Flynn Redux: What Those FBI Documents Really Show

Over the last few days, the president’s supporters have taken a brief break from COVID-19, the economic collapse, and the 2020 presidential campaign to fixate anew on the case of General Michael Flynn.

You remember Mike Flynn—the former head of the Defense Intelligence Agency who set a land-speed record for time between appointment as national security adviser and scandal-induced resignation.

Why the sudden interest in the Golden Oldies of the Trump scandals? The reason is the release of some documents from inside the FBI dealing with Flynn’s original interview by agents from the bureau, back from the period when the Trump administration was just coming into power. Flynn’s sentencing on his guilty plea for lying in that interview has been serially delayed. According to some commentators, the documents supposedly show that he was somehow set up, framed, or entrapped. A lot of people seem to be expecting his sudden vindication. And a lot more people, some of whom should know better, seem remarkably credulous of Flynn’s new claims.

They should take a deep breath.

The president may well pardon Flynn, as he has long hinted. It’s possible—though for reasons we’ll explain, we think unlikely—that Judge Emmet G. Sullivan will allow Flynn to withdraw his plea. And it’s possible as well that Attorney General Bill Barr, who has already intervened in the case once before and has asked a U.S. attorney to review its handling, will intervene once again on Flynn’s behalf.

So far, however, nothing has emerged that remotely clears Flynn; nothing has emerged that would require Judge Sullivan to allow him to withdraw his plea; and nothing has emerged that would justify the Justice Department’s backing off of the case—or prosecuting it aggressively if Flynn were somehow allowed out of the very generous deal Special Counsel Robert Mueller cut him.

We have put this post together in an effort to cut through a lot of the disinformation floating around about the Flynn case. We proceed in several distinct steps. First, we offer a procedural history of the case’s recent machinations—how we got to where we are, what the parties are fighting about, and how these documents came to be public. Next, we examine the applicable law that governs the matters at issue. We then turn to what’s in the documents and how they interact with the legal standards. Finally, we offer some thoughts and analysis of where things are likely to go from here.

Sentencing Flynterrupted

Flynn pleaded guilty to lying to federal investigators in December 2017. By December of the next year, the government was ready to go forward with sentencing, as Flynn had completed his cooperation with the special counsel’s office. But Flynn still hasn’t been sentenced.

The story is a long one—but the main reason is that in June 2019, Flynn fired his longtime lawyers from Covington & Burling, who had seen him through his guilty plea in November 2017. Instead, he hired Sidney Powell—a lawyer who had been sharply critical of the Mueller investigation—and proceeded to back away from his plea and subsequent affirmation of wrongdoing before the judge, with Powell arguing that Flynn had been “ambush[ed]” by FBI agents aiming to “trap … him into making statements they could allege as false.” In January 2020, Powell filed two motions directly attacking the case against Flynn: a motion to dismiss her client’s prosecution “for egregious government misconduct,” and a motion to withdraw his guilty plea.

The government responded to Powell’s first motion by arguing that the actions alleged by Powell—including errors made by the Justice Department and FBI concerning the Carter Page FISA applications, as documented by the Justice Department inspector general—do not amount to the “egregious government misconduct” necessary to dismiss the case. In order to respond to the second motion, the government requested access to documents from Covington concerning Flynn’s case: Powell asserts that Flynn should be able to withdraw his plea because he was not adequately represented by his legal team during the negotiation process, and the government wants the relevant material from Covington in order to evaluate Flynn’s claim. Flynn waived his attorney-client privilege with his Covington team with respect to his ineffective assistance of counsel claims, which are predicated on alleged conflicts on the part of the firm.

On the order of Judge Sullivan, Covington began producing documents to the government—essentially, sharing with the government material that it had already provided to Powell when it handed off Flynn’s representation. As part of the firm’s review, it discovered “emails and two pages of handwritten notes” concerning Flynn’s case that mistakenly had not been shared with Powell when Covington had transferred its case file to her after the change in Flynn’s representation. Covington informed the court of its discovery of the materials on April 9 and passed them to Powell.

(Two weeks later, on April 28, the firm notified the court that it had discovered roughly 6,800 additional documents and emails that had not been transferred to Powell. For comparison, by its own estimation, Covington provided about 663,000 documents to Powell when the materials were first handed off. Judge Sullivan has since ordered the firm to review its entire case file to make sure there are no lingering materials that have yet to be provided to Flynn’s new defense team. This second batch of additional material is not important for the rest of the rest of the story we’re about to tell, but it’s useful context. Notably, presumably because of the need to review the documents provided by Covington, the government has not yet filed a reply to Powell’s motion to withdraw her client’s guilty plea.)

Meanwhile, Powell was about to receive another tranche of documents from a different source: Jeffrey B. Jensen, the U.S. attorney for the Eastern District of Missouri. In January 2020, Attorney General William Barr appointed Jensen to review Flynn’s prosecution—an unusual move in line with Barr’s appointment of Connecticut U.S. Attorney John Durham to conduct a similar review of the Russia investigation as a whole. Many commentators, ourselves among them, have criticized Durham’s probe as an apparent effort by Barr to cast the legitimacy of the Mueller investigation into doubt, and Jensen’s review is open to similar criticism as part of the same effort.

On April 24, the government filed a letter with the court announcing Jensen’s review and indicating that he was sharing unspecified, sealed documents with Powell “as a result of this ongoing review.” That same day, Powell filed a supplement to her motion to dismiss for government misconduct, pointing to two sets of documents: one set of emails from the Covington production, and one document, under seal, from Jensen. Powell wrote that the Covington emails show “misconduct” by Brandon Van Grack, the lead prosecutor handling Flynn’s case, and that the material from Jensen “prove[d] Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI.”

Five days later, on Judge Sullivan’s orders and without the government’s objection, the Jensen document—containing a handful of emails and a page of notes from FBI officials about the investigation into Flynn—was filed on the public docket. This is what caused the first burst of renewed interest in the Flynn case among the president’s supporters in recent days.

Also on April 29, the government filed another letter indicating that Jensen had passed more material to Flynn’s team. Powell followed the same playbook as last time, filing a supplement to her motion to dismiss for government misconduct and attaching redacted copies of the documents shared with her by Jensen. This material contains further correspondence within the FBI about Flynn’s case.

Flynnterpereting the Actual Law

At least in court—the domain in which he is apparently fighting—Flynn’s argument turns on two bodies of law. His claim that the entire case should be dismissed because of “outrageous government conduct” stems from a 1973 Supreme Court case, U.S. v. Russell, which held out the possibility that a court “may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to  obtain a conviction.”

The Justice Department summarizes the defense as follows in the Criminal Resource Manual:

The Supreme Court has never held that the government’s mere use of undercover agents or informants, or the use of deception by them, gives rise to a due process violation, although in Russell it left open that possibility. The requisite level of outrageousness could be reached only where government conduct is so fundamentally unfair as to be “shocking to the universal sense of justice.” Id. at 432. No court of appeals has held that a predisposed defendant may establish a due process violation simply because he purportedly was induced to commit the crime by an undercover agent or informant. See, e.g., United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir.) (not outrageous for government “to infiltrate an ongoing criminal enterprise, or to induce a defendant to repeat, continue, or even expand criminal activity.”), cert. denied, 115 S. Ct. 347 (1994).

Notably, the Supreme Court in positing the defense in Russell, denied that it precluded prosecution in a situation in which agents had literally given the defendant hard-to-obtain ingredients for illegal drugs. And as the U.S. Court of Appeals for the Tenth Circuit put it in 1992, “The stringent nature of the test is demonstrated by the fact that although the defense has been raised many times, in only a small handful of those cases has the government’s conduct actually been held to be outrageous.”  The successful invocation of the defense has generally involved, the Tenth Circuit explained, either substantial government participation in the criminal activity or significant government coercion in inducing the criminal behavior in the first place. For reasons we explain below, the current record gives Flynn no plausible grounds to prevail on a claim of outrageous government conduct.

The second body of law—the one concerning Flynn’s request to withdraw his plea—is more forgiving and actually leaves some ground for Flynn to make headway. The burden on a defendant to withdraw a guilty plea prior to sentencing is not all that high. As the U.S. Court of Appeals for the D.C. Circuit summarized its caselaw in 2007:

A defendant may withdraw a guilty plea prior to sentencing if he “can show a fair and just reason for requesting the withdrawal.” FED.R.CRIM.P. 11(d)(2)(B). Although “[w]ithdrawal of a guilty plea prior to sentencing is to be liberally granted,” United States v. Taylor, 139 F.3d 924, 929 (D.C.Cir.1998), we review a district court’s refusal to permit withdrawal only for abuse of discretion, United States v. Hanson, 339 F.3d 983, 988 (D.C.Cir.2003). In reviewing such a refusal, we consider three factors: “(1) whether the defendant has asserted a viable claim of innocence; (2) whether the delay between the guilty plea and the motion to withdraw has substantially prejudiced the government’s ability to prosecute the case; and (3) whether the guilty plea was somehow tainted.” Id. (quoting United States v. McCoy, 215 F.3d 102, 106 (D.C.Cir.2000) (quoting Taylor, 139 F.3d at 929)).

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