The Justice Department Drops Flynn Case

440px-Michael_T_FlynnOver 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.


178 thoughts on “The Justice Department Drops Flynn Case”

  1. This argument assumes that everything said by the government in the document is factually accurate and legally sufficient to dismiss the case. Another analysis in Lawfare challenges all that and suggests that what has happened here is the DOJ seems to have agreed that Flynn violated no law when talking to the Russians and thus his lies to the FBI were not a basis to prosecute. This is not a good day for our legal system.

    1. The problem is 18 USC 1001 requires materiality. The false statements have to be material to an investigation. Flynn pled guilty to making false statements that had no materiality to any investigation. The statements were about legal conduct taking place after the elections — which begs the question as to why he was asked those questions at all.

      1. SteveJ, he was interviewed about a conversation he had with the Russian Ambassador about ignoring the sanctions President Obama had just placed on his country for interfering in our election in favor of Flynn’s boss. This was done as part of the investigation about possible Trump campaign criminal conspiracy with the Russian’s, who we already knew had interfered in the election to Trump’s benefit.


        1. You certainly do seem intent on linking a legal phone call to illegal activity. You have no legal basis for this no matter how much your naked partisanship causes you rationalize one.

            1. Only in your partisan mind. Another contradictory underpinning in all of this is the recognition that Trump and his minions are simply not competent enough to engage in a plot like this. And the blind admiration you’re showing for the F.B.I. in this farce is simply nauseating.

              Stick with the testing fiasco. That represents Trump — in all his glory.

              1. Still nothing SteveJ. Post an argument worth responding to and we can engage.

      2. “Flynn pled guilty to making false statements that had no materiality to any investigation. ”

        The statement of offense said that the false statement Flynn made did materially hinder the FBI investigation. Flynn and his lawyers agreed.

        1. Well that is the problem. The statements don’t do that in any rational universe. Simply reading the indictment should have tipped off anyone with sense that something was going on here — and it wasn’t Russian collusion. BTB is too far gone on this to do anything other than amuse myself for entertainment purposes.

          Perhaps you are salvageable.

  2. I would assume that Flynn did in fact say in so many words that the Obama overreaction would be reviewed by Trump. Was it not in the national interest for him to urge Russia not to escalate? The Logan Act is risible- not a charge since before the Civil War. As Priestap and every criminal lawyer in the country knew it was a setup. A meatball as my Legal Aid clients of long ago had it. The biggest meatball since when, Ethel Rosenberg?

    1. “…
      For decades, the Rosenbergs’ sons, Michael and Robert Meeropol and many other defenders maintained that Julius and Ethel were innocent of spying on their country and were victims of Cold War paranoia. After the fall of the Soviet Union, much information concerning them was declassified, including a trove of decoded Soviet cables, code-named VENONA, which detailed Julius’s role as a courier and recruiter for the Soviets and Ethel’s role as an accessory. In 2008 the National Archives of the United States published most of the grand jury testimony related to the prosecution of the Rosenbergs; it revealed that Ethel had not been directly involved in activities, though still acted as an accessory, and had full knowledge of Julius’s espionage activity and played the main role in the recruitment of her brother for atomic espionage.
      In 2014, five historians who had published works based on the Rosenberg case wrote that newly available Soviet documents show that Ethel Rosenberg hid money and espionage paraphernalia for Julius, served as an intermediary for communications with his Soviet intelligence contacts, relayed her personal evaluation of individuals whom Julius considered recruiting, and was present at meetings with his sources.[3] They support the assertion that Ethel persuaded her sister-in-law Ruth Greenglass to travel to New Mexico to recruit her husband David Greenglass as a spy.[3] Other historians, though, argue that this evidence demonstrates only that Ethel knew of her husband’s activities and chose to keep quiet.[6]

      [6] Lerner, Barron (August 1983). “Books: Sam Roberts’s The Brother: The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister, Ethel Rosenberg, to the Electrict Chair”. George Washington University History News Network. Retrieved October 14, 2019.”

      Sam Roberts is one historian, not others. His “interpretation” is a minor opinion of one.

      All, except one, the interruptions of the facts come to the conclusion: Julius and Ethel Rosenberg were American citizens who were convicted of spying on behalf of the Soviet Union.

      Sometimes … some people … don’t want to know the truth because they don’t won’t their illusions destroyed.

      And, so it goes.
      dennis hanna

  3. “Nothing can bring you peace but yourself. Nothing can bring you peace but the triumph of principles.”

    ~ Ralph Waldo Emerson

    Sleep peacefully tonight, General Flynn.

    1. “Sleep peacefully tonight, General Flynn.”

      General Flynn has earned another medal for valiant performance under fire.

  4. “I have never seen a record as troubling as this one in prosecutors seeking the creation rather than the investigation of criminal conduct.”

    The terrorist hoaxes invented by the F.B.I. are a decent enough example. The took the extra step of being co-planners of criminal activity in those.

  5. “THE COURT: Do you wish to challenge the circumstances on
    which you were interviewed by the FBI?
    THE DEFENDANT: No, Your Honor.
    THE COURT: Do you understand that by maintaining your
    guilty plea and continuing with sentencing, you will give up your
    right forever to challenge the circumstances under which you were
    THE DEFENDANT: Yes, Your Honor.
    THE COURT: Do you have any concerns that you entered your
    guilty plea before you or your attorneys were able to review
    information that could have been helpful to your defense?
    THE DEFENDANT: No, Your Honor.
    THE COURT: At the time of your January 24th, 2017
    interview with the FBI, were you not aware that lying to FBI
    investigators was a federal crime?
    THE DEFENDANT: I was not — I was aware.
    THE COURT: You were aware?

    Much discussion of FBI methods, Brady rule, etc, all of which Flynn agrees does not change his plea. Then, judge reading:

    On December the 28th, 2016, then-President Obama signed
    Executive Order 13757 which was to take effect on December the
    29th, 2016. The executive order announced sanctions against
    Russia as a response to Russia’s interference in the 2016
    presidential election.
    On December the 28th, 2016, the ambassador contacted
    Mr. Flynn. The next day Mr. Flynn called a senior transition
    official who was with other senior officials at the Mar-a-Lago
    Resort. They discussed the sanctions and their shared desire
    that Russia not escalate the situation.
    Immediately after this phone call, Mr. Flynn called the
    ambassador, quote, and requested that Russia not escalate the
    situation and only respond in a reciprocal manner, end quote.
    Shortly after this conversation, Mr. Flynn spoke again
    with the senior official to report on the call.
    Mr. Flynn also falsely stated that he did not remember a,
    quote, follow-up conversation, end quote, in which the ambassador
    stated that Russia had, quote, moderated its response to those
    sanctions as a result of Mr. Flynn’s request, end quote.
    On December 30th, 2016, President Putin announced that he
    would not take retaliatory measures in response to the sanctions
    imposed by then-President Obama. On December 31, 2016, the ambassador called Mr. Flynn to inform him that Russia had chosen not to retaliate. After this call, Mr. Flynn spoke with senior members of the transition team about the conversation and Russia’s decision not to escalate the

    We know Flynn is a traitor who lied to the FBI about telling the Russian Ambassador that for services rendered during the election, his boss wouldn’t uphold President Obama’s sanctions on his country. He also lied about being an agent for a foreign country while assuming sensitive duties in our government and pleaded guilty in court. We know Barr is a liar like his boss, and has now completely politicized the DOJ and in the process lowered department morale and public confidence all in the service of the goal he was hired to do – screw Trump’s enemies and help his friends.

    1. A classic example of a dunderhead who cherry picks his argument and has no feel for the facts. The corrupt FBI threatens your kid with prosecution and you whatever it takes to stop it. Whatever it takes. Doesn’t make it volitional which is required for any guilty plea.

      You must be some father, btb.

      1. Mespo- Have you noticed that Book’s screw seems to be getting a lot looser of late?

        1. Young:

          He’s doing the unraveling reminiscent of past blog blasters who found out that a lot of us don’t suffer ungrateful fools gladly.

      2. I have a suspicion his text arrived from a server in Marin County. Your government at work.

        1. Google “michael flynn guilty plea transcript” you f….g idiot. It’s the 1st thing up.

          As to your government at work, you and JT might want to be looking at the bungled job your cult leader is doing with a decades’ class crisis, which has included telling Governor’s they are in charge, then encouraging knuckle-draggers to storm state buildings in tight formation, issuing guidelines which he then praises governors and states for ignoring, using the DPA to force workers back to meat production plants with unemployment cut off if they refuse out of fear for their safety while protecting the employers from law suits, while at the same time refusing to use the DPA to obtain tests which along with contact tracing (no program for that either) are a necessary component to proper and successful reopening of our economy, and now hiding CDC issued guidelines for proper reopening.

          That’s you and JT’s government at work.

      3. Anywhere in the world , like the USA, that govt prosecutions have over a 90% success rate it’s apparent to anyone that admits it that those govt agencies are totally corrupt.

        AKA, fire/remove most all the top leadership unless they were actively attempting to expose all that abuse of govt power.

        I’d go so far as to have those buildings bulldozed with the rouble left as reminder/W a monument at the site for all to see/ponder.

        We can’t have a govt hold together unless the public has confidence in it.

      4. Mespo, I’m a better father than to enlist my kids in a possible criminal enterprise as a hired unregistered agent for a foreign country involved in possible plans to kidnap a legal visitor to America and shipping him to a murderous dictator. How about you? Flynn, jr was fully involved in his father’s business and in his mid-30’s no babe in the woods.

        Perhaps you could address the issues raised in my post which include:

        – Flynn’s clear and complete admitting of guilt under oath and his dismissal of objection to alleged FBI misbehavior, or any extenuating circumstances.
        – the judges factual recitation of what he was admitting to, which was delivering the payoff for services rendered to the Russians.

        Hopefully the judge will not accept this travesty by Barr, 2nd chance and civil rights crusader for Trump cronies.

        1. – Flynn’s clear and complete admitting of guilt under oath and his dismissal of objection to alleged FBI misbehavior, or any extenuating circumstances.
          – the judges factual recitation of what he was admitting to, which was delivering the payoff for services rendered to the Russians.
          Oh stop the lying

          There was nothing said by the judge or Flynn that even vaguely suggested anything about “delivering the payoff for services rendered to the Russians”. that is just a flat out lie.

          There is no doubt that the intelligence community assisted in the deception that resulted in the phony Mueller investigation by promoting the phony story that Russia had influenced the election.

          What that should tell you is that the IC was helping Trump create the phony Mueller investigation (AKA Russiagate). The Intelligence Community does not speak the truth. The narratives they provide are the stories they want you to believe are the truth in order to support the agenda that they support. There is no doubt the Intelligence Community is heavily involved in creating the sham Mueller investigation by creating the equally sham Russia collusion story.

    2. lol….you left out the part where the interviewing agent said he didn’t lie!

      1. you left out the part where the interviewing agent said he didn’t lie!
        Turley also left out that important fact, also. turley pretends that the FBI prosecuted Flynn. That’s a lie.

        It was the sham Mueller investigation with the help of Flynn and Comey and Trump that cooked up the story that Flynn had lied!
        Both Trump and Comey pretended that Flynn had lied to the FBI even though the story on its face is not believable. Flynn knew in advance that the FBI had listened to the phone call and Flynn knew in advance that he had absolutely no reason to lie about what was said in that call.

        The trump administration took the Russia collusion investigation away from the FBI and gave it to their guy Mueller. Mueller created one phony story after another about Russia collusion and obstruction. Each of those phony stories was designed to eventually fall apart and unravel. The Flynn-lied-to-FBI story is just another example of one of the ridiculous stories created by the Mueller investigation that we now see falling apart.

    3. BTB: “We know Flynn is a traitor who lied to the FBI about telling the Russian Ambassador that for services rendered during the election, his boss wouldn’t uphold President Obama’s sanctions on his country”.
      As The Dude would say :
      Yeah, well, that’s just, like, your opinion, man.

      Especially since you cited NO evidence in support of that conclusion.

      1. tbirdal, the judge read the evidence in the excerpt from the transcript I posted and Flynn agreed to it before the court.

  6. This is but one aspect of the greater effort by democrats to challenge the authority of the duly elected president.

    It’s not amusing TDS. It’s capital criminal insurrection – a coup d’etat – treason.

    The conspirators who challenged the authority of the president in 1865, those who assassinated Lincoln, were hanged by the neck until dead within three months.

    A few short centuries ago, the participants in such a conspiracy would have been convicted of high treason and Drawn and Quartered, again, in timely fashion.

    1. Hanged first till almost dead, then drawn (guts cut out ) then cut into quarters.

      1. You do indeed have a facility, a way with words.

        I stand corrected.

        1. George– The procedure is described vividly in “Killers of the King” by Charles Spencer, a history of the fates of the men who executed Charles I. Very interesting reading.

  7. All those who have participated in this democrat scam on our nation should be outfitted in orange prison garb and perp walked down Pennsylvania Avenue to celebrate President Trump’s second inaugural parade. Then they should be sent to prison for a long time.

  8. Funny how Jonny rushes to the defense of repubs and now how belittles Biden because he does not want his entire written history put out to pasture in an election year. Yet no words on Trump not providing tax returns, not allowing government people to testify. and what about this: After Trump claimed to have seen evidence supporting the lab theory—but that he’s “not allowed” to divulge it—and after Secretary of State Mike Pompeo advertised “enormous evidence,” the Journal writes in an editorial that if this proof exists, they ought to show it. Not a peep out of repub sycophant Jonny. Sad..

  9. A Year Ago This Month:

    DOJ Refused To Release Transcripts Of Flynn’s Call To Russian Ambassador

    Federal prosecutors rebuffed a judge’s order to release by Friday highly classified transcripts of discussions that Michael T. Flynn, the president’s former national security adviser, had with the Russian ambassador during the presidential transition.

    The transcripts between Mr. Flynn and Sergey I. Kislyak, formerly Russia’s top diplomat in the United States, were expected to show that they talked in December 2016 about sanctions that the Obama administration had just imposed on Russia. Mr. Flynn initially denied those exchanges about sanctions both to Trump administration officials and the F.B.I. in the weeks after the discussions.

    The conversations prompted concerns among senior Obama administration officials about whether the Trump transition team was flouting norms about holding off on making policy until after taking office. The phone calls were also at the center of the scandal that eventually prompted Mr. Flynn’s ouster just weeks into President Trump’s term.

    The order last month from the judge, Emmet G. Sullivan of the Federal District Court in the District of Columbia, was unusual. The transcripts came from a secret F.B.I. wiretap of Mr. Kislyak, and their release would have provided an extraordinarily rare look at the fruits of the government’s eavesdropping. Agents routinely listen to wiretaps of foreign officials, but they remain among the government’s most closely held secrets.

    The calls between Mr. Flynn and Mr. Kislyak were referenced repeatedly in court documents and the special counsel’s report on Russian election interference but never released, and prosecutors have not acknowledged the existence of the wiretap. Judge Sullivan, who is overseeing Mr. Flynn’s case, ordered that audio recordings of his conversations with Mr. Kislyak be made public along with a voice mail message made by the president’s lawyer.

    The Justice Department’s refusal to comply with the judge’s order made clear that prosecutors had no interest in confirming the wiretap, which was approved by the secretive Foreign Intelligence Surveillance Court.
    “This would be a rare step to make public” such intelligence collection, said Joshua Geltzer, a former Justice Department official. “What you see in today’s filing is the government trying to avoid disclosing that material.”

    Instead, prosecutors asserted that they did not need to provide the transcripts because they were, in the end, not vital to the prosecution of Mr. Flynn. He pleaded guilty in December 2017 to lying to the F.B.I. after agents interviewed him about what was said on those calls.

    “The government further represents that it is not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record,” prosecutors wrote in a court filing responding to Judge Sullivan’s order.

    In another filing on Friday, prosecutors did comply with Judge Sullivan’s order to make public the message that Mr. Trump’s former personal lawyer John Dowd left for Mr. Flynn’s lawyer, Robert K. Kelner. Mr. Dowd left the message after learning on Nov. 22, 2017, that Mr. Flynn had withdrawn from a joint defense agreement with the president. The contents of that voice mail were first disclosed in April in Mr. Mueller’s report.

    Edited from: “Justice Department Keeps Wiretaps In Flynn Case, Rejecting Judge’s Order”

    The New York Times, 5/31/19

  10. Worth revisiting:

    “Matt Taibbi: FBI set up against Mike Flynn exposed”

    1. The Obama Coup D’etat in America is the most egregious abuse of power and the most prodigious scandal in American political history.

      The co-conspirators are:

      Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann, Comey,
      Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic, Yates, Baker, Bruce Ohr,
      Nellie Ohr, Priestap, Kortan, Campbell, Sir Richard Dearlove, Steele, Simpson,
      Joseph Mifsud, Alexander Downer, Stefan “The Walrus” Halper, Azra Turk, Kerry,
      Hillary, Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power, Lynch,
      Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama,
      James E. Boasberg et al.

  11. Man I hope Flynn will use every tool he can muster to out these ba$stards. This is disgusting stuff, and what happened to him needs to be set right. #revengeofflynn

  12. “We will stop him.”

    – Peter Strzok to FBI paramour LIsa Page

    “POTUS [Obama] wants to know everything we’re doing.”

    – Lisa Page to FBI paramour Peter Strzok

    1. Obama: “Not a smidgen of scandal.” But a few boulders od scandal indtead.

      1. Is there a medal for participation in the military campaign against the Obama Coup D’etat in America?

        1. Should be gold with an image of an attacking bald Eagle eviscerating a red-eyed screaming rat.

  13. JT: “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.”

    The shills who regularly come to this board have been put to shame by the good Professor. They are out there today showing themselves as the scum we all(including Turley) know they are 🙂

  14. Perhaps the Judge could just deny the motion by the clearly biased US Attorney and postpone sentencing to early next year after Biden appoints his replacement.

    1. Piper– Interesting thought and post. I was wondering what could be done with a degree in gender studies.

    2. Yeah! That’s the ticket! The Judge could just ignore all that “no basis” for an investigation stuff, and that troubling “no material” violation stuff! If Obama appointed him, you might get your wish!

      Squeeky Fromm
      Girl Reporter

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