On Thursday, the U.S. attorney for the District of Columbia, Timothy Shea, filed a motion to drop the charges against former Trump national security adviser Michael Flynn, who, in the course of special counsel Robert Mueller’s probe, pleaded guilty to making false statements to the FBI but later withdrew that plea. The move came hours after the lead prosecutor, Brandon Van Grack, withdrew from the case, placing it in the hands of one of Attorney General William Barr’s former top advisers. President Donald Trump has pushed for years through his tweets, public statements, and personal interactions with top DOJ officials for Flynn’s case to be dropped.
In the extraordinary motion, Shea argued that the FBI’s investigation of Flynn was based on “frail and shifting justifications” and that the case against him was too thin to prove beyond a reasonable doubt.
The effort on behalf of the president by Barr and Shea to cover up already confessed crimes is a further step toward the complete corruption of the Department of Justice. The department was left reeling earlier this year when, after Trump’s urging, the same U.S. Attorney’s Office changed its sentencing recommendation for another Trump associate and felon, Roger Stone, prompting the public withdrawal of all of the attorneys previously working on the case. All that’s left, really, is for the department to start prosecuting Trump’s political enemies.
“The fact that DOJ has reversed itself 180 degrees to let a presidential ally off the hook—after he pled guilty—is yet another among the slinking cavalcade of humiliations Trump and Barr have inflicted on the [DOJ],” former federal prosecutor and University of Missouri School of Law professor Frank Bowman told me.
Flynn was at the center of special counsel Robert Mueller’s investigation into obstruction of justice by Trump. He had also previously confessed to lying to prosecutors about his contacts with former Russian Ambassador Sergey Kislyak and lying on Foreign Agents Registration Act forms about his involvement with Turkey.
It’s unclear whether Van Grack, Flynn, or Shea will be made to publicly account for this blatant cover-up. House Judiciary Committee chairman Jerry Nadler and House Intelligence Committee chairman Adam Schiff released statements suggesting they would not try to make them testify, though Nadler said he was seeking to question Barr.
Last week, Trump said he was considering pardoning Flynn, but hinted that Barr would do his dirty work for him. “It looks to me like Michael Flynn would be exonerated based on everything I see,” he told the press.
In January 2017, the FBI probed conversations Flynn had as part of Trump’s transition team surrounding President Barack Obama’s sanctions of Russia for interfering in the 2016 election. In December 2016, Flynn asked Kislyak to have Russia hold off in responding to those sanctions, a request to which the Russians agreed and one that may have violated the Logan Act. Trump at the time praised Russian President Vladimir Putin as being “very smart” for declining to retaliate. In January 2017, Flynn lied to the FBI about this interaction. In February 2017, Trump then requested that former FBI Director James Comey “let go” of the bureau’s investigation into Flynn and fired Comey in May 2017 after he declined to do so, which formed the basis for Mueller’s obstruction of justice investigation of the president. Mueller concluded last year that Trump may have obstructed justice and that the question was potentially one for Congress, or for prosecutors under a future Department of Justice, because of constitutional questions surrounding indicting a sitting president. According to Mueller, former White House counsel Don McGahn directly told the president that his “biggest exposure” for potential obstruction of justice charges was tied to his “ask re: Flynn.”
In this latest move to wipe away Flynn’s criminal case, Barr’s DOJ also acts to further cover up Trump’s own obstruction of justice.
Shea’s justification for dropping the case was that Flynn’s lies to the FBI were immaterial. Never mind that he was caught lying to the public, the vice president, and the press secretary about his interactions with Kislyak and possibly committed a Logan Act offense, which would have given Russia direct leverage over 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,” Shea wrote.
“Whether or not Mr. Flynn had been entirely candid with the future Vice President or Press Secretary did not create a predicate for believing he had committed a crime or was beholden to a foreign power,” he continued.
Bowman waved away this claim as nonsense that had been previously rejected by the judge in the case, Emmet G. Sullivan. “The [government’s] excuse for moving to dismiss is remarkably disingenuous and utterly inconsistent with what DOJ argued earlier in the same case,” he told me in an email. “It’s also potentially damaging to federal law enforcement going forward.”
DOJ seems to be arguing a defendant can escape liability for lying to the FBI or other federal agency if the lie he tells doesn’t fall precisely within the ambit of some formally authorized investigation, even where the subject of inquiry is plainly within the general “jurisdiction of the executive branch … of the Government of the United States.” 18 USC 1001.
Although this example isn’t precisely on point, suppose the FBI opens a case on a bank robbery, and an FBI agent comes to ask me about bank robbery but, on a hunch, asks me about an unrelated case of espionage. If I lie, the Barr DOJ’s position would seem to be that I can’t be prosecuted under 1001 because the agent wasn’t pursuing the opened case. In short, the scope of 1001 would be limited by the fortuity of the paperwork flow of the investigative agency.
Now I suppose defense lawyers and their clients might think this would be a good rule, but no sane Justice Department would ever advance so restrictive a notion. What we have here is a DOJ so in thrall to the president’s desire to protect his friends (without putting him to the embarrassing necessity of issuing a pardon) that it’s willing to cripple itself for future cases.
Sullivan will now have to decide whether to accept the DOJ’s withdrawal of the case or to try to sentence Flynn despite that withdrawal. Trump could, of course, still seek to pardon Flynn. But Barr has now sent a clear message: The Department of Justice will go to any lengths to protect the boss and his associates.