A closer look at Michael Flynn’s reversal of legal fortune

After a three-year-plus legal saga involving Russia and the 2016 election, the Justice Department said it was recommending that the judge dismiss the case against former National Security Adviser Michael Flynn. 

The Justice Department made its request in a filing signed by U.S. Attorney Timothy Shea, shortly after the original line prosecutor, Brandon Van Grack, withdrew from the case. The filing said that a key interview of Flynn did not have "a legitimate investigative basis" and therefore the department does not consider Flynn’s statements from the interview to be "material even if untrue." 

Flynn had held conversations with senior Russian officials about lifting sanctions on Russia then denied to federal law enforcement that those conversations had taken place. 

Trump praised the developments in the Flynn case, telling reporters in the Oval Office that Flynn "was an innocent man. He is a great gentleman."

It will now be up to the judge, Emmet Sullivan, to decide whether to grant the government’s request that the case be dismissed in a way that it cannot be revived in the future.

The Justice Department’s decision to reverse course on a prosecution that had already produced a guilty plea stunned legal experts.

"It is very unusual to dismiss a case after a defendant has pled guilty," said Mark Osler, a law professor at the University of St. Thomas. "I can only imagine that being justified if there is evidence that the guilty plea was coerced or the defense attorney failed in some epic way to properly inform their client, and neither of those things are at issue here. The elements of the crime were proven and agreed to by a defendant with good lawyers and no signs of coercion."

Here’s a refresher on the case and how we got here. (Read our full timeline on Flynn’s case.)

In 2016, after a 33-year Army career, Flynn gained the attention of several Republican presidential candidates, including Trump, who after his victory tapped Flynn as his national security adviser.

But just days after Trump’s inauguration, Flynn resigned amid revelations of contacts he’d had with senior Russian officials that may have addressed lifting sanctions on Russia that had been imposed by Trump’s predecessor, Barack Obama.

Eventually, Flynn pled guilty to lying to the FBI and became a cooperating witness in Special Counsel Robert Mueller’s investigation, which probed Russian election interference and possible coordination between the Trump campaign and Moscow.

The guilty plea effectively spared Flynn from prosecution for allegedly failing to disclose foreign lobbying work, and it also forestalled potential charges for Flynn’s son.

"My guilty plea and agreement to cooperate with the special counsel's office reflect a decision I made in the best interests of my family and of our country," Flynn said in 2017. "I accept full responsibility for my actions."

Flynn’s sentencing in December 2018 was delayed by Judge Emmet Sullivan, who said questions remained. "I'm not hiding my disgust, my disdain, for this criminal offense," Sullivan said.

But Flynn hired new lawyers who took an aggressive posture, seeking internal FBI memos that could poke holes in the government’s case and, eventually, a dismissal of charges. 

Flynn’s argument was bolstered by Trump, who publicly mulled a pardon for Flynn, and moves by top figures in the Justice Department.

After Attorney General William Barr asked Jeff Jensen, the U.S. attorney in St. Louis, to review the case, Jensen concluded that a dismissal of the case was warranted. Barr agreed.

In its filing, the Justice Department argued that the FBI had no basis to continue investigating Flynn after failing to find illegal acts. Flynn’s answers during the interview were equivocal, not false, and weren’t relevant to the investigation, the department said.

"A crime cannot be established here," the attorney general told CBS, saying "people sometimes plead to things that turn out not to be crimes."

Legal experts said the kind of reversal made by the Justice Department was highly unusual and represented a breach of longstanding norms.

"The Flynn case represents a new low in a troubling trend: the last-minute overruling of the assistant U.S. attorneys who do the work of prosecution based on the political will of the president and the attorney general," Osler said. "It is telling that no assistant U.S. attorneys signed the motion to dismiss."

It also sets a problematic precedent for the department, experts said, since future defense attorneys will be able to cite the Flynn case in arguing that false statements are not material to their case.

The Justice Department "completely undermines its own mission when it says the investigation was not properly predicated, contrary to the finding of its own inspector general," said Barbara McQuade, former U.S. Attorney for the Eastern District of Michigan. Flynn's alleged dealings with Russia and his lack of candor with Vice President Mike Pence, which reportedly led to his firing by Trump, "created a national security threat of blackmail against someone in a sensitive national security position. The FBI had not just a right but a duty to investigate."

Legal experts also agreed that they detect politics in the department’s decision. 

"The big takeaway is that this action is consistent with a broader pattern of how Attorney General William Barr has been running the Justice Department," said Ric Simmons, an Ohio State University law professor. "Before this administration, the Department of Justice had a long tradition of independence from the president. But in key situations, William Barr has taken actions that further the best interest of the president, rather than the best interests of the United States."

Prior examples of atypical Justice Department interventions, legal experts said, were Barr’s release of a summary of Mueller’s final report that some observers considered slanted, and the department’s overruling career prosecutors’ sentencing recommendations for Trump ally Roger Stone.

That said, the case isn’t over just yet, since the judge still has a chance to weigh in.

"You want to see whether the judge accepts this," said James Robenalt, an attorney who has extensively studied Watergate, which was something of a precursor for the Russia investigation. "I think he may not. Or at the least he will weigh in with some major criticism."