Yesterday was one of the more interesting and strange days in my legal pundit life. It started with an immense amount of heat (and very little light), and ended with a court order that truly stopped me in my tracks. I’d never seen anything like it. I’m talking, of course, about the continuing saga of Michael Flynn. Let’s try to make sense of it.
Early in the day, Republican senators released a list of Obama administration officials who “unmasked” Michael Flynn’s identity in intelligence reports. “Unmasking” refers to the practice of revealing the identities of American citizens who are mentioned or referred to in the course of foreign intelligence surveillance. Absent unmasking, the American might be simply called “Person 1,” and their unknown identity can hamper the ability of appropriate officials to understand the importance or context of communications.
Unmasking is incredibly common. According to the New York Times, National Security Agency officials handled almost 10,000 unmasking requests in 2019 and a whopping 17,000 requests in 2018, an average of nearly 50 each day. So when you hear that an American citizen has been “unmasked,” it’s not necessarily scandalous. In fact, it’s rarely scandalous at all—so long as government officials comply with all other applicable laws and regulations, including laws and regulations preventing the disclosure of classified information.
While it’s possible that some of the unmasking requests involving Flynn may have been unusual or improper, it’s certainly the case that leaking the substance of classified communications (including Flynn’s identity) is problematic at best and illegal at worst. I agree with my friend Quin Hillyer:
On Feb. 14, 2017, the day Flynn resigned as national security adviser, President Trump complained vociferously that “The real story here is why are there so many illegal leaks coming out of Washington?” Trump was right. Five days earlier, the Post had reported that “National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.”
The short version of Quin’s entirely correct point is simply this—the unmasking is (probably) fine; the leaking is certainly not.
So that’s it. A simple Flynn news day, right? Not so fast. Hours later, Judge Emmet Sullivan, the presiding judge in Michael Flynn’s criminal case, issued one of the most unusual orders I’ve ever seen. Rather than simply granting the Department of Justice’s motion to dismiss the case, Judge Sullivan not only appointed an attorney (a former judge and prosecutor named John Gleeson) to argue the interests of third parties who oppose the motion, he also ordered Gleeson to address whether Flynn should be held in criminal contempt for perjury:
This is a family newsletter, so I’ll merely link to my friend (and former prosecutor) Ken White’s response. But his were my sentiments exactly. No one I talked to in legal circles had ever seen an order like that. After all, even though Rule 48 of the Federal Rules of Criminal Procedure indicates that prosecutors may only dismiss a case “with leave of court,” the traditional legal standard is that it’s not the judiciary’s place to “second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges.”
So, the judge has gone rogue? Not necessarily. Not only is he responding to an unusual filing from the Department of Justice (it’s not every day that the DoJ seeks to dismiss a conviction to a crime that the defendant repeatedly confessed to committing without articulating a concrete violation of the defendant’s statutory or constitutional rights), he’s also responding to the unusual history of this case.
Judge Sullivan is not the original judge in the case. Flynn entered his guilty plea before Judge Rudolph Contreras. At that plea hearing Flynn confessed to his crime, under oath. Judge Sullivan replaced Judge Contreras on the case after Contreras recused himself, and one year after the first guilty plea, Flynn came before Judge Sullivan for a sentencing hearing.
Before the hearing, Flynn’s counsel filed a brief that called into question the FBI’s tactics in the case. While Flynn’s (since-replaced) lawyers didn’t have the benefit of all the relevant internal documents outlining the FBI’s strategy and conduct, the general facts were already known. The agents adopted a friendly posture. They didn’t advise Flynn of his right to a lawyer or that lying to the FBI was a crime. They were investigating an alleged Logan Act violation—when there hadn’t been a Logan Act prosecution in more than 150 years.
Judge Sullivan was confused—and obviously peeved. Was Flynn contesting his guilty plea? To be sure of Flynn’s intentions, Sullivan placed Flynn under oath and put him through the paces. Here are key parts of the transcript:
THE COURT: Mr. Flynn’s briefing concerned the Court, as he raised issues that may affect or call into question his guilty plea, and, at the very least, maybe his acceptance of responsibility.
As such, the Court concludes that it must now first ask Mr. Flynn certain questions to ensure that he entered his guilty plea knowingly, voluntarily, intelligently, and with fulsome and satisfactory advice of counsel.
I cannot recall any incident in which the Court has ever accepted a plea of guilty from someone who maintained that he was not guilty, and I don’t intend to start today. So I’m going to invite Mr. Flynn and his attorney or attorneys to come to the podium, and I’m going to ask the courtroom deputy to administer the oath to Mr. Flynn.
The judge then directly questioned Flynn:
THE COURT: Do you wish to challenge the circumstances on which you were interviewed by the FBI?
THE DEFENDANT: No, Your Honor.
THE COURT: Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you have any concerns that you entered your guilty plea before you or your attorneys were able to review information that could have been helpful to your defense?
THE DEFENDANT: No, Your Honor.
THE COURT: At the time of your January 24th, 2017 interview with the FBI, were you not aware that lying to FBI investigators was a federal crime?
THE DEFENDANT: I was not — I was aware.
THE COURT: You were aware?
THE DEFENDANT: Yeah.
THE COURT: Your sentencing memorandum also states that you pled guilty before certain, quote, revelations that certain FBI officials involved in the January the 24th interview were themselves being investigated for misconduct, end quote. Do you seek an opportunity to withdraw your plea in light of those revelations?
THE DEFENDANT: I do not, Your Honor.
Judge Sullivan then gave Flynn (a retired three-star general and former national security adviser) the opportunity to speak privately with his attorneys and even offered to appoint an independent attorney to speak with him alone. Flynn declined all these offers. The questioning continued:
THE COURT: Are you continuing to accept responsibility for your false statements?
THE DEFENDANT: I am, Your Honor.
THE COURT: Do you still want to plead guilty, or do you want me to postpone this matter, give you a chance to speak with your attorneys further, either in the courtroom or privately at their office or elsewhere, and pick another day for a status conference? And I’m happy to do that.
THE DEFENDANT: I appreciate that, but no, Your Honor.
Are you beginning to see why Judge Sullivan raised perjury concerns? But that’s not all. … Sullivan made it quite plain that Flynn had pleaded guilty to a false statements charge to avoid other potential charges. He could have been indicted for his Turkish lobbying efforts, which included an effort to extradite a Turkish dissident back to Turkey for near-certain execution:
Flynn was serving as an unregistered foreign agent for Turkey while he was also advising the Trump presidential campaign. Sullivan was enraged by these facts. Here was his summary of Flynn’s misdeeds:
THE COURT: Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.
Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States. I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out.
Sullivan overstated the case a bit. Flynn ceased serving as a foreign agent before he joined the White House (later in the hearing Sullivan apologized and retracted the allegation). But those words not only represent the judge’s view of the case, they also illustrate why so many of us reject the notion that Flynn has been “exonerated” by the DOJ’s decision to move to dismiss criminal charges.
The facts above do not mean that Judge Sullivan will deny the DoJ’s motion to dismiss Flynn’s case. Nor do they mean that Sullivan will hold Flynn in contempt. I still believe that Sullivan is likely to grant the DoJ’s motion—but not without letting both the government and Flynn know exactly how he feels about each party’s conduct in the case.
My newsletter Tuesday argued that many of the institutional strains of 2020 can be traced back to the immense pressure placed on those institutions by corrupt actions in 2015 and 2016. And so it is here. There is no excuse for Flynn’s decision to act as an unregistered agent of Turkey while advising a presidential campaign (nor is there any excuse for the $68,000 in fees and expenses he took from Russia-related entities in 2015). He should not have lied to the FBI (or the vice president).
At the same time, the DoJ is hardly approaching the court with clean hands. In the initial Flynn investigation, there’s evidence of internal gamesmanship and trickery combined with a classic perjury trap that snapped shut on a senior adviser to the president. The DoJ then overcompensated for its misdeeds by filing a motion to dismiss Flynn’s case that fails to grapple with the full extent of Flynn’s crimes and ultimately grants Flynn a special exemption from the law that it does not grant other defendants.
And now a federal judge is responding to extraordinary facts with an extraordinary order of his own. Stay tuned. This story is far from over.
One other thing . . .
I don’t want to dive too deeply into the masking culture wars, but I kicked up a bit of a hornet’s nest last night with this tweet:
Ok, I confess. I’m guilty of being a tad provocative. But I’m growing increasingly weary of attacks on masking on the grounds of “liberty” or even masculinity—an attack that is completely divorced from American law and tradition.
As Jonathan Last thoroughly details, there are a number of influential voices who demand to reopen America and also scorn, mock, and reject wearing a mask. I know that some masking demands are absurd (masking outside when appropriately socially distanced strikes me as unnecessary), but masking has been an important element of multiple successful strategies overseas. Moreover, it has no meaningful impact on your civil liberties, and the effort is truly de minimis.
The reason I referred to the Founders is simple—they were no strangers to coercive efforts at pandemic control, and all the way back in 1824, the Supreme Court observed in Gibbons v. Ogden that sovereign state authority includes the authority to enact “quarantine laws” and “health laws of every description.”
In fact, one of the fascinating subplots of the American revolution involved George Washington’s efforts to combat smallpox. British soldiers enjoyed a degree of herd immunity from smallpox; the American colonists (and Continental Army) did not. Smallpox was an existential threat to the revolution.
So, what did Washington do? In addition to conventional quarantining, he actually violated colonial law (which prohibited smallpox inoculation) to inoculate his entire army through a dangerous process called “variolation.” Be glad for modern medicine. Variolation required doctors to make a small incision and place pus from an infected victim inside the soldier’s arm. As Ross Pomeroy wrote in 2016, “Whole divisions were inoculated and quarantined en masse, a process that would continue for months.”
The Founders embraced quarantines. They sometimes even forced dangerous inoculations. They granted police power to the states in part to protect public health. They would be mystified by anyone invoking American liberty to justify the refusal to engage in a minimally-intrusive measure to save lives and to save the American economy.
One last thing …
Let’s go back down the YouTube documentary rabbit hole. As I note above, we’ve been fighting infectious diseases for a long, long time. And we’ve been fighting over fighting infections just as long. Did you know there was an 1858 Staten Island quarantine “war”? Indeed, there was. Watch:
Photograph of Michael Flynn by Brendan Smialowksi/AFP via Getty Images.
Please note that we at The Dispatch hold ourselves, our work, and our commenters to a higher standard than other places on the internet. We welcome comments that foster genuine debate or discussion—including comments critical of us or our work—but responses that include ad hominem attacks on fellow Dispatch members or are intended to stoke fear and anger may be moderated.
You are currently using a limited time guest pass and do not have access to commenting. Consider subscribing to join the conversation.
With your membership, you only have the ability to comment on The Morning Dispatch articles. Consider upgrading to join the conversation everywhere.