaving the still unsentenced Michael Flynn case to revert to Justice Department control. At the same time, Flynn fires his legal team, hiring Sidney Powell as his legal counsel. Powell begins an investigation into the investigation of Flynn. The career prosecutors who received the Flynn case accused Powell of trying to undermine the guilty plea. Eventually, Powell filed a motion to withdraw Flynn’s plea, alleging outrageous government conduct. The judge who accepted the plea refused to allow Flynn to withdraw the plea.
While awaiting a hearing on the matter, Barr requests the United States Attorney for the Eastern District of Missouri, Jeff Jensen, to review the case. With the review ongoing, Barr also replaced the United States Attorney for the District of Columbia with Timothy Shea. Barr had employed Shea as an associate attorney general during Barr’s tenure with the George HW Bush administration. Following Jensen’s investigation, Barr announced that the Government will dismiss the case, prompting the resignation of the career prosecutors handling the case. Shea signed his name to the motion for dismissal without including any career prosecutors, an unusual occurrence.
When speaking about the dismissal, Barr emphasized a dual standard of justice that had emerged in the country. He said he wanted to restore a single standard of justice. In his mind, the case against Flynn was unjust and therefore, had to be dismissed.
The case and Barr’s comments hint at a divide between the politically-appointed prosecutors and the career prosecutors. First, the comments indicate that politically appointed prosecutors and career prosecutors apply different standards of justice. One would think that politically-appointed prosecutors would be more likely to make politically-driven decisions. Barr’s comments, however, imply that career prosecutors have their own political agenda. Second, it reveals Barr’s belief that the politically-appointed prosecutors should be making decisions on cases, leaving the career prosecutors to simply act on those decisions. Next week’s issue will explore Barr’s belief, especially as it relates to the relationship between the political and career prosecutors.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!
Interesting discussion. The potential for such divide is most obvious in the federal system. But state apa and state attorney general offices can face the same challenges. The struggle can be between those that “just want to do the job” and those brought in to honor the practices, policies or reforms promised by the official now running the place. Offices run on platform can struggle to recruit and retention those interested in mastering the work. Look forward to your discussion next week.