In a court filing Thursday, the Department of Justice said that “based on an extensive review and careful consideration of the circumstances … continued prosecution of this case would not serve the interests of justice.” The filing was signed by Timothy Shea, who’s currently serving as the US Attorney for the District of Columbia.
Flynn pleaded guilty in December 2017 to lying to FBI investigators about his contacts with the Russian ambassador to the US during Donald Trump’s presidential transition, when Flynn, a retired US Army lieutenant general, was serving as a senior member of the president-elect’s transition team.
At the time, the Justice Department lawyers prosecuting the case accepted Flynn’s guilty plea because it was part of a deal in which Flynn agreed to cooperate with investigators in the Mueller probe, presumably in exchange for a more lenient sentence when the time came.
But then Flynn’s case took a bizarre turn. He began fighting his conviction, with his attorneys alleging the FBI had somehow railroaded him. And Attorney General Bill Barr, who has made no secret of his distaste for the Mueller investigation, assigned an outside prosecutor, US Attorney for the Eastern District of Missouri Jeff Jensen, to review the case against Flynn.
And now, it seems that the current leaders at the Justice Department — namely AG Barr — have bought into this narrative as well. Jensen said in a statement that he had “concluded the proper and just course was to dismiss the case.” He added that he advised Barr on these findings, and the AG agreed with his conclusions.
In the Thursday court filing, the DOJ concedes that Flynn lied to investigators but claims Flynn’s statements could not have “conceivably ‘influenced’ an investigation that had neither legitimate or counterintelligence or criminal purpose.”
But not everyone involved in the case seems to agree with the decision: The lead prosecutor on the Flynn case, Brandon Van Grack, withdrew from the case Thursday, which was reported just before the news of Flynn’s dismissal broke. He did not offer any details about his departure in his notice to the court.
Van Grack had worked on special counsel Robert Mueller’s team, though he is also an official at the Justice Department, currently heading up the Foreign Agents Registration Act Unit.
The move to dismiss Flynn’s case and Van Grack’s resignation are strikingly similar to the Justice Department’s meddling in the Roger Stone case, another Trump associate convicted in the Mueller investigation. Stone’s case is still proceeding, but Barr intervened in February to revise the prosecutors’ initial sentencing recommendations. In that instance, the entire prosecution team quit.
The motion to drop Flynn’s case must still be reviewed by the judge in the case, but the Justice Department’s handling of the Flynn matter will once again raise questions about the apparent politicization of the Barr’s Justice Department, which seems intent on protecting the president and undermining the outcomes of the Russia investigation.
Back in December 2017, just one day after Flynn pleaded guilty, President Trump tweeted that he’d fired Flynn as national security adviser earlier that year because Flynn had lied not only to the FBI but also to Vice President Mike Pence.
I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!
Trump seems to have forgotten that second part about Pence, though, as on Thursday, Trump called Flynn an “innocent man” and said he now sees him as an “even greater warrior.”
Flynn’s guilty plea was explosive at the time
Flynn pleaded guilty to making false statements to federal law enforcement about his communications with Russian Ambassador Sergey Kislyak.
In December 2016, during Trump’s presidential transition, the Obama administration put sanctions on Russia for its role in interfering in the 2016 election. Flynn communicated with Kislyak and asked him not to retaliate — the implication being things would be different when Trump got into office.
When FBI agents asked him about those conversations in early 2017, Flynn denied that he’d brought up sanctions. Prosecutors also found evidence that Flynn may have broken the law elsewhere, including for failing to register as a foreign lobbyist, but prosecutors charged him with that one count of lying to the FBI, which Flynn plead guilty to in December 2017.
Flynn’s initial cooperation with Mueller should have alienated him from Trump and his allies, as the president has bashed “flippers” — people who, like his former attorney Michael Cohen, talked to prosecutors in exchange for a lighter sentence — and Flynn absolutely cooperated with Mueller’s team.
But instead, Flynn’s case took a wild turn.
The Flynn case got really weird. Now it’s even weirder.
Flynn’s sentencing was initially scheduled for December 2018, and given the prosecutors’ apparent satisfaction with Flynn’s help, looked to be fairly straightforward. It turned out to be anything but.
Right before the sentencing hearing, Flynn’s lawyers suggested in a memo that he was railroaded by prosecutors, something Mueller’s team quickly dismissed.
Then, at his court date, the judge harshly criticized Flynn. “This is a very — serious — offense,” Judge Emmet Sullivan said. “A high-ranking senior official of the government making false statements to the Federal Bureau of Investigation while on the physical premises of the White House.”
Sullivan questioned prosecutors as to whether Flynn had committed treason, though he walked back those comments. The judge then asked Flynn whether he wanted to delay his sentencing so he could get the full benefits of his cooperation. Flynn agreed, which postponed his sentencing into 2019.
Prosecutors responded by rescinding their generosity. Citing Flynn’s failure to accept responsibility in a January memo, they updated their sentencing recommendation to include prison time of zero to six months.
Flynn’s sentencing was scheduled for the end of February, but the judge overseeing the case, Emmet Sullivan, ended up postponing it “until further order of the court.”
That’s because Flynn had begun arguing that the FBI had set him up to lie, and that he’d received inadequate assistance from his former lawyers, whom he’d worked with during his guilty plea. Sullivan allowed time for both prosecutors and Flynn’s legal team to make their cases on these charges.
The materials, which are partially redacted, are from January 2017 and consist of three emails and one handwritten note dealing with internal discussions among agents that took place shortly before they questioned Flynn.
The emails discuss how to answer questions Flynn might ask during the investigation. The handwritten note, however, includes more detailed deliberations, such as whether to present Flynn with evidence if he were to lie during his interview about his contacts with Kislyak.
In that note, an FBI official (believed, based on the initials, to belong to Bill Priestap, the former head of FBI counterintelligence) writes that the goal of the interview with Flynn was “to determine if he is going to tell the truth [about] his relationship w/ Russians.” In another section it reads: “What is our goal? Truth/admission or to … get him to lie, so we can prosecute him or get him fired?”
The author also writes in the note at one point: “If we get him to admit to breaking the Logan Act give facts to DOJ + have them decide … If we’re seen as playing games, WH will be furious. Protect our institution by not playing games.”
Flynn’s defenders pointed to these last memos — especially the note asking whether the goal was to “get him to lie, so we can prosecute him or get him fired?” — as proof that the FBI went into the interrogation with the intention of getting Flynn to lie. Flynn’s attorney called the revelations “shocking” and “reprehensible,” according to the New York Times.
Those defenders include the president, who responded to the documents by tweeting, “What happened to General Michael Flynn, a war hero, should never be allowed to happen to a citizen of the United States again!”
But the Justice Department, in moving to dismiss Flynn’s case on Thursday, hews more closely to the president’s interpretation. “The frail and shifting justifications for its ongoing probe of Mr. Flynn,” the filing says, “as well as the irregular procedure that preceded his interview, suggests the FBI was eager to interview Mr. Flynn irrespective of any underlying investigation.”
The Department of Justice’s interference brings scrutiny back on Barr
The extraordinary move to dismiss the case against Flynn looks like yet another instance of Barr’s Justice Department overriding the discretion of prosecutors, and doing it in a way that would seem to protect the president’s interests.
The implications for the rule of law are worrisome. Flynn lied to the FBI and admitted his guilt, but the Justice Department is now basically saying that doesn’t matter: “[T]he 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 filing states.
“Even if Flynn told the truth, Mr. Flynn’s statements could not have conceivably ‘influenced’ an investigation that had neither legitimate counterintelligence nor criminal purpose,” the filing also states.
This is a dramatic reversal from what federal prosecutors said in 2017. In a filing laying out the charges against Flynn and his plea agreement, Mueller’s team wrote that Flynn’s “false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation” into the links and ties between the Trump campaign and Russia’s efforts to interfere in the 2016 election.
In other words, Flynn’s lies actually mattered. This is why the Justice Department’s decision to dismiss Flynn’s case looks very much like the latest assault on the legitimacy of the Russia investigation during Bill Barr’s tenure.
Critics have long accused Barr of acting as Trump’s personal attorney, beginning with his handling of the Mueller investigation itself.
Barr also disputed some of the findings in the Justice Department inspector general’s report that found political bias did not motivate the opening of the Russia investigation. “The FBI launched an intrusive investigation of a US presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken,” Barr said after the release of the report.
The attorney general also ordered a separate investigation into the origins of the Russia probe, led by Connecticut US Attorney John Durham. Barr overrode Stone’s sentencing, against the apparent objections of career prosecutors. The motion to dismiss Flynn’s case is added to that list.
But with the country reeling from the coronavirus, the fallout from Flynn’s case may be muted. House Democrats expressed outrage and re-upped calls for Barr to testify.
House Judiciary Chairman Jerry Nadler (D-NY) called the decision to drop the case against Flynn “outrageous” in a statement Thursday.
“The evidence against General Flynn is overwhelming. He pleaded guilty to lying to investigators. And now a politicized and thoroughly corrupt Department of Justice is going to let the President’s crony simply walk away,” he said. “Americans are right to be furious and worried about the continued erosion of our rule of law.”
Nadler had scheduled a hearing with Barr in March, where Democrats hoped to grill Barr on Stone’s sentencing. That was rescheduled because of the pandemic, but Nadler said that he intends to reschedule the hearing as soon as possible and request the Department of Justice Inspector General conduct a review.
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