Over a week ago, I wrote a column calling for the Justice Department to drop its case against former National Security Adviser Michael Flynn. I have long been a critic of the case but the new evidence undermined not just the legitimacy of the prosecution but of the Justice Department itself. The Justice Department just moved to dismiss the case, a belated but commendable decision. The Flynn case represents one of the most ignoble chapters of the Special Counsel investigation. Notably, the motion itself could lay the foundation for suing on the basis of malicious prosecution.
While Judge Emmet Sullivan could dismiss the charges on the papers (an unopposed motion), I would expect a hearing to be called. There is a great irony here. Sullivan’s last hearing on sentencing led to controversial statements from the bench and a delay in sentencing that resulted in an easier path to dismissal.
James Comey tweeted that “DOJ has lost its way.” Given what this motion and the new evidence says about Comey’s own conduct, I would hope so if Comey is referring to his way of running the DOJ. Comey is implicated in this ignoble effort to bag a Trump official at any cost.
In the motion below, the Justice Department stresses that “the citizen’s safety lies in the prosecutor who … seeks truth and not victims, who serves the law and not factional purposes, and who approaches [the] task with humility.” It also establishes that there was never a satisfaction of the materiality element to the criminal allegation:
“In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI. Indeed, the FBI itself had recognized that it lacked sufficient basis to sustain its initial counterintelligence investigation by seeking to close that very investigation without even an interview of Mr. Flynn. See Ex. 1 at 4. Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes, id. at 3.”
It further notes that key figures like Andrew McCabe “cut off” objections to the overly aggressive pursuit of Flynn. It describes an effort of former Director James Comey, McCabe, and others to skip common protocols to bag Flynn at any cost on any grounds.
While malicious prosecution cases are notoriously difficult to prove (particularly in a case with a voluntary plea), the motion reinforces the view of many of us that the Justice Department was engaged in a campaign to incriminate Flynn — a campaign that now appears entirely detached from both the evidence and legal standards supporting a criminal charge. Such a lawsuit could allow Flynn to pursue discovery into the motivations and actions of figures like McCabe.
The motion relieves President Donald Trump of the necessity of a pardon for Flynn. However, it hardly ends the matter. Congress has expressed an interest in investigating new and troubling evidence. It has every reason to do so. The new evidence obviously does not comport with the standard narrative of the media from the outset of the Russian investigation. Many will defend this case and its underlying abuses as “standard” practices. I have certainly seen abuses in my career as a criminal defense attorney, but I have never seen a record as troubling as this one in prosecutors seeking the creation rather than the investigation of criminal conduct. Even if such abuse is deemed standard by apologists for Mueller, it is neither an excuse nor a license for such misconduct.