After years of legal battles and highly-publicized feuds between the U.S. Department of Justice (DOJ) and the White House, the investigation into former National Security Advisor and Trump ally Michael Flynn has come to an end. On May 7, DOJ prosecutors filed a Motion to Dismiss the agency’s Criminal Information against Flynn, stating that, “based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.”

The DOJ’s decision to drop Flynn’s case surprised many who had followed the case since its inception, particularly since Flynn had pled guilty following the government’s investigation. He subsequently sought to withdraw his plea; and, in its Motion to Dismiss, the DOJ states that while Flynn pled guilty to one count of “making false statements,” his plea was insufficient to support prosecution for a violation of the statute in question, 18 U.S.C. Section 1001(a)(2).

The unprecedented decision to drop the case against Flynn raises several complicated questions: What led the DOJ to its decision to drop the case, which some commentators have suggested violates the rule of law? Since Flynn’s guilty plea is effectively being ignored, what does this mean with regard to the information he provided to the Federal Bureau of Investigation (FBI) on 19 previous occasions? What does the DOJ’s decision mean for the other pending and adjudicated cases that relied, at least in part, on information that Flynn supplied to the FBI? What will happen in future cases in which FBI investigators obtain incriminating statements in interviews that are “untethered to” (in the words of the DOJ) an investigation into the person who makes those statements?

Many of these questions are likely to remain unanswered, at least for the foreseeable future. However, there are still several important lessons that can be learned, and it is imperative that we examine how the DOJ’s decision will reverberate far beyond the Flynn prosecution.

Trying to Make Sense of the End of Michael Flynn’s Federal Case

Federal criminal cases are not often dropped once the defendant enters a guilty plea. From the amount of resources that go into prosecuting federal cases to the fact that the plea itself must be made under penalty of perjury, there are a multitude of reasons why this scenario is extremely rare. However, this only scratches the surface of the anomalies in Michael Flynn’s case.

At this point the specific reason why the DOJ chose to terminate the case is unknown. However, as always, speculation runs rampant. Some have suggested that there must have been significant failures that would have led to an embarrassing acquittal at trial. Perhaps prosecutors committed an egregious violation of Flynn’s constitutional rights, or perhaps the DOJ went against its own policies or guidelines, and allowing this to be exposed would have harmed the department’s reputation and compromised future prosecutions if brought to light. Maybe it was all of the above.

Or, maybe there is something to the fact that Flynn’s case was dropped after politically appointed prosecutors got involved. This, too, has been the subject of widespread speculation. Was the decision not to prosecute Flynn purely political? While some people may already be convinced, the practicalities of the situation would seem to suggest otherwise.

A politically-motivated decision to drop a criminal charge against one of the President’s former allies would not just stain the reputations of the prosecutors involved, but it would call into question the legitimacy of the entire U.S. Department of Justice. If the nation’s top law enforcement agency cannot be trusted, then who can? While dropping a case to earn short-term political favor may seem plausible when viewed in isolation, the idea that one of our nation’s most-trusted institutions has been corrupted requires far more assumptions than it is reasonable to make.

Considering the Implications of the DOJ’s Decision Not to Prosecute Flynn

Another set of questions that arises out of the sudden end to Michael Flynn’s criminal case has to do with what the DOJ’s decision means for other cases in which the courts have made decisions (or have been asked or may be asked to make decisions) based upon testimony provided by Flynn. If Flynn’s guilty plea is immaterial, and if the FBI’s interview of Flynn was not “conducted with a legitimate investigative basis,” then can any of his statements be used in support of federal criminal prosecutions? If defendants in other cases were provided with copies of Flynn’s interview notes but not the exculpatory notes of the FBI agents who interviewed him, what does this mean for the outcomes of those cases?

Until now, one of the biggest questions to arise out of the Flynn case was: Against whom did Flynn testify behind closed doors? Now, however, the relevance and admissibility of Flynn’s testimony itself has been called into question, and this presents a much bigger issue.

Rule 410 of the Federal Rules of Evidence sheds some light on the potential implications of the Flynn case, although the unique circumstances do not allow for a clear resolution. Under Rule 410, “In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn . . . .” Rule 410 effectively codifies the U.S. Supreme Court’s decision in the case of Kercheval v. United States, 274 U.S. 220, 224 (1927), in which the court held that a guilty plea “ceased to be evidence” as soon as it was withdrawn.

If Flynn’s guilty plea cannot be used against him, does it stand to reason that his statements implicating others cannot be used either? Is the principle underlying Rule 410 even pertinent at all? Flynn attempted to withdraw his guilty plea, but the DOJ moved to dismiss his case before his plea was formally withdrawn. Furthermore, Rule 410 and the Kercheval case are both specific to guilty pleas. From this perspective, it seems that Flynn’s statements against others would still be admissible, although the unprecedented circumstances of the case still leave much to be determined.

Would the Circumstances of Flynn’s Prosecution Support an Entrapment Defense?

What would have happened had Flynn’s case gone to trial? We will never know the answer, but one question that was already being discussed – and that remains pertinent for future prosecutions – was whether Flynn would be able to assert the defense of entrapment.

Following the dismissal of Flynn’s case, Matthew Whitaker, former Acting Attorney General, stated publicly that the FBI’s goal, “to try to entrap General Flynn,” was, “unfortunately one of the many examples of the culture that Jim Comey created at the FBI.” Recently discovered notes also suggest that FBI investigators may have been instructed to “get [Flynn] to lie.”

Of course, entrapment is a complete defense to criminal prosecution under federal law. As summarized in the DOJ’s Criminal Resource Manual, the defense of entrapment has two elements: “(1) government inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct.”

Whether the FBI’s efforts to induce Flynn to lie, if any, are sufficient to support an entrapment defense – and whether Whitaker was using the term “entrapment” in its pure legal sense – are open questions, although it appears relatively unlikely that an entrapment defense would have been successful. Entrapment requires more than a targeted line of questioning, and attempting to catch someone in a lie falls far short of the standard required to prove entrapment. Additionally, as a retired U.S. Army lieutenant and former National Security Advisor, there seem to be serious questions as to whether FBI investigators could so overpower his will as to coerce him into committing a federal crime.

But, what if Flynn was the victim of a gross abuse of authority? What if he had been convicted and his investigation truly was, as alleged by the DOJ and the White House, illegitimate and politically motivated? Would either of these provide defenses; and, if so, what would it take to prove them? These are novel issues that have been sidestepped for the time being, and which would lead to an unprecedented trial if taken to court in a future case.

Conclusion

The investigation and prosecution of Michael Flynn and the U.S. Department of Justice’s sudden reversal after more than two years of effort shocked seemingly just about everyone, and the resolution of the Flynn’s case through the DOJ’s filing of a Motion to Dismiss raises more questions than answers. Liberals and conservatives alike have found fault in the government’s approach, and pundits from both sides of the aisle are demanding answers that will, most likely, never come.

“What might be the end of the FLYNN case, looks more and more like the beginning of a domino effect—possibly affecting pending and past defendants against whom General FLYNN testified behind closed doors.”

Dr. Nick Oberheiden

Attorney-at-Law

The outcome of Flynn’s case presents important questions for federal prosecutors, defense lawyers, and judges as well. Will the case prove to be a historical footnote to the Trump presidency, or will it impact prosecutions related and unrelated to the FBI’s investigation in which Flynn provided closed-doors testimony? At this point, it seems, only time will tell.

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