Opinion: Issue in Michael Flynn’s case isn’t leniency; it’s special treatment for a Trump pal

Michael Flynn, then-director of the Defense Intelligence Agency, testifies on Capitol Hill in 2014.
Michael Flynn testifies on Capitol Hill in 2014, when he was director of the Defense Intelligence Agency. On Wednesday an appeals court ordered that the criminal case against him be dismissed.
(Lauren Victoria Burke / Associated Press)

It looks as if the tangled tale of the prosecution of Michael Flynn has come to an end with an appeals court ruling directing a judge to dismiss the case. Congress still must investigate whether favoritism influenced the Justice Department’s decision to reverse course and seek to spare Flynn, President Trump’s first national security advisor.

Flynn, a retired Army lieutenant general, pleaded guilty in 2017 to lying to the FBI about conversations with Russia’s U.S. ambassador during the presidential transition. Among the topics discussed were sanctions imposed on Russia by the Obama administration in response to Russian meddling in the 2016 election.

Trump had sacked Flynn, explaining later that he had to fire General Flynn because he lied to the Vice President and the FBI.” But the president also has expressed sympathy for his former advisor. On Wednesday he tweeted: “Is James Comey and his band of Dirty Cops going to apologize to General Michael Flynn (and many others) for what they have done to ruin his life?”


On Wednesday, by a 2-1 vote, a panel of the U.S. Court of Appeals for the District of Columbia instructed U.S. District Judge Emmet G. Sullivan that he must immediately dismiss the case against Flynn.

Writing for the panel, Judge Neomi Rao, a Trump appointee, said that the government’s representations about the insufficiency of the evidence against Flynn are entitled to a “presumption of regularity.” Unless the entire appeals court intervenes (as it should), Flynn is home free.

As a general proposition, it’s desirable for prosecutors to be willing to change their minds. There is a concept in the law known as the rule of lenity, according to which courts err on the side of leniency when a statute is ambiguous. By analogy, prosecutors may err on the side of the defendant when new information emerges.

That is what the Justice Department claimed to be doing when it sought to dismiss the charge against Flynn. Government lawyers told Sullivan that the FBI’s interview of Flynn was “untethered to, and unjustified by, the FBI’s counterintelligence investigation” and couldn’t be proved to be “material.”

The government’s argument was extremely unpersuasive. How could Flynn’s lying about contacts with Russia not be material to an investigation of Russian meddling?

But whether the Justice Department was mistaken in its reappraisal of the Flynn prosecution is only one question. More important questions are why Flynn was singled out for such a second look and whether the outcome was influenced by his relationship with the president.


John Gleeson, a former federal judge appointed by Sullivan to contest the Justice Department’s motion to dismiss the case against Flynn, accused the department of a “gross abuse of prosecutorial power.” Gleeson added that the government “has engaged in highly irregular conduct to benefit a political ally of the president.”

Sound familiar? On Wednesday the House Judiciary Committee heard from Aaron Zelinsky, a federal prosecutor on the team involved in the case of Trump associate Roger Stone, who was convicted of witness tampering and lying to Congress. Zelinsky said he was told that the acting U.S. attorney in Washington, D.C., “was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break” in sentencing. (Atty. Gen. William Barr is expected to testify before the Judiciary Committee next month.)

It’s hard not to see a pattern here. Congress needs to be equally aggressive in investigating how and why Flynn was spared the consequences of his actions.