United States v. Michael T. Flynn, Crim. No. 17-232 (D. D.C.). Hearing on government’s motion to dismiss and court’s appointed amicus’ views on further proceedings to be held on September 29, 2020.
Tomorrow the federal court in the District of Columbia will hear arguments about the government’s motion to dismiss the criminal proceedings against General Michael T. Flynn, and will also hear from the court’s selected amicus.
Months ago the government moved to dismiss charges against General Flynn, asserting that the government did not wish to proceed and also asserting that any statements in issue were not material. General Flynn agreed.
Ordinarily prosecutorial determinations not to proceed are granted. In General Flynn’s case, the court itself balked, opining that General Flynn ought to be found in contempt for making false statements when entering guilty pleas for making false statements. The court hired an amicus to advise the court, General Flynn filed a petition for mandamus to the United States Court of Appeals for the District of Columbia Circuit where he initially prevailed, but later failed to obtain the writ, and the matter is again before the judge in the District of Columbia.
The United States does not believe that there exists a basis for further criminal proceedings and has, in support of its position, disclosed the unclassified and/or unprivileged portions of an official memorandum (FD-302) documenting an interview with a Federal Bureau of Investigations agent involved in investigating General Flynn.
The agent reported that his work did not disclose evidence that would support criminal charges against General Flynn. Moreover, the agent reported that those in charge of the investigation seemed determined to find a basis or bases for not only charging General Flynn but also discrediting President Trump.
The collusion collision course: the collusion, in the legal sense, sought to be substantiated is not the collusion, in the colloquial sense, that has been revealed. Not only has an agent involved in the investigation provided his statement and opinions, but the government has, at the eleventh hour, disclosed internal Federal Bureau of Investigation electronic discussions and text exchanges between the FBI’s Chief of Counter Espionage and private lawyer Lisa Page. Both the internal and external exchanges are disparaging, and the commentary between Strzok and Page exchanges vows to defeat their disfavored candidate.
Just Lawful Prognostication: The Judge assigned to this case, Hon. Emmet G. Sullivan, having recently had the blessing of the federal appellate court to go forward with examining the government’s motion to dismiss, will not take his obligations lightly.
While the government’s recent public disclosures are embarrassing, this is not a crime, nor are the opinions of a federal agent, however revealing, of the sort that control prosecutions.
Judge Sullivan is likely to proceed with caution, taking as much time as he sees fit, to issue a ruling, if any, for there is always the possibility that, having gained traction in this way once before, the judge will seek more investigation, hold more hearings, and conduct further review.