I’ve been reading, writing, and tweeting about the Michael Flynn prosecution quite a bit lately, and I’ve been getting significant feedback from people who strongly dislike Flynn and think he’s about to get away with committing a serious crime due to sinister political machinations behind the scenes. As explained in this post, I take no strong position on Flynn’s character or whether he did or did not commit any crimes—most Americans have, so he’d be in good company. But I think many in the “lock him up” crowd are making two fundamental errors that are in urgent need of correction.
Those errors, which turn out to be inextricably intertwined, are: (1) Flynn is plainly guilty of lying to FBI agents, so the attorney general’s motives in dropping the case against him must necessarily be suspect; and (2) given the character of the defendant and the alleged crime, the Flynn case must necessarily be a poor vehicle for spotlighting the pernicious role of coercive plea bargaining in our criminal justice system—as Pulitzer-Prize-winning columnist George Will did yesterday. As explained below, these errors are momentous, and they have been embraced by many influential bloggers, law professors, and other opinion leaders who help shape public perceptions about the legal system. I hope some of them will see this post and read it in the spirit of good will with which it is offered.
The first point—that the decision to drop the Flynn prosecution must necessarily have been made for crass political reasons—appears to be based on an incomplete understanding of the evolving fact record together with uncharacteristic confidence in the integrity of a coerced plea. The essential facts are these:
Michael Flynn was charged with making false statements to FBI agents during a January 24, 2017 interview at his White House office regarding conversations Flynn had had in the preceding weeks with Russian Ambassador Sergey Kislyak. (Flynn was also charged with making false statements in connection with certain filings under the Foreign Agents Registration Act, but I’ll put that to one side for now; among other things, Flynn never pleaded guilty to those crimes, and DOJ’s attempt to prosecute another high-profile figure, Gregory Craig, for similar violations failed miserably and would likely have failed against Flynn as well.)
Represented by lawyers from the large D.C. law firm Covington & Burling (who it now appears had a serious conflict of interest), Flynn initially asserted his innocence. Crucially, Flynn’s attorneys pressed the prosecutors from the Special Counsel’s Office to turn over the memorandum of interview or “302” prepared by the agents who questioned him regarding his communications with Kislyak. Throughout November 2017, SCO prosecutors repeatedly rebuffed those requests even as they ratcheted up the pressure on Flynn to plead guilty in exchange for a recommendation of no jail time. But Flynn continued to maintain his innocence, and his attorneys continued pressing for production of the 302 and other discovery—which the government continued to withhold.
It has been reported, credibly in my judgment, that the stalemate was brought to a head when the SCO leaked to certain reporters that a guilty plea from Flynn would ensure that Flynn’s son, who was under investigation as Flynn senior’s business partner (and also happened to be the father of Flynn senior’s four-month-old grandchild) would not be prosecuted. This is the sort of despicable tactic one associates with tyrants and dictators; but to our infinite discredit, it appears to have become a routine feature of American prosecutions as well.
In any event, we do know that something caused Flynn to suddenly change his mind in late November of 2017 and agree to plead guilty to a single charge of lying to FBI agents. He signed a “statement of the offense” to that effect (along with the alleged FARA violations) on November 30, and appeared in court to enter his guilty plea—on the charge of lying to FBI agents only—the next day, December 1, 2017.
Notably, despite having pleaded guilty more than two years ago, Flynn has not yet been formally convicted of that crime because the conviction does not technically happen until the sentence is pronounced. And for various reasons, that has not happened yet.
Read the rest of this post →