(Bloomberg Opinion) -- On Thursday afternoon the Justice Department demolished what was left of its own prosecution of former National Security Adviser Michael Flynn. He had been awaiting sentencing for lying to FBI agents on his fourth day on the job.
In a motion to dismiss the case against him, U.S. Attorney Timothy Shea argued that the FBI had no basis under which to interview Flynn, that agents who interviewed him did not believe he lied, and that what he told those agents on Jan. 24, 2017, had no material effect on the bureau’s investigation into Russia’s interference in the 2016 presidential election.
“Mr. Flynn’s request that Russia avoid ‘escalating’ tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States,” Shea wrote. “At bottom, the arms-length communications gave no indication that Mr. Flynn was being ‘directed and controlled by … the Russian federation,’ much less in a manner that ‘threatened … national security.’”
These words are devastating to Flynn’s critics. The FBI had been ready to close the Flynn case in early January 2017, as a memo released last week makes clear. That memo found that the bureau turned up no “derogatory information” from classified government databases or confidential human sources.
Shea found the decision to continue with the case risible. “The FBI sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens,” he wrote.
By keeping the investigation open, the FBI was able to secure an interview with Flynn without going through the proper channels at the White House. “The irregular procedure that preceded his interview, suggests that the FBI was eager to interview Mr. Flynn, irrespective of any underlying investigation,” Shea wrote. In other words, the FBI was more interested in catching Flynn in a lie than in investigating an actual crime.
Indeed, Shea undermines former FBI Deputy Director Andrew McCabe’s account of his phone call with Flynn to set up the interview. McCabe wrote in his 2019 memoir that he asked Flynn if he wanted a lawyer or the White House counsel to be present. Shea writes that McCabe “effectively discouraged Mr. Flynn from procuring counsel or even notifying the White House Counsel.”
All of this is important because almost a year after that interview, Flynn pleaded guilty to one count of making false statements to the FBI in a deal with Special Counsel Robert Mueller. In exchange for cooperation and a side agreement not to pursue charges against his son, the special counsel agreed to recommend a lenient sentence.
At the time, Flynn did not know about all the shortcuts, missteps and irregularities in the FBI’s investigation into him. What’s more, the FBI agents who interviewed him at the time did not even think he was lying. Shea writes: “The statements in question were not by their nature easily falsifiable. In his interview, Mr. Flynn offered either equivocal (‘I don’t know’) or indirect responses, or claimed to not remember the matter in question.”
As to why Flynn copped a plea: Flynn and his lawyers have never been provided with a transcript of his call with the Russian ambassador. It was not until late last year that Flynn was provided with much of the material that led the Justice Department to drop the prosecution. Flynn’s lawyers did not receive the January 2017 memo recommending the case be dropped until last week.
Instead, Flynn faced the full brunt of Special Counsel Robert Mueller. He was threatened with enforcement of the Foreign Agents Registration Act for minor omissions in his contract to represent a Turkish businessman who Flynn later admitted was standing in for the government of Turkey. In September a judge threw out the prosecution of his business partner in a separate case brought by the Justice Department. His son was also threatened with prosecution. After fighting the case for nearly a year, Flynn wanted the nightmare to be over.
What happened to Michael Flynn happens a lot in America’s criminal justice system, it’s true. It’s fair to ask why the Justice Department has decided to intervene in this case at this time. But it’s also fair to ask why, just before a new president took office and against its own investigators’ recommendation, the FBI’s leadership kept the case open without proper predication. Equality under the law is a bedrock American principle. So is the peaceful transfer of power.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Eli Lake is a Bloomberg Opinion columnist covering national security and foreign policy. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.
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