In 2016, Michael Flynn was picked up on a wiretap back-channeling to Russian ambassador Sergei Kislyak to promise sanctions relief once Donald Trump became president. In 2017, he lied about it to the FBI, and twice pled guilty to making false statements. In 2020, over the vehement objection of the line prosecutors, the Justice Department dropped the charges against Flynn at the insistence of then-Attorney General Bill Barr, who has publicly admitted to interfering in the prosecutions of both Michael Cohen and Roger Stone. Before leaving office, Donald Trump issued a pardon for Michael Flynn.
And now, after having gotten away scot free, this guy is suing the FBI for $50 million on the theory that it maliciously prosecuted him.
It’s a lot.
The complaint, filed last week in the Middle District of Florida, is exactly the kind of fulminating monstrosity we’ve come to expect from Trumpland, even after Judge Middlebrooks fined the former president and his lawyer Alina Habba $1 million for their idiotic Clinton RICO lawsuit. And indeed Flynn is represented by Jared Roberts, an attorney in the office of Kraken alum and regular Trump lawyer Jesse Binnall. In fact, Roberts is the attorney of record for the appeal of that RICO suit.
This case is mercifully shorter, and even marginally less mendacious. But it still manages to spend 47 pages frothing about the evil Deep State, spewing every conspiracy theory about a witch hunt to “get” Trump, and wildly mischaracterizing the origin of the Russia investigation.
Contrast Flynn’s claim about the inception of the investigation:
Leaving aside the lack of probable cause and other manifest deficiencies of the umbrella Crossfire Hurricane investigation, the Crossfire Razor sub-investigation itself lacked a legitimate investigative predicate.
With that of the DOJ Inspector General:
We concluded that the quantum of information articulated by the FBI to open the individual investigations on Papadopoulos, Page, Flynn, and Manafort in August 2016 was sufficient to satisfy the low threshold established by the Department and the FBI.
But leave aside the factual inaccuracies of the complaint for a moment. We don’t even have to get to the strength of Flynn’s claim that somehow every line prosecutor and the Trump-appointed US Attorney for DC (who was removed in part because she wouldn’t blow up the Flynn prosecution) were part of a plot to destroy Trump via Flynn. Because, as my colleague Andrew Torrez at the Opening Arguments podcast notes, this action, brought under the Federal Tort Claims Act, is wholly time-barred.
Under 28 U.S.C. § 2401, prior to instituting this lawsuit, Flynn had to make an administrative claim “in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” But Flynn didn’t file his administrative claim until February 24, 2022, more than four years after he originally pled guilty in 2017, which is probably why the Justice Department took no action on Flynn’s administrative claim.
And even if you squint hard and say that the two year-clock starts on May 7, 2020 when the DOJ dropped the case against him, or December 8 when Judge Emmet Sullivan reluctantly dismissed the charges, this complaint is still untimely because Flynn had a year from February 24 —six months until the administrative complaint was deemed denied, and six further months in which to file his claim — and this complaint wasn’t docketed until March 3.
All of which is … unfortunate. As is Flynn’s luck with the judicial wheel, which has once again landed him on the docket of Judge Mary Scriven. No doubt he was hoping for a more sympathetic hearing from one of her colleagues in Tampa, perhaps Judge William Jung, Judge Thomas, or (heart eyes emoji!) Judge Kathryn Kimball Mizelle, all three of whom were appointed by Donald Trump. Although, presumably, they, too, would have been equipped with a calendar and an ability to read black letter law.
Instead he wound up before Judge Scriven, who refused to issue emergency relief when Flynn sued the January 6 Select Committee just because he couldn’t be bothered to effect service. Flynn later dismissed voluntarily because, having failed to block the subpoena, he just showed up and barked “Fifth!” several hundred times, mooting his case.
Flynn’s sister Valerie fared no better before Judge Scriven, who dismissed a defamation complaint against CNN which reported accurately — and with video evidence — that the family had raised their hands and recited the words of a pledge to the QAnon conspiracy cult.
So, as a lawsuit, this case is presumably a non-starter. But perhaps it’s intended as a fundraising mechanism, in which case, it’ll probably be wildly successful.
US v. Flynn [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.