Michael Flynn, a retired lieutenant general in the United States Armed Forces, was the subject of a criminal case in the United States District Court for the District of Columbia which was dismissed without any convictions in December 2020 following a presidential pardon. Flynn had accepted President-elect Donald Trump's offer for the position of National Security Advisor in 2016 and then briefly served as National Security Advisor. He pleaded guilty to one count of making false statements to the Federal Bureau of Investigation. Flynn's alleged false statements involve conversations he had with Russian Ambassador Sergey Kislyak when Flynn was incoming National Security Advisor to President-elect Trump, and Flynn agreed to cooperate with the Special Counsel investigation as part of a plea deal.
Judge Rudolph Contreras was initially assigned to the case, and he accepted the plea bargain between Flynn and Special Counsel Robert Mueller in December 2017. One week later, Judge Contreras recused himself, and the case was reassigned to Judge Emmet G. Sullivan. Sentencing was postponed several times to allow for cooperation with the Special Counsel investigation. In a sentencing hearing in December 2018, Flynn reiterated his guilty plea before Judge Sullivan, who postponed sentencing again.
In June 2019, Flynn fired his initial counsel from the firm Covington and Burling and hired Sidney Powell. Powell moved to compel production of additional Brady material and newly discovered evidence in October 2019, which was denied by Sullivan in December 2019. Flynn then moved to withdraw his guilty plea in January 2020, claiming that the government had acted in bad faith and breached the plea agreement.
In May 2020, the United States Department of Justice (DOJ) filed a motion to dismiss the charge against Flynn with prejudice, asserting that it no longer believed it could prove beyond a reasonable doubt that Flynn had made false statements to the FBI or that the statements, even if false, were materially false in regards to the FBI's investigation. Sullivan then appointed an amicus, John Gleeson, to prepare an argument against dismissal. Sullivan also allowed amici to file briefs regarding the dismissal motion.
Powell filed an emergency petition for a writ of mandamus in the Circuit Court of Appeals for the District of Columbia, asking (1) that Judge Sullivan be ordered to grant the government's motion to dismiss, (2) for Sullivan's amicus appointment of Gleeson to be vacated, and (3) for the case to be assigned to another judge for any additional proceedings. The appellate court panel assigned to the case ordered Sullivan to respond, and briefs were also filed by the DOJ and amici. In June 2020, the appeals court panel ruled 2–1 in favor of Flynn on the first two requests, and the panel unanimously rejected the third request. Judge Sullivan petitioned the Court of Appeals for an en banc rehearing, a request opposed by Flynn and the DOJ. The appellate court granted Sullivan's petition and vacated the panel's ruling. The case was ultimately dismissed as moot after President Trump pardoned Flynn.
Background Michael Flynn
Flynn is a retired lieutenant general in the United States Army who had served as head of the Defense Intelligence Agency. In February 2016, Flynn was asked to serve as an adviser to the Trump campaign. He was viewed as a major asset to the Trump campaign, which had previously struggled to find support among members of the United States Armed Forces. At one point, Flynn had even been vetted as a potential candidate for Vice President by Trump. Trump's enlistment of Flynn to his campaign also marked a clear schism between Trump's foreign policy and that of the outgoing Obama Administration; whereas relations between the United States and Russia had become strained following conflicts in Ukraine and Syria, Flynn had publicly advocated for the United States and Russia to work more closely together to combat ISIS in 2015 and had spoken at a gala honoring the ten year anniversary of the Russian state-owned television network RT. Moreover, Flynn had been publicly critical of then President Barack Obama at the time of Flynn's retirement, stating that America was now less safe from the threat of Islamic terrorism than it had been prior to the September 11 attacks of 2001. On November 18, 2016, Flynn accepted President-elect Trump's offer for the position of National Security Advisor, and Flynn was sworn in on January 22, 2017, briefly serving as the National Security Advisor under President Trump.
Opening of FBI Crossfire Hurricane investigation
On August 16, 2016, the FBI opened a case on Flynn as part of its Crossfire Hurricane investigation.Inspector General Report, December 2019, p. 2 : "On August 16, 2016, the FBI opened a fourth individual case under Crossfire Hurricane on Michael Flynn, who was serving at the time as the Trump campaign's National Security Advisor." The purpose of the investigation, code-named Crossfire Razor, was to find out if Flynn was knowingly or unknowingly "involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security" of the United States. A review of the Crossfire Hurricane investigation, done by Inspector General for the Department of Justice Michael Horowitz, was completed in December 2019. It concluded that "the quantum of information articulated by the FBI to open" the individual investigation on Flynn "was sufficient to satisfy the low threshold established by the [Justice] Department and the FBI". The review "did not find documentary or testimonial evidence that political bias or improper motivation influenced the decisions to open" the investigation against Flynn.
Contacts with the Russian ambassador, public statements about these
Flynn's history with Russian ambassador Sergey Kislyak dated to 2013; they met when Kislyak coordinated Flynn's trip to Moscow for Flynn's work with the Defense Intelligence Agency.
On December 22, 2016, Flynn, who was then the incoming National Security Advisor, urged Kislyak to have Russia oppose or delay a United Nations Security Council resolution condemning Israeli settlements in Palestine. Flynn was one of several members of the Trump transition team who contacted foreign governments to do so, including Trump himself. According to CBS News, Flynn was instructed to do so by Trump's son-in-law Jared Kushner. As reported by CNN, the Israeli government had asked the Obama administration to veto the resolution, to no avail; the Israeli government then asked the Trump transition team to influence the Obama administration to put forth a veto. On December 23, Kislyak told Flynn that Russia would not oppose such a resolution. The U.S. under the Obama administration abstained from voting, and the resolution passed.
On December 28, U.S. media reported that the Obama administration was preparing to implement retaliatory measures in response to the interference in the 2016 U.S. presidential campaign by the Russian government. President Barack Obama signed Executive Order No. 13757 on December 28, and the sanctions were announced on December 29, including the expulsion of 35 suspected Russian intelligence agents. The Trump transition team discussed the "impact" that the sanctions would have on the incoming Trump administration and feared that the sanctions would damage Russia-U.S. relations.
At the time, Flynn was holidaying in the Dominican Republic, while Trump and several of his Transition Team members were at Trump's Mar-a-Lago property in Florida. After the initial news reports about the retaliatory measures, Kislyak sent a text to Flynn on December 28, asking for a call between them. According to the Mueller Report, on December 29, Flynn sent a message to an aide, noting that Kislyak would contact him that day and that a "tit for tat" with Russia was "not good". Incoming deputy national security adviser K.T. McFarland, who was at Mar-a-Lago, informed Trump transition team members Steve Bannon and Reince Priebus that Flynn was going to talk to Kislyak that day, and McFarland and Flynn conferred by phone regarding how the sanctions could affect the foreign policy objectives of the incoming Trump administration. The Trump transition team members at Mar-a-Lago wanted to avoid Russia escalating the situation, and McFarland and Flynn "both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand", stated the Mueller Report.
After talking to McFarland, Flynn proceeded to call Kisylak. Flynn told Kisylak that "what I would ask you guys to do... make sure that you convey this... do not uh, allow this [Obama] administration to box us in, right now, okay?" Referring to the Obama administration's measures against the "current issue of the cyber stuff", including that "they're gonna dismiss some number of Russians out of the country", Flynn urged Kisylak to have Russia respond only in a "reciprocal" manner: "don't go any further than you have to. Because I don't want us to get into something that has to escalate, on a, you know, on a tit-for-tat." After Kisylak expressed concern that the Russian agencies "FSB and GRU... are sanctioned", Flynn again urged a response on "an even basis", saying "we know that we're not going to escalate this thing" and that he did not want the Russians to "shut down every embassy". After talking to Kisylak, Flynn informed McFarland about the conversation.
On December 30, Foreign Minister of Russia Sergey Lavrov declared Russia would deploy retaliatory sanctions on the U.S. However, later that day, President of Russia Vladimir Putin changed course by stating that Russia "would not take retaliatory measures" in response to the U.S. sanctions and escalate the conflict between the two nations. On December 31, Kislyak called Flynn again, where he informed Flynn that Putin had not retaliated because Putin had accepted Flynn's request. Flynn told McFarland he thought his conversation with Kislyak had made a positive impact on the situation.
The Obama administration was astonished by Russia's decision not to retaliate, while president-elect Trump publicly praised the Russian reaction. The conversations between Flynn and Kislyak had been intercepted by U.S. intelligence agencies that routinely monitor Kislyak, and The New York Times reported that Obama administration officials discovered on January2 that Flynn had spoken to Kislyak multiple times after the announcement of U.S sanctions on December 29. The Flynn-Kislyak conversation transcript was reportedly viewed by Obama advisers who had been briefed on its content by the FBI with suspicion as possibly a secret deal between the incoming team and Moscow, which could have violated the dormant Logan Act which bars unauthorized U.S. citizens from negotiating with foreign powers in disputes with the United States.
On January 12, columnist David Ignatius, writing for The Washington Post, made public that Flynn had called Kislyak on December 29, citing a "senior U.S. government official". Ignatius pointed out that this was the same day the U.S. announced the sanctions against Russia, and questioned if Flynn had said anything to "undercut the U.S. sanctions". According to the Mueller Report, the following events happened: Trump reacted angrily to the article by The Washington Post. Trump's incoming chief-of-staff, Reince Priebus, told Flynn of this, stating: "Kill the story". Flynn instructed aide McFarland to lie to The Washington Post that Flynn had not discussed the sanctions with Kislyak on December 29. McFarland knew this was false, but followed Flynn's instructions. Accordingly, The Washington Post reported the denial.