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The Tragedy of Michael Flynn: Part Six

The title of this analysis is “The Tragedy of Michael Flynn,” and this was a deliberate choice. It is intentionally politically ambiguous, as the left would argue that Lieutenant General Michael Flynn is a tragic figure because he sold out his country by conversing with then-Russian Ambassador to the U.S. Sergei Kislyak; the right would say that Flynn is the victim of a tragically lawless prosecution by the same government that he served for over three decades. What has been attempted here is an apolitical analysis wherein readers can step away with the understanding that Flynn is not without blame, but also undeserving of the circumstances he has been subjected to.

Even those who believe that Flynn is “a traitorous Russophile who sold out both his honor and his country,” as asserted in the introductory paragraph of part one, should apply Harvard Law School Professor Emeritus Alan Dershowitz’s “shoe on the other foot” standard and consider how they would feel if Susan Rice (Obama’s final national security advisor) were subjected to the same investigatory and prosecutorial practices as her successor—the Flynn standard. Granted, one may suggest that Rice did not communicate with the Russian ambassador and tell the FBI otherwise, but there has been no indication that she was lured by the FBI into giving false testimony.

This comment exceeds the parameters of simple analysis and enters the editorial realm, but it would be appropriate—if not advisable—for the DOJ to allow Flynn to exit his plea deal. This move would not clear Flynn, but it would allow him a day in court wherein he can litigate the lying-to-the-FBI charge assessed against him by the DOJ. If the DOJ does have other charges it can bring against the former lieutenant general, nullifying the plea deal would actually prove advantageous: They would have newfound carte blanche to throw any charge at Flynn and see what sticks.

Moreover, Flynn has already through on the other terms of his plea deal, which required cooperation with the special counsel’s investigation. The Christian Science Monitor notes that Flynn partook in “19 debriefing sessions with prosecutors and investigators, extending over nearly 63 hours, and assisting several ongoing investigations” (Richey, 2018).

The Wall Street Journal editorial board goes further than supporting the nullification of the plea deal. They suggest that Flynn’s judge, Emmet G. Sullivan, should “decide if [the FBI’s] underhanded tactics now merit throwing out the case.” The Journal editorial cites Brady v. Maryland (1963), which compels prosecutors to make available exculpatory evidence, and notes that the Flynn prosecutors would have not done this if not for the intercession of the aforementioned U.S. Attorney Jeffrey Jensen. The Journal puts the case in stark terms: “Judge Sullivan has an obligation to examine the prosecutorial record. … If judges aren’t willing to police misbehavior, Americans can have no faith in our system of justice” (The Editorial Board, 2020).

Judge Emmet Sullivan

Though the decision is not mentioned by the Journal, Sullivan could also consider U.S. v. Russell (1973), which found that cases can be dismissed based on “outrageous government conduct” (Jurecic & Wittes, 2020). Flynn and his counsel could argue that the FBI deliberations and the alleged withholding of exculpatory evidence constitute outrageous conduct by the government. However, “No court of appeals has held that a predisposed defendant may establish a due process violation simply because he purportedly was induced to commit the crime by an undercover agent or informant” (Jurecic & Wittes, 2020).

Given the case law on U.S. v. Russell, the most realistic starting point for Flynn appears to be exiting the plea deal, the terms of which he has obeyed. The prosecutors have no reason not to allow him to do this. From thence, Flynn can solicit a dismissal from Sullivan on Brady v. Maryland grounds (or Russell, if his attorney is feeling ambitious); if the motion is rejected, Flynn can put his best foot forward in a jury trial and let his fate rest in the hands of his peers.

This is the sixth part of a six-part series on the investigation and prosecution of Lieutenant General Michael Flynn, written by Declan M. Hurley. This segment is entitled "Flynn's Next Steps." Hurley's source list (to which the parenthetical citations correspond) can be found here: