Judge formally dismisses Flynn case but says pardon doesn’t make him innocent

A federal judge on Tuesday agreed to dismiss the case against Michael Flynn following President Trump’s pardon of his former national security adviser but in a parting shot at the administration said the grant of clemency does not mean Flynn is innocent of lying to the FBI.

U.S. District Judge Emmet Sullivan granted the Department of Justice’s (DOJ) motion to dismiss the case as moot following the pardon in a 43-page decision that took issue with Flynn’s conduct in the case as well as prosecutors’ sudden to decision in May to drop charges against one of the president’s allies.

“The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one,” Sullivan, who was appointed by former President Clinton, wrote. “Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot. However, the pardon ‘does not, standing alone, render [Mr. Flynn] innocent of the alleged violation.'”

Trump’s pardon late last month came as Sullivan was deliberating whether to grant the DOJ’s surprising reversal in the case.

Flynn had pleaded guilty in 2017 to lying to the FBI about his conversations with Sergey Kislyak, then the Russian ambassador to the U.S. Flynn later proclaimed his innocence in court and sought to change his plea as he was set for sentencing earlier this year.

In his opinion on Tuesday, Sullivan took shots at Flynn’s new explanation of the events at the heart of the indictment and said Trump’s intense running interest in the case raises questions about the DOJ’s rationale for suddenly moving to drop charges.

“With regard to Mr. Flynn’s alleged ‘faulty memory,’ Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office,” Sullivan wrote.

The DOJ said in May that it no longer had confidence in the FBI investigation that led to Flynn’s interrogation or that it could prove beyond a reasonable doubt that he had knowingly lied to investigators.

Sullivan said on Tuesday that it was a “close question” of whether he would have allowed the prosecutors to withdraw their case had Flynn not been pardoned but indicated that he was not satisfied with the DOJ’s explanation for the move.

“As explained below, the Court finds both stated rationales dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions,” Sullivan wrote.

“Where, as here, the government justifies its motion by ignoring applicable law to now question the strength of its case, substantial doubt arises about the government’s stated reasons for seeking dismissal,” the judge added.

Sidney Powell, Flynn’s attorney who is also helping to lead a legal effort seeking to overturn President-elect Joe Biden’s electoral win, did not immediately respond when asked for comment.