Jurisprudence

Why the DOJ’s Dropping Charges Against Michael Flynn Is So Insidious

Donald Trump could have just pardoned Michael Flynn. This is worse.

Michael Flynn in profile as he walks away outside.
Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse in D.C. on June 24. Alex Wroblewski/Getty Images

On this week’s episode of Amicus, Dahlia Lithwick spoke with national security analyst and executive editor of Lawfare Susan Hennessey about the Department of Justice’s sudden and shocking decision to drop charges against former national security adviser Michael Flynn. Read their conversation, which has been edited and condensed for clarity, below.

Dahlia Lithwick: Will you just walk us through the zigs and zags of Michael Flynn’s actions in the transition and what he pleaded guilty to in 2017?

Susan Hennessey: This is a little bit of a strange and winding tale of the world’s briefest stint as national security adviser. The core of the issue here is that during the transition period, Michael Flynn had a phone call with the Russian ambassador, Sergey Kislyak, immediately following the Obama administration’s announcement that it was imposing sanctions and retaliation for Russian interference in the 2016 election.

And in this phone conversation, Flynn essentially says, “Don’t respond.” The implication of this is that there will be more favorable treatment when the new administration comes in. Kislyak, in fact, doesn’t respond. The Russians decide not to retaliate in response to the sanctions. The current United States government at the time is kind of scratching their heads. They were prepared for the Russians to retaliate. They want to know what happened. And so they start investigating, and they find this phone call between Flynn and Kislyak.

The FBI interviews Michael Flynn to ask about this call. They already have the transcripts, so they know what’s on it. And in the course of that interview, Michael Flynn lies. He says that he didn’t mention sanctions during this call at all. And it’s a crime to lie to federal investigators.

Fast forward to December 2017. Michael Flynn pleads guilty, admits that he lied, that he knew his statements were false at the time. And then there’s been this prolonged period of cooperation. Over the past six or eight months, Michael Flynn has changed his mind. He’s attempted to withdraw his guilty plea. He suggested that there’s been misconduct by the federal government. In the past couple of weeks, the president of the United States has suggested he might pardon Michael Flynn. And then Thursday evening, in a surprise turn of events, the Justice Department actually decided to drop charges against Michael Flynn entirely and essentially abandon the plea agreement.

It is an understatement to call it unusual for the Department of Justice to drop charges after somebody has already pleaded guilty to them. And so that leads us to where we are now with serious questions about why this course of action was undertaken at the Department of Justice and what it means about apolitical law enforcement moving forward.

A lot of folks think: What’s the difference between if Trump had pardoned him or if the DOJ just decides to drop charges? But institutionally, it’s a great big deal for the DOJ to step in here.

It is significant. There’s been a question about whether Trump might pardon people like Flynn or Paul Manafort or Roger Stone. And I would argue that were he to do so, that would be an abuse of his presidential office, an abuse of the pardon power. But it would trigger a separate set of questions and potential checks and balances.

What we’ve seen Bill Barr do a number of times is short-circuit that process. When the president was suggesting he might pardon Roger Stone, Bill Barr directed a last-minute about-face for the Department of Justice, where they suddenly recommended a much lower sentence in his case after he’d been convicted of charges. Here again, right as it seemed as though the president was prepared to pardon Michael Flynn, Bill Barr intervenes to have those charges dropped.

It might seem sort of insignificant because the outcome probably would have been the same either way, but it is significant because what Bill Barr is doing is politicizing and departing from long-standing positions in ways that will actually have significance on future cases and raise really alarming questions about the perception that the Department of Justice now functions as an organization that protects and defends the president’s friends, family, and political cronies and targets his enemies. And that of course is an incredibly alarming place for our country to find itself in.

In a weird way, this feels like Michael Flynn is sort of a vestige of an earlier time, even in the Trump era, where if you lied, and you endangered national security in so doing by putting yourself in a potentially compromised situation, everyone agreed that was bad. And now we’re in this brave new world where as long as you lie for Trump, you’re OK. And in a strange way, it makes me almost nostalgic for the good old days of 2017, where at least there was some agreement across the ideological spectrum that the Justice Department wasn’t going to bend over backward to protect Trump’s friends for lying for him. Am I too cynical?

I don’t think it’s too cynical. Look, you can have lots of good-faith criticisms about the sort of investigative and prosecutorial processes that occur at the DOJ and FBI every day. The bottom line, though, is that there’s no question that Michael Flynn is getting special and different treatments because he is a political ally of the president. And as soon as we start accepting and tolerating this notion that the law is different, depending on your status of favor with the individuals in power, that not just begins, but in some cases completes, a process of constitutional rot whereby our institutions are formally still standing—the rule of law still exists on paper, there’s still an FBI, there’s still a DOJ—but they aren’t being used for the legitimate purposes of evenhanded justice, and instead are being used as tools of favor and protection or punishment and persecution based on political standing. And that is antithetical to core American values and core values of democracy.

Listen to this episode, in which Dahlia also discusses the Little Sisters case and the telephonic Supreme Court arguments, below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.