When Michael Flynn heads to court for his final sentencing hearing today, a lifetime of respected national service will hang in the balance on what is said and done. I am not talking about Flynn but of Judge Emmet Sullivan. There is no issue over the dismissal of the charge of Flynn lying to federal investigators. The only issue is whether, just before an election, Sullivan will use the hearing as a forum for injudicious commentary.
I have practiced law for years before Sullivan and praised him for his demeanor and record as a judge. He has served with distinction since 1994 in cases ranging from Guantanamo Bay detainees to the flawed prosecution of Ted Stevens to the emails of Hillary Clinton.
Then came the case of Flynn, who was charged with a single count of lying to federal investigators. Such a charge ordinarily would result in a short sentencing hearing. Flynn fought the charge but, after exhausting his assets and facing threats by prosecutors to target his son, he agreed to plead to one count. Even the uncooperative witness like Alex Van Der Zwaan received only 30 days in prison on a similar charge related to the investigation by former special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE.
Yet this is the third attempt at sentencing for Flynn, as what should have been the simple hearing two years ago was derailed by Sullivan himself. Both Flynn and the prosecutors believed they would have a perfunctory hearing and a likely sentence without jail time. After all, this was just one count, and Flynn pleaded guilty, then met with Mueller about 20 times as a cooperative witness. Furthermore, we know federal investigators at the time did not believe Flynn intentionally lied to them. Yet when Flynn went to court, he was given a scolding rather than a sentence.
Using the flag in court as a prop, Sullivan falsely accused Flynn of being an “unregistered agent of a foreign country while serving as the national security adviser” who sold his country out. Sullivan even suggested Flynn should have been charged with treason, then suggested he might ignore any recommendations and send Flynn to jail when he declared, “I cannot assure you that if you proceed today, you will not receive a sentence of incarceration. I am not hiding my disgust and my disdain.”
Sullivan apologized for some of his comments, but the hearing led to a critical delay. During that time, new evidence emerged that cast further doubt on the investigation of Flynn, including the material showing that FBI agents wanted to close the case in 2016 due to lack of evidence. The investigation was kept open at the insistence of fired FBI special agent Peter Strzok, who showed intense animus for President Trump.
We also know that former FBI director James Comey told President Obama that conversations Flynn had with Russians as incoming national security adviser appeared legitimate. These and other revelations correctly led the Justice Department to seek dismissal of the charge. There is an ongoing investigation and various experts, including myself, have argued that the investigation and charge in the case of Flynn were flawed.
The law on this is clear and overwhelming. Sullivan should have dismissed the charge months ago. Instead, he again took a controversial position. He not only suggested he might charge Flynn himself, with criminal conduct for contesting his guilty plea, but he hired a former judge to argue against any dismissal. Enlisting such a third party to argue for prosecution is very unusual and deeply troubling. Sullivan seemed to be claiming the right to mete out his own version of justice with a criminal charge from the bench and an outsider playing the role of another prosecutor.
Sullivan chose John Gleeson, who has spoken about the case of Flynn and is also a critic of Trump. Gleeson was reversed as a judge for usurping the position of federal prosecutors in a case that involved a bank, in which the Second Circuit knocked him for magnifying his role in a way that “would be to turn the presumption of regularity on its head.” Gleeson filed a brief calling for the court to reject the motion and order the jailing of someone who prosecutors maintained was not properly charged.
His brief was filled with heated rhetoric and attacks on the “accusation of government misconduct.” It drew a sharp rebuke from an appellate panel for relying “on news stories, tweets, and other facts outside the record to contrast the government grounds for dismissal here with its rationales for prosecution in other cases.” The appellate panel held that time was up for Sullivan in the case of Flynn because “we need not guess if this irregular and searching scrutiny will continue” as “it already has.”
After that opinion, many predicted the full appellate court would reverse, not because of any discord on the law but because Sullivan must be given the chance to do the right thing. He had not made a final ruling and, while making note of the clear law in this issue, the panel should not have taken that decision away from him. There remains no doubt as to the outcome of this case. Sullivan either will dismiss this charge or be reversed by the same court that sent it back to him for a final ruling.
But as if determined to prove the panel right, Gleeson responded with another brief arguing the government position is evidence of “a corrupt and politically motivated favor unworthy of our justice system." Gleeson still is arguing against overwhelming case law and advocating a certain reversal for Sullivan by convicting a person of a federal crime who the government maintains was improperly charged.
That is why the reputation of Sullivan instead of Flynn is at stake in this hearing. He can follow the law dispassionately and dismiss this charge without gratuitous commentary. Or he can use the hearing to lash out at the administration and the defendant just before an election. Many of us have already criticized the handling of this case. Others were thrilled by the comments from the bench. Those who reversed the panel did not do so in approval of handling of the case or prior orders.
Their opinion was a model of objective analysis, citing the need for a final ruling from Sullivan regardless of the controversies. I respect Sullivan and hope he brings an end to this cathartic record which has lasted two years. The law here is clear, and it is time for a decision that was never in serious doubt. It is time to dismiss the criminal case against Flynn.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.