This page contains a piece of analysis written by Declan M. Hurley, "The Tragedy of Michael Flynn," which has been posted to the main page as a six-part series. Hurley's source list (to which the parenthetical citations correspond) can be found here: https://bit.ly/3aZF7NR.
There exists a man who is seen by the left as a traitorous Russophile who sold out his highest values—honor and country. The right, however, sees him as a man of dignity who is a victim of the excesses of his own government, a political prisoner of sorts. His name is Michael Flynn, and he is a retired lieutenant general who served as former President Barack Obama’s director of the Defense Intelligence Agency (2012-2014) and for three weeks as President Donald Trump’s first national security advisor.
|Michael Flynn (NBC News)|
In Flynn’s case, the polarization of public opinion results from the supposed gulf between his first 58 years on Earth—when he rose through the ranks of the U.S. Army but lived in relative obscurity—and his latter four years as a political lightning rod. The second period of Flynn’s life commenced in 2016, when he emerged as a fervent supporter of then-candidate Donald Trump, a position that automatically earns one the contempt of half of the American population.
Flynn’s time in the spotlight—which reached a crescendo with his July 2016 speech at the Republican National Convention—made him a household name. After his man won the presidency on 8 November 2016, he was crowned as national security advisor-designate. This position is usually the crown jewel that marks a career of distinguished public service, but for Flynn, it was the beginning of something far less enviable: a personalized FBI investigation, dubbed “Crossfire Razor.” The investigation resolved to determine whether Flynn “was directed and controlled by” the Russian government (Federal Bureau of Investigation, 2017).
The machinations of the investigation were spurred in earnest by a series of 29 December 2016 phone calls between Flynn and Sergei Kislyak—then the Russian ambassador to the U.S.—that were intercepted by routine U.S. surveillance. The day the calls occurred, the Obama administration had “announced sanctions and other measures against Russia in retaliation for its alleged use of cyberattacks to interfere with the 2016 U.S. election,” reports the Wall Street Journal (Lee, Barrett, & Harris, 2017). Among these sanctions, the Guardian notes, was the expulsion of 35 Russian diplomats (Gambino, Siddiqui, & Walker, 2016).
The subject of the Obama sanctions was broached by Flynn and Kislyak in their 29 December 2016 communications. According to information provided to the New York Times by “current and former American officials,” “Flynn had never made explicit promises of sanctions relief, but that he had appeared to leave the impression it would be possible.” Flynn urged Kislyak “to keep the Russian government from retaliating over the coming sanctions — it was an open secret in Washington that they were in the works — by telling him that whatever the Obama administration did could be undone” (Rosenberg & Apuzzo, 2017).
Despite his discussions with Kislyak on the subject of sanctions, Flynn told Vice President Mike Pence, various White House officials, and the Federal Bureau of Investigation (FBI) that the subject was not mentioned. The FBI’s FD-302—the form that agents use to summarize interviews—notes,
The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which the expulsions were discussed, where FLYNN might have encouraged KISLYAK not to escalate the situation, to keep the Russian response reciprocal, or not to engage in a “tit-for-tat.” FLYNN responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” (Federal Bureau of Investigation, 2017.)
Long story short, Flynn’s (incorrect) insistence that he had not pushed Kislyak to avoid retaliatory action led to Flynn’s dismissal from the White House and his prosecution by Special Counsel Robert Mueller. Mueller secured a guilty plea from Flynn for lying to the FBI on 30 November 2017 (Shear & Goldman, 2017).
POLITICO’s synopsis of Flynn’s plea notes, “Flynn admitted lying about his contacts with the Russian ambassador and about the Trump transition team’s efforts to influence a United Nations vote condemning Israel. Flynn also admitted to making false statements in filings submitted to a Justice Department office about his work on a Turkey-related advocacy project during the Trump campaign, although that was not a part of the formal criminal charge” (Gerstein, 2020).
In normal times, a guilty plea would mark the end of the DOJ’s involvement with the perpetrator of a crime: Flynn apparently committed a serious offense—lying to the FBI—and formally declared his guilt. However, we are in decidedly abnormal times. In the past two-and-a-half years, Flynn has deposed his initial counsel, tapped a Pitbull of a former federal prosecutor (Sidney Powell) to serve as his new defense attorney, and uncovered key details regarding the FBI’s investigation of his Russia ties, with the help of U.S. Attorney Jeffrey Jensen. This information has given America—and Flynn—a much clearer picture of the FBI’s investigative strategy, and it has led Flynn to renounce his guilty plea.
It is important that we scrutinize the Flynn developments one by one, making sure to assess those that were in the public domain as well as those that were uncovered by Flynn’s counsel. The four questions that will be considered by this analysis are: Was the guilty plea spurious? Was the investigation into Flynn an attempt to manufacture a crime? Did Flynn actually lie to the investigators? Was the investigation into Flynn tainted by political bias?
Was Flynn’s Guilty Plea Spurious?
It has emerged that Lieutenant General Michael Flynn’s guilty plea was not as much of a profession of guilt as it was a protection policy for the retired lieutenant general and his family. About a week after Flynn entered his plea deal, Foreign Policy published a Lawfare piece that noted,
The reason is the plea’s narrowness compared to the astonishing swath of public allegations of potentially criminal conduct on Flynn’s part. Reputable newspapers had reported Flynn’s failure to register under the Foreign Agents Registration Act, failures to disclose foreign contacts as required on his security clearance forms, large transactions with foreign actors, involvement in a strange influence-peddling scheme over nuclear plants, and even involvement in a kidnapping plot. Press accounts have indicated that Flynn’s son Michael Flynn Jr. also had exposure and that protecting his son was a priority for the elder Flynn. Yet the plea itself was limited. It was only one count for a set of false statements to the FBI. (Hennessey & Wittes, 2017; emphasis added.)
The essential detail is that Flynn was aiming to protect his son, a “a priority for the elder Flynn.” Flynn’s preservative instincts may have pushed him to accept responsibility for a crime he did not commit or believe he had committed.
The authors also suggest that Flynn was motivated by his desire to avoid a litany of legal prosecutions on a potpourri of charges. This is supported by other reporting on the special-counsel prosecutions, which found that Special Counsel Robert Mueller, among other things, “appear[ed] to be relying on an obscure 218-year-old law [the Logan Act] to apply pressure to officials in pursuit of a broader investigation into Russia's interference in the presidential election” (Scannell, 2017).
Later in the Foreign Policy article, the authors include a quote from former U.S. Attorney Preet Bharara, a Trump critic. Bharara said, “I tend not to think it’s the case that [Mueller] just wiped the slate clean with Michael Flynn … I just don’t buy it. … There’s a decent reason for thinking that [false statements are] all that Mueller has at this point” (Hennessey & Wittes, 2017). Bharara’s sentiments are logical: If Flynn was engaged in a litany of crimes, it would defy common sense for Mueller to pursue Flynn on the least serious charge available.
If Bharara is correct, Flynn made his guilty plea based on the threat of prosecution on miscellaneous charges that would have floundered in a court of law. This is legitimate prosecutorial practice, but it challenges the narrative that Flynn must be guilty because he pled guilty.
Was Flynn’s Crime Manufactured?
There have been disturbing revelations about the intentions of the FBI in investigating Lieutenant General Michael Flynn. Since the lying-to-the-FBI charge was the only one that Special Counsel Robert Mueller could realistically bring against Flynn, it becomes increasingly essential to scrutinize these discoveries, which were made public by U.S. Attorney Jeffrey Jensen.
After the 2016 election, discussion was rife in the FBI regarding why and how to secure an interview with Flynn. On 21 January 2017, FBI Agent Peter Strzok emailed Edward William “Bill” Priestap, then the assistant director of the FBI Counterintelligence Division, and recommended a “defensive briefing or interview” with Flynn unless precluded from doing so by the White House. Someone—perhaps a superior—responded to Strzok in the affirmative and declared a need to “debrief or interview” Flynn (Federal Bureau of Investigation, 2017). We can say “perhaps a superior” is because after that email in the affirmative—sent on 22 January 2017—the FBI started sketching out its plans for interviewing Flynn.
On 23 January 2017, FBI lawyer Lisa Page emailed Strzok (and someone else, who is redacted) a question: “Could the admonition” that it is a crime to lie to the FBI “be given at the beginning of the interview? Or does it have to come following a statement which agents believe to be false?” Then, Page added, “It seems to be if the former, then it would be an easy way to just casually slip that in. ‘Of course as you know sir, federal law makes it a crime to…’” (Department of Justice, 2017). Page wanted to let down Flynn’s guard by making the mention of the criminal statute against lying to the FBI—Title 18, § 1001—a casual suggestion. As you will see, the agents eventually obliged for a position even more extreme than Page’s: Completely neglecting to remind Flynn of § 1001.
The next email released by Jensen is from Strzok to several redacted individuals (one person who is carbon-copied—FBI General Counsel James A. Baker—is not redacted). Strzok writes, “[F]or DD’s consideration about how to answer in advance of his call with Flynn:” and then lists a dozen questions Flynn could potentially ask (Department of Justice, 2017). “DD” stands for deputy director—as in Andrew McCabe, who was tasked with scheduling the interview with Flynn (Defendant's Memorandum in Aid of Sentencing, 2018).
Among the potential questions for McCabe are “[a]m I in trouble?”, “[a]m I the subject of an investigation?”, and “[d]o I need an attorney?” (Department of Justice, 2017). This is speculation, but the fact that Strzok suggested such queries as fodder for “consideration” seems to indicate that he did not want McCabe to give Flynn a straight answer to any of them—Strzok did not want to worry Flynn at the expense of an unguarded, candid, and perhaps incriminatory interview.
The biggest revelation from Jensen’s latest release is a piece of note paper drafted by “EP” (i.e., Assistant FBI Director E.W. “Bill” Priestap) and dated 24 January 2017. It is a summary of an internal discussion regarding the game plan for the Flynn interview, with a section indicating McCabe’s strategy (header: “DD”) and another with plans for the interview (header: “Afterwards”). Frustratingly, about a quarter of the document is redacted, but what is available is expositive enough.
The planning process for the interview is particularly startling. Priestap poses a question, “What’s our goal?”, and transcribes just one answer: “Truth/Admission or to get [Flynn] to lie, so we can prosecute him or get him fired?” Afterwards, Priestap’s notes are centered around whether the FBI should present Flynn with the transcript of the Kislyak call before they quiz him on a month-old call.
Priestap initially notes, “We regularly show subjects evidence, with the goal of getting them to admit their wrongdoing,” but he closes with a different approach: “Or, if [Flynn] initially lies, then we present him [redacted] + he admits to it, document for DOJ, + let them decide how to address it” (Department of Justice, 2017). The goal of the FBI interview, at least according to Priestap, was to create something for the DOJ to “address.” (For reference, the redacted patch takes up about the same amount of space as the word “transcript.”)
Under the header “DD,” Priestap outlines the objectives for the Flynn interview: (1) “to resolve case” of Flynn and the Russians and (2) “to determine if Mike Flynn is going to tell the truth” regarding “his relationship w/Russians.”
Compare these goals with the pretenses under with McCabe secured the interview with Flynn: He phoned Flynn’s secure phone at the White House and commenced with a discussion of “a security training session the FBI had recently conducted at the White House.” It was only afterwards that he “stated that he ‘felt that [the FBI] needed to have two of our agents sit down’ with General Flynn to talk about his communications with Russian representatives” (Defendant's Memorandum in Aid of Sentencing, 2018). In a 24 January 2017 memorandum cited by Flynn’s counsel, McCabe recounted the conversation:
I explained that I thought the quickest way to get this done was to have a conversation between [Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants. (Defendant's Memorandum in Aid of Sentencing, 2018.)
McCabe said that the FBI wanted to have “two of [its] agents sit down” for a “talk” about Flynn’s communications—all without an attorney for Flynn. The latter point suggests that Flynn was expected to believe he was not in legal jeopardy, which is contrary to one of the Priestap-transcribed objectives: “to resolve [the] case” of Flynn and the Russians (Department of Justice, 2017). How can a case be resolved if the principal does not know he is under investigation, rendering him unable to present exculpatory information?
The agents dispatched by McCabe—Strzok and an unnamed accessory—arrived at 2:15pm to find a “relaxed and jocular” Flynn who “clearly saw the FBI agents as allies,” per a 22 August 2017 FD-302. The document also notes that McCabe and FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport.” However, the FBI decided that if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used … to try to refresh his recollection. If Flynn still would not confirm what he said, … they would not confront him or talk him through it.” The interviewers executed the plan without a hiccup (Department of Justice, 2017).
The circumstances surrounding the Flynn interview provoked concern even before the recent documents were released by Jensen, disquiet that was augmented by public comments by FBI principals. The Christian Science Monitor notes, “Some legal analysts agree the agents appear to have sought to entrap Flynn, citing comments made by former FBI Director James Comey,” who told an “audience that he personally decided to send the two agents to the White House to interview Flynn – and that he decided to bypass normal protocol” (Richey, 2018). (On a side note, it is possible that Comey was redacted superior who allowed Strzok to pursue Flynn for a “debrief or interview.”)
According to the Monitor, Comey’s words were: “If the FBI wanted to send agents into the White House itself to interview a senior official, you would [normally] work through the White House counsel and there would be discussions and approvals. I thought, it’s early enough, let’s just send a couple guys over” (Richey, 2018).
The Strzok emails, the Priestap notes, the 22 August 2017 FD-302, and the Comey comments converge to demonstrate a disturbing exercise of FBI power. The bureau took advantage of the naiveté of an infant administration to schedule a casual interview with a man who, unbeknownst to him, was a principal in an investigation. This strategy crystallizes what we could call the Flynn standard: the practice of not telling the subject of an investigation that he is under investigation, and proceeding to deploy FBI agents against him to coax him into committing a procedural crime—all with the goal of prosecuting him or getting him fired. This is a personal opinion, but the Flynn standard appears to be incompatible with the goals of law enforcement and the U.S. justice system.
Granted, Flynn played fast and loose with the truth in the interview, but as we will examine in the next section of this analysis, Flynn’s misrepresentations are not tantamount to a material fabrication.
Did Flynn Lie to the FBI?
It has come into doubt whether Lieutenant General Michael Flynn lied, and whether it would be criminal even if he had. The first point may appear inconceivable on its face, but consider that an FBI memo from 22 August 2017 noted that the agents who conducted the Flynn interview “had the impression at the time that Flynn was not lying or did not think he was lying” (Richey, 2018). Granted, that Flynn “did not think he was lying” is not evidence that he was not lying; similarly, an agent’s “impression” is not equivalent to reality. Flynn could have very well been lying through his teeth, but critical thinking suggests otherwise.
It is important to consider the facts dispassionately and logically. Several media outlets have noted that Flynn, the former head of the Defense Intelligence Agency, would have known that his communications with Russian Ambassador to the U.S. Sergei Kislyak were being surveilled. The Christian Science Monitor notes, “General Flynn well knew that any telephone contacts with Russia’s ambassador in Washington would likely be recorded – and perhaps monitored – by US intelligence officials” (Richey, 2018).
If we are to accept that Flynn knew he was being recorded and possibly monitored, a question axiomatically follows: Why would someone who knows that a conversation has been recorded lie about that conversation to the person who has access to the recording? Perhaps Flynn is an idiot, but it is unlikely that someone would self-immolate this easily.
The more likely conclusion is that Flynn’s misrepresentations were not as intentional as they were made out to be—if they were intentional at all. According to the 24 January 2017 FD-302, when Flynn was asked if he pushed Russia not to retaliate, he responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” For any rational observer, “not really” and “I don’t remember” are not pronouncements of assuredness. However, for the DOJ, they were cause for pursuing Flynn on a lying-to-the-FBI charge.
It is also possible that Flynn’s use of phrases like “not really” was intended to “protect sensitive or classified information.” Flynn himself has suggested that his misrepresentations were the consequence of forgetfulness paired with his military-man commitment to secrecy:
I did not lie to [the agents]. I believed I was honest with them to the best of my recollection at the time. I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak … My baseline reaction to questions posed by people outside of my superiors, immediate command, or office of responsibility is to protect sensitive or classified information, except upon ‘need to know’ and the proper level of security clearance. (Gerstein, 2020.)
Additionally, even if Flynn had intentionally lied to the FBI, it is unclear whether a lying-to-the-FBI charge against Flynn would withstand the scrutiny of a jury. Title 18, § 1001 declares that it is a crime to make “any materially false, fictitious, or fraudulent statement or representation” (emphasis added). There has been debate over whether Flynn’s misrepresentations rise to the level of material falsehood, as the FBI already knew of Flynn’s communications with Kislyak and his suggestion of sanctions relief.
In a column for the Hill, Harvard Law School Professor Emeritus Alan Dershowitz makes this point with a series of rhetorical questions: “Is a lie material when the FBI already knows the truth because it has it on tape? Is it material if the only reason the FBI asked the question was not to get the subject to provide truthful information but to get him to lie?”
To reinforce his thesis, Dershowitz includes a quotation from Charles Breitel, a late judge of the New York Court of Appeals: “[W]here a prosecutor exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and substantially tailors his questioning to extract a false answer, a valid perjury prosecution should not lie.” In other words, because the Flynn interviewers knew the answers to the questions they asked of Flynn, the retired lieutenant general cannot be legitimately prosecuted for his misrepresentations—even if they were intentional (Dershowitz, 2020).
In an attempt to rebut Dershowitz’s point, former U.S. Attorney Chuck Rosenberg suggests the Justice Manual, which says, “[T]he test for materiality under [Title 18, Section] 1001 is not whether the false statement actually influenced a government function, but whether it had the capacity to influence” (Rosenberg, 2018). If Flynn knew that his communications with Kislyak were being recorded and possibly monitored, there is no way that he could have seen his misrepresentations as material falsehoods with “the capacity to influence.” Even if Flynn was intending to deceive, his rational instincts would have reminded him that the attempt would be futile given the FBI’s wealth of information.
Was Flynn a Victim of Political Bias?
There are concerns that the investigation into Lieutenant General Michael Flynn was tainted by political considerations, and that his defense was weakened by conflicts-of-interest on the part of his first set of attorneys. The immediate fodder for the former sentiment is the latest release by U.S. Attorney Jeffrey Jensen: an FBI document from 4 January 2017 and a sequence of emails and text messages sent by Agent Peter Strzok.
The FBI document examines the intentions of Crossfire Razor (i.e., the investigation into Flynn): to ascertain whether Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation.” The memo outlines the activities of the FBI—checking databases, utilizing a confidential human source (i.e., an informant), and scrutinizing travel records. However, all of this work was for naught: The FBI found “no derogatory information” on Flynn and proclaimed, “The FBI is closing this investigation” (Federal Bureau of Investigation, 2017).
The FBI left itself an opening, noting that they would “consider reopening the investigation if warranted,” and Strzok sensed opportunity. After the release of the statement-of-closure on 4 January 2017, Strzok fired off a series of messages: “Hey if you havent [sic] closed” the investigation, “don’t do it yet” (2:11pm); “Hey if you havent [sic] closed RAZOR, don’t do so yet” (2:14pm); and “Pls keep it open for now” (2:18pm). Strzok was able to maintain the investigation, and he attributed his success to “7th floor”—FBI leadership. Then, at 2:19pm, Strzok sent a message to Lisa Page, the FBI lawyer (and his paramour): “Razor still open,” a “serendipitously good” outcome. Page wrote back, “[P]hew. But yeah, that’s amazing he is still open” (Department of Justice, 2017).
Strzok’s involvement would be irrelevant if he had not been previously implicated in anti-Trump advocacy. In a chain of text messages between Strzok and Page, Trump was described as a “menace,” an “idiot,” a “loathsome human.” Furthermore, Strzok hinted at an FBI investigation as an “insurance policy” against a Trump victory (Kendall & Viswanatha, 2017). This goes without saying, but when someone with the investigative power of the FBI accepts the premise that someone else is a “menace” against whom an insurance policy is necessary, the potential for abuse is undeniable.
While comments of this nature are inherently speculative, it is odd that Strzok—who held strong anti-Donald Trump (and pro-Hillary Clinton) political opinions—was concurrently involved in the Flynn, Hillary Clinton, and Mueller probes, the most politically-charged investigations of the past five years (Kendall & Viswanatha, 2017).
Some astute news-readers may suggest that Michael Horowitz, the inspector general who probed the FBI’s investigation of potential Trump-Russia collusion, certified that “the FBI was justified when it launched the Russia probe in July 2016, and senior FBI officials weren’t motivated by political bias against candidate Donald Trump.” This is a non-sequitur, as Horowitz investigated the circumstances surrounding the commencement of the broader probe into Team Trump, not the granularities of the Flynn investigation. Moreover, Horowitz’s assertion that the FBI was justified in launching Crossfire Hurricane was qualified by his assertion of “basic and fundamental errors” whose perpetrators cannot be vindicated (Cohen, 2019).
There have also been accusations that Flynn’s attorneys—from Covington and Burling—were conflicted. It is important to unpack this allegation chronologically.
A Lawfare-Foreign Policy collaboration notes, “Reputable newspapers had reported Flynn’s failure to register under the Foreign Agents Registration Act” (Hennessey & Wittes, 2017). More precisely, Mueller investigated Flynn for “making a false statement in his filings under the Foreign Agents Registration Act (FARA) for work he had allegedly done for the government of Turkey prior to the Nov. 8, 2016, election.” Covington and Burling had “assisted Flynn in preparing the allegedly false FARA filings,” “potentially implicat[ing them] along with the client”—Flynn (Gordon, 2020).
However, if the false statements on the FARA registration are the handiwork of the client, his attorneys cannot be held liable. This gives the attorneys a perverse incentive to establish their own client’s guilt. Nonetheless, Covington and Burling maintained their status as Flynn’s counsel and negotiated a plea deal in which Flynn “effectively admitted to … making a false statement in his FARA filings,” though he did not officially plead guilty on that charge (Gordon, 2020).
The accuracy of Flynn’s guilty plea notwithstanding, it assisted Covington and Burling because it put the onus of the FARA issues on their client instead of the firm, a conflict that “should have precluded Covington from representing Flynn in entering this guilty plea as it is structured.” This conflict-of-interest is why Flynn ultimately switched out Covington and Burling for Sidney Powell, and Powell is now claiming that Flynn did not “willfully and knowingly” lie in the FARA filings (Gordon, 2020). Powell also intimates that Flynn was denied the Sixth Amendment right to counsel “because he was not adequately represented by his legal team during the negotiation process” (Jurecic & Wittes, 2020).
Flynn’s Next Steps
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, 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).
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.