DOJ Drops Michael Flynn Case, Sparing Trump the Risk of a Pardon

(Bloomberg) -- Under sustained pressure from Donald Trump, the Justice Department took the highly unusual step of dropping its prosecution of Michael Flynn, the president’s first national security adviser, even though he had pleaded guilty more than two years ago to lying to FBI agents.

The move was disclosed in a court filing on Thursday shortly after the career prosecutor in charge of the case withdrew without explanation. Attorney General William Barr publicly backed the decision, which came after weeks of demands by Trump and his allies to redress what the president often calls a Democratic “hoax” and a “witch hunt” intended to tar his administration.

The Justice Department’s filing -- if agreed to by the judge in the case -- spares the president the politically sensitive question of whether to pardon Flynn if he were sentenced to prison in the midst of Trump’s re-election campaign. It came after court documents were unsealed last month in which FBI officials discussed whether they should try to get Flynn to lie during an interview in January 2017 so that he could be prosecuted or fired from his White House post.

Trump told reporters at the White House Thursday that he’d expected the charges against the retired general to be dropped, saying, “He’s an innocent man” who was “targeted in order to try and take down a president.” He called the Obama administration “human scum” for initiating the prosecution against Flynn and said, “It’s treason.”

The reversal plays into Trump’s re-election strategy, as Flynn has become a symbolic figure among conservative activists who believe a cabal of government officials were out to take down the Trump administration.

In the court filing, the Justice Department said, “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.”

In an interview on CBS News broadcast Thursday evening, Barr said, “A crime cannot be established here. They did not have a basis for the counterintelligence investigation against Flynn at that stage.”

Barr affirmed that he made the decision and did not consult with the White House before making it. “It was an easy decision,” he said earlier in the interview. “Once I saw all the facts and some of the tactics used by the FBI in this instance and also the legal problems with the case, it was an easy decision.”

Barr Criticized

But the decision renewed criticism that the Justice Department under Barr is making politically motivated calculations to benefit Trump.

“The president doesn’t need to issue pardons to his cronies when his attorney general appears willing to terminate their cases before justice can be served,” Noah Bookbinder, a former federal prosecutor who’s executive director of the group Citizens for Responsibility and Ethics in Washington, said in a statement.

House Judiciary Chairman Jerrold Nadler, a New York Democrat, said in a tweet: “Flynn PLEADED GUILTY to lying to investigators. The evidence against him is overwhelming. Now, politicized DOJ is dropping the case.”

James Comey, the former director of the Federal Bureau of Investigation who was fired by Trump, said in a tweet, “The DOJ has lost its way. But, career people: please stay because America needs you. The country is hungry for honest, competent leadership.”

Barr has dismissed the FBI’s investigation into whether the Trump campaign conspired in Russia’s interference in the 2016 election as “flimsy,” “baseless” and a “complete sham” that was marred by “inexplicable behavior” and “gross abuse.”

In February, Barr revealed that he established a private channel for Trump’s personal lawyer Rudy Giuliani to relay his allegations on Ukraine, and ordered prosecutors to reduce their sentencing recommendation for another Trump associate, Roger Stone. Four career prosecutors working on the Stone case withdrew from it following Barr’s order.

Trump has demanded that the charges against Stone also be dropped.

Flynn’s Contacts

Flynn served as the president’s national security adviser for three weeks before he was fired for lying about his contacts with Sergey Kislyak, the Russian ambassador to the U.S. at the time. Flynn pleaded guilty in December 2017 to lying to FBI agents and agreed to cooperate.

He reversed course this January before he could be sentenced, deciding to fight the Justice Department. Prosecutors slammed the move, pointing out that Flynn had admitted to the crime while under oath and agreed to cooperate in a bid for a lighter sentence.

It’s not uncommon for people to plead guilty to a crime and then cooperate with the government, resulting in their cases being dropped. In Flynn’s case, he initially cooperated before he decided to change his guilty plea, making the decision Thursday to drop the prosecution doubly unusual.

Andrew McCabe, the FBI’s former deputy director who was fired by Barr’s predecessor Jeff Sessions, called the decision to dismiss charges against Flynn “pure politics designed to please the president.” He said in a statement that there was ample reason to investigate Flynn based on “incontrovertible evidence “ that he “spoke to the Russian ambassador on more than one occasion, that he actively tried to influence the actions of Russian officials, and that those officials acceded to his requests.”

Unsealed Documents

A U.S. district judge last month unsealed several pages of FBI emails and handwritten notes about the January 2017 interview with Flynn. The notes indicated FBI officials knew Flynn might lie to them, and one note asked whether the goal of the interview should be to “get him to lie so we can prosecute him or get him fired?”

The context of the notes isn’t clear, and some parts remain redacted, including the nature of the evidence that the agents indicated they could present to Flynn during the interview.

Trump asked for Flynn’s resignation in February 2017, just weeks after he took office, in part on the grounds that he lied to Vice President Mike Pence about conversations with the Russian ambassador. Flynn said in his resignation letter that he had “inadvertently” misinformed Pence as well as Trump that he hadn’t discussed the future of U.S. sanctions with the ambassador.

Since then, Trump has repeatedly praised and defended Flynn. Pence also has apparently had a change of heart. The vice president said on April 30 he increasingly believes Flynn didn’t intend to mislead him about conversations with the Russian ambassador.

“I’m more inclined to believe it was unintentional than ever before,” Pence told reporters. “When you see the nature of abusive actions by Justice Department officials toward him, it’s deeply troubling.”

Federal prosecutors had reversed course several times on their recommendation for Flynn’s sentence.

In 2018, the government recommended that Flynn receive probation based on his cooperation with Special Counsel Robert Mueller’s Russia investigation. The Justice Department changed its position and sought jail time after Flynn became more combative in response to Mueller’s probe.

In January, prosecutors made a surprising reversal, backing Flynn’s request for probation even through he failed to provide substantial assistance to their investigations.

Judge to Decide

Now, U.S. District Judge Emmet Sullivan, who’s overseeing Flynn’s case will have to decide whether to allow the charges to be dropped.

“There is still some judicial scrutiny, and it’s in the judge’s independent discretion whether to dismiss the case,” said Harry Sandick, a former federal prosecutor who’s not involved in the Flynn case. “The judge could say there’s not a basis to grant the motion.”

Sullivan previously gave Flynn a stinging rebuke.

“Arguably, you sold your country out,” Sullivan said to Flynn in December 2018. “I’m not hiding my disgust, my disdain for this criminal offense.”

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