Judge takes final shots at Trump, Flynn as he agrees to dismiss case

WASHINGTON — The federal judge overseeing the case against Michael Flynn formally dismissed the charges Tuesday but ended up having the last word — calling President Donald Trump's pardon of his former national security adviser "extraordinarily broad" and saying it doesn't mean he's innocent.

Flynn was charged with lying to the FBI in 2017 in a case brought by special counsel Robert Mueller and twice pleaded guilty in open court. He then sought to withdraw his guilty plea related to contacts with the Russian ambassador, and the Justice Department moved to dismiss the case.

Federal District Court Judge Emmet Sullivan said before the pardon was issued that he had the legal authority to proceed to sentencing, despite the Justice Department's motion to abandon the prosecution. Whether the judge had that authority is a question left unresolved by the case, but Sullivan said Tuesday that federal rules give judges discretion in deciding whether letting the government drop a case would be in the public interest.

As for Flynn, the judge said many of the Justice Department's reasons for walking away from the prosecution seemed to be a pretext "particularly in view of the surrounding circumstances" — namely that Trump "has not hidden the extent of his interest in this case." As for the government's actions late in the case, these facts "raise questions regarding its motives in moving to dismiss."

Sullivan said DOJ's main justification — that Flynn's lies to the FBI were not material to any open investigation — is a "newly minted definition of materiality." He said the government was wrong to suggest that in order for that to count as a violation, a false statement must be reasonably likely to influence proceedings.

"That is not the law," Sullivan said. The question is whether Flynn’s statements were capable of affecting the FBI's general functions. He suggested this definition was tailor-made by DOJ for this case.

The government also said it wasn't clear that Flynn really was lying and instead was relying on a 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 undermines the policy of the sitting President prior to the President-elect taking office," Sullivan wrote.

The judge also said, citing past Supreme Court decisions, that acceptance of a pardon implies an admission of guilt and that while a pardon eliminates any punishment, it "does not, standing alone, render (Mr. Flynn) innocent of the alleged violation."