Materiality is the Key to the Flynn Impasse

By Jonathan F. Keiler

There are two aspects to the current imbroglio over the Justice Department’s attempt to dismiss the Michael Flynn case, which U.S. District Judge Emmet Sullivan so far has rejected.  The first is procedural — whether Sullivan following Rule 48(a) of the Federal Rules of Criminal Procedure must dismiss.  The second is substantive, whether the basis the government gave for dismissal is legitimate.

As is almost always the case, left and right are completely at odds on the issue. On the right the government and conservative analysts rightly point out that Sullivan’s refusal to dismiss must fail.  There is no longer any controversy between the parties.  Discretion to prosecute is an exclusively executive function in this country.  The Constitution, common practice, and existing case law all overwhelmingly support this interpretation.  Both the Supreme Court and the Court of Appeals for Sullivan’s own District (the District of Columbia) have so ruled.  Procedurally, he’s fighting a losing battle and looks foolish for it.

Legal experts on the left know this, but see Sullivan’s quixotic fight as heroic, even if he is likely to lose in the end.  Taking up the cudgel for the combative and attention-seeking jurist, any number of liberal lawyers claim that dismissal is an abuse of power, and Sullivan is right to refuse it.  They maintain that the government’s contention that Flynn’s statements to FBI agents in 2017 were not material to the underlying case (supposed Russian collusion by Trump officials) is false.

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Of the two issues the materiality one is the more interesting, and in the long term perhaps the more important.

Ultimately, Sullivan will probably be forced to dismiss the case on procedural grounds, or it will be done for him.  But if he is able to hold out, and he and his newly appointed pseudo-prosecutor John Gleeson want to contest the issue of materiality, they do so at the peril of Joe Biden’s reelection chances and former president Obama’s legacy.

The issue of materiality is essentially “Obamagate,” the scandal the left refuses to acknowledge.  Was the FBI interview of Flynn conducted for legitimate purposes of pursuing the Crossfire Hurricane investigation into alleged Russian collusion, or as a means of entrapping Flynn in a “process crime” to get him out of the way to so as not to reveal other Obama administration abuses?

What happened next is complicated, but boils down to a decision by FBI upper management (with apparent coordination with the outgoing Obama White House and over the objections of lower-level FBI agents and acting Attorney General Sally Yates), to hastily arrange an interview with Flynn without informing the incoming Trump administration.

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The purpose of this action, goes to the heart of the Flynn case, and the Obamagate allegations that the former president used the national intelligence community to spy on political opponents.

This presents a danger for the Democrats.  If Sullivan intends to hold hearing on the dismissal motion, the principle substantive issue will be whether Flynn’s statements to the FBI were material to the case.  Assuming Sullivan demands Justice Department and/or Flynn’s attorneys to prove that Flynn’s statements were not material, as the government now contends, they should have the opportunity to call witnesses in support of that contention.

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The list of potential witness is long, beginning with the FBI agents who ran Crossfire Razor who wanted to close the case, up through rogue agent Peter Strzok, his paramour FBI lawyer Lisa Page, their bosses Andrew McCabe and James Comey, and their bosses, to include Sally Yates, and her boss, Barack Obama (and sidekick Joe Biden.)

Almost all these worthies, along with National Security Advisor Susan Rice met on January 5, 2017 (just after FBI agents submitted their dismissal memorandum but before it was approved) to discuss the status of the Russian collusion probe, whether and how much to reveal to the incoming Trump administration, and almost certainly what to do about Flynn.  It’s worth noting as well that Obama who carefully nurses grudges likely held one against Flynn, whom he’d fired as head of the DIA for breaking with the President over policy.

Then shortly after that meeting, someone from the Obama administration leaked Flynn’s discussion with Kislyak to Washington Post columnist David Ignatius, appearing in print January 12.  Flynn’s interview occurred — without notification to the Trump White House — just two weeks after that.

If Democrats and the mainstream media are correct that there is no basis to Obamagate, then they should welcome hearings on the materiality issue.

Just before he was made Sullivan’s pseudo-prosecutor, Gleeson in a tendentious Washington Post op-ed argued that Sullivan

“…can appoint an independent attorney to act as a ‘friend of the court,’ ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role. If necessary, the court can hold hearings to resolve factual discrepancies.”

This might well be a case of being careful what you wish for.

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If Sullivan persists, the Justice Department and Flynn’s attorneys should take Gleeson up on his suggestion and demand Sullivan hold an evidentiary hearing on the materiality issue, then present a list of witnesses to do so, starting with the FBI agents who ran Crossfire Razor and ending with Biden and Obama.  Any of them might be justifiably called to testify if that’s where Sullivan and Gleeson want to take this.  Somehow I think at that point Sullivan would agree to dismiss the matter, but if not, let’s have at it.

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