The Justice Department is dropping its case against former National Security Advisor Mike Flynn, according to documents filed in court Thursday that were first reported by the AP.
The move is the latest in what has been a series of steps by the Justice Department, since Attorney General Bill Barr took over, to change direction in cases first brought by special counsel Robert Mueller.
President Trump has been a vocal critic of the prosecution of his former close advisor, who had pleaded guilty in December 2017 to lying to the FBI that prior January.
“The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue,” the Justice Department said in the new filing. “Moreover, we do not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”
The Justice Department described the counterintelligence probe to which Flynn lied in the filing as “a no longer justifiably predicated investigation.”
“Continued prosecution of the charged crime does not serve a substantial federal interest,” the filing reads.
Flynn set off alarm bells in December 2016 with five phone calls to Russian ambassador Sergey Kislyak, and by subsequently lying to incoming Trump administration officials about their contents. Specifically, Flynn lied about whether he discussed sanctions and their potential removal with Kislyak, on the same day that the outgoing Obama administration hit the Russian government with an array of sanctions in response to Moscow’s meddling in the 2016 presidential election.
The filing — signed by U.S. Attorney for the District of Columbia Timothy Shea — advances a narrative of the FBI’s actions in the Flynn investigation that suggests the bureau was acting in bad faith. It points to Trumpworld bogeymen Peter Strzok and Lisa Page to put forth the argument that the interview in which Flynn lied was needlessly and baselessly arranged.
In the government’s new view, Strzok — then the FBI’s deputy assistant director — was able to arrange the interview only because “the counterintelligence investigation into Mr. Flynn was, unexpectedly, still formally open.” The filing suggests that the interview only occurred because the closure of the counterintelligence probe “had not been timely executed.”
As to what caused the probe’s reopening — Flynn’s cell phone conversations with Kislyak — the government says the following: “The FBI had in their possession transcripts of the relevant calls.”
The filing cites purported conflict between then-FBI Director James Comey and Sally Yates, the deputy attorney general at the time. The government says that “matters came to a head” on the day of Flynn’s interview, with Comey allegedly telling Yates that FBI agents were en route to the White House to interview the national security adviser, causing “senior DOJ officials ‘hit the roof.’”
The government then shifts more suspicion on Comey, Strzok, and Page. It was Comey who, per the filing, decided that FBI agents “would go interview Mr. Flynn the following day without notifying either DOJ or the White House.”
In the government’s new telling, Yates and Comey are at odds over whether to tell Trump and his incoming administration that their public “descriptions of Mr. Flynn’s calls with Kislyak were not accurate.”
The government goes on to say that it can’t penalize Flynn for a crime, to which he pleaded guilty, “that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt.”
“Mr. Flynn pleaded guilty to making false statements that were not ‘material’ to any investigation,” the filing reads.
The government goes on to argue that Flynn’s lies weren’t “material.” To make the case, it advances a theory of lying to federal agents shocking to anyone with a passing familiarity with the FBI: law enforcement can’t go “fishing for falsehoods merely to manufacture jurisdiction over any statement — true or false — uttered by a private citizen or public official.”
Judge Sullivan’s earlier tongue-lashing of Flynn during his abortive December 2018 sentencing also earns a mention, in which the government alludes to how dramatically its own position has changed.
The filing acknowledges that Sullivan “previously deemed Mr. Flynn’s statements sufficiently ‘material,'” but advises Sullivan that he “did so, however, based on the Government’s prior understanding of the nature of the investigation, before new disclosures crystallized the lack of a legitimate investigative basis for the interview of Mr. Flynn.”
Judge Sullivan, who scolded Mueller’s prosecutorial team at Flynn’s original December 2018 sentencing for recommending a sentence of little to no jail time, will decide whether to accept the case’s dismissal. At the 2018 hearing, Sullivan ripped into Flynn for his admitted lies. “I want to be frank with you, this crime is very serious,” Sullivan told Flynn at the time. “Not only did you lie to the FBI, you lied to senior officials in the incoming administration.”
“I am not hiding my disgust, my disdain for your criminal offense,” Sullivan added.
The government heaps disdain on the FBI team in charge of investigating Flynn throughout the filing. At one point, the government says that the interview “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.”
The Trump administration makes that argument in part by discarding any idea that there was something worth investigating in Flynn’s calls with Kislyak and subsequent lies about them, saying that “the calls were entirely appropriate on their face.”
In this brazen new understanding, nothing was “said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power.” The FBI “had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak” which, in the government’s newfound view, destroyed any predicate for a new investigation.
The government argues that the presence of transcripts from a recent phone call obviated the need to interview Flynn. “Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia,” the filing reads.
Government officials involved at the the time contradict that view. Mary McCord, then-acting assistant attorney general, said in an exhibit attached to the filing that the interview transcripts “were ‘worse’ than she initially thought” upon seeing them.
The government suggests that since the Kislyak calls weren’t a legitimate basis to keep the Flynn investigation open, the agents who pushed for the interview “sidestepped” civil liberties protections that limit “the investigative reach of law enforcement: the predication threshold for investigating American citizens.”
Describing the rationale for the Flynn investigation as “frail and shifting,” the government now says that its own investigators “were eager to interview Mr. Flynn irrespective of any underlying investigation.”
The DOJ takes it a step further, saying that the Flynn probe was so illegitimately founded that his lies would fail to meet the standard by which a false statement must “be capable of influencing an agency function or decision.”
“Even if he told the truth, Mr. Flynn’s statements could not have conceivably “influenced” an investigation that had neither a legitimate counterintelligence nor criminal purpose,” the government says.
“Irrespective of Mr. Flynn’s plea, ‘prosecutors have a duty to do justice,’ the government concludes.
The DOJ’s move to dismiss the case came not long after a former member of special counsel Robert Mueller’s team who had continued to be involved in Flynn’s prosecution indicated he was leaving the case.
The notice, which is required under the court’s local rules, did not given any reason for why Brandon Van Grack was withdrawing, but nonetheless was seen as a sign of potential turmoil in the case.
Brandon Van Grack, a veteran of Mueller’s team, has sought to withdraw from the Flynn case pic.twitter.com/e18ZS0WAej
— Tierney Sneed (@Tierney_Megan) May 7, 2020
Van Grack has been a persistent target of Flynn’s attorneys as they lobbed accusations of prosecutorial misconduct. Their court filings repeatedly called him out by name.
Flynn was supposed to be sentenced more than a year ago. After Flynn hired a prominent anti-Mueller critic to replace the lawyers who negotiated his plea deal, his case has devolved into a protracted fight over whether his plea can be withdrawn, with his new attorneys pushing for the entire prosecution to be dismissed.
Their latest accusations, filed last month, alleged that Van Grack had hid from Flynn a “side deal” he had made with Flynn’s original legal team not to prosecute Flynn’s son in exchange for the plea agreement. Conservative media had also zeroed in on Van Grack with regards to Flynn’s other claims that prosecutors had failed to turn over FBI internal documents that they were allegedly obligated to produce to Flynn.
Legal experts told TPM last week that the claims against the prosecutors were overhyped and that it did not appear that the documents were inappropriately withheld.
Flynn’s team got their hands on the internal FBI documents — which included notes and communications discussing the FBI’s strategy going into the Jan. 2017 interview with Flynn — as part of a review of Flynn’s case Attorney General Bill Barr tasked to a U.S. Attorney in Missouri.
Some former DOJ prosecutors have compared the move as similar to Barr’s meddling in the Roger Stone case. Barr watered down the sentencing recommendation the career prosecutors — which included Mueller team alum — had made in the case, prompting many of them to withdraw from the prosecution.
Read the government’s motion to dismiss here: