Ending the Flynn False-Statement Case Was the Right Judgment

Judgments and rules are two different things. Rules are, or should be, clear bright lines that can produce yes-or-no answers. Judgments are more complicated than that. They need not be as standardless as Potter Stewart’s famous definition of pornography (“I know it when I see it”), but judgments typically involve a good deal more weighing and balancing of multiple factors, sometimes in ways that don’t reduce to a mathematical formula. The Justice Department’s decision to drop the Michael Flynn false-statement prosecution, three years after he pleaded guilty, might not pass muster as a rules-based decision, which is why Flynn faced an uphill battle trying to convince a court to vacate his plea. But as a judgment, it was the right one.

To start with, remember prosecutorial discretion. It is attractive as a rhetorical strategy to pretend that all violations of the law should be, and normally are, always prosecuted. In the real world, however, that is not how it works. Judgments are always made: about the strength of the evidence, the strength of the legal arguments, the seriousness of the actual crime, the nature of the offender, and the resources needed to pursue the case. These are not judgments that should be made without standards, or they become arbitrary at best, discriminatory at worst. But if your argument in the Flynn case is simply “he should be prosecuted if the law allows it,” you’re not dealing seriously with the world as it is.