On Wednesday morning, the D.C. Court of Appeals produced an unexpected ruling in the case of former national security advisor Michael Flynn that completely ignored both appeal filed by Flynn and the arguments in the case. Instead, two members of three judge panel voted to order District Court Judge Emmett Sullivan to accept the Department of Justice’s attempt to withdraw from the case, and simply dismiss the charges against Flynn. That ruling, written by Trump-appointed Judge Neomi Rao, appeared to come out of nowhere to end Flynn’s case after months of wrangling — and it seemed completely at odds with even Rao’s own statements during hearings.
But no matter how many champagne corks popped on the right, the case is not over. Because on Wednesday evening, Judge Sullivan did not follow the order to not dismiss the Flynn case. Instead, Sullivan issued a stay of the proceedings. It seems likely that now Sullivan will file a petition that the entire appeals court rehear the case en banc. The outcome of that hearing genuinely will decide whether of not Michael Flynn ever sees consequences for his admitted crime — or for any of the crimes he committed, but got out of in his original deal with the DOJ.
In a way, you have to admire the neatness of what Trump and company are trying to do with Flynn. The list of potential charges against Flynn was lengthy enough to daunt anyone—extending beyond acting as an unregistered agent for Turkish strongman Recep Erdoğan to plotting the kidnapping of a U. S. resident and possible charges related to his communications with Russia during the Trump campaign and transition. There was also the strong possibility of charges against Flynn’s son, who had also been involved in his unlicensed activities as a foreign agent.
Flynn got out of everything in exchange for his testimony, for providing information, and for pleading guilty to a single charge of perjury—a charge to which he was, and is, absolutely guilty. That perjury charge, made in the interest of denying Flynn’s involvement in the Trump-Russia scheme, was likely the smallest of Flynn’s crimes that the FBI and the special investigation team could bring against him. But from the beginning, it was made clear that the charge, and the threat that in violating his deal, other charges could emerge, was the way in which Flynn was held to his deal.
But with William Barr in charge of the Department of Justice, and the whole Robert Mueller team sidelined or dismissed, Donald Trump has been anxious to turn Flynn’s deal into a perfect deal: Flynn gets out of everything, and pays … nothing.
When Flynn abruptly dismissed his legal team and decided to withdraw his guilty plea, the whole idea seemed ludicrous. Flynn had pleaded guilty not just once, but twice, and had gone through a series of delays in his sentencing. When Flynn squirmed in court about the nature of his deal, Judge Sullivan had reamed him thoroughly, making it clear that Flynn’s true crimes would involve much higher penalties that he was currently facing.
However, it seems absolutely clear at this point that Flynn’s action at that time was taken with coordination from Barr and Trump. Flynn abruptly changed his attorneys in January, just under a year after Barr assumed office and six months after Mueller’s departure. He then declared that he was breaking his deal and withdrawing his guilty plea. Just two days after Flynn made that change, Barr replaced U. S. Attorney for Washington D. C. Jessie Lui, with his own assistant, Timothy Shea. Two weeks later, Barr announced that the DOJ was “reviewing” its case against Flynn, and that U S. Attorney Jeff Jensen was being brought in to assist in this review, displacing attorney Brandon Van Grack who had worked with Mueller’s team.
It’s now obvious that Barr and Trump offered Flynn a pardon under another name. It’s not clear how early this scheme got underway, or what information Flynn may have withheld in the process. It’s not going to far to call this scheme a conspiracy.
In any case, Judge Sullivan appears set to throw the case back to the whole Appeals Court. And if that happens, maybe William Barr and his hand-picked crew will finally have to explain why they decided to withdraw and open-and-shut case against Michael Flynn; a case that was made as part of a deal in which more serious charges were dropped.