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. I sincerely hope that Flynn’s response opens the gate for the continuance of using the Military to go after those who DID violate or did not take their oath of office. Minus of course those who were one of the REMF’s to whom it also applies.

  2. Another Turley attempt to normalize abject criminality on Trump’s part. Turley knows that only a Trump supporter would jump thru anything to believe a obvious attempt to have a alternative reality of law and order. “Facts don’t cease to exist simply because they are ignored” A. Huxley.

    1. Fishy – what “abject criminality on Trump’s part” are you referring to? We don’t see the facts on that. We are, however, seeing boat loads of “facts” that suggest there was “abject criminality” on the part of the Obama administration’s FBI and DOJ. Is that what you meant to say? Because as you quoted, “facts don’t cease to exist simply because they are ignored.”

    1. Im going to answer your question with a question. If you are the victim of a holdup by a criminal holding a gun and you hand him your wallet and jewelry, are you the victim of a crime? After all, you GAVE these items to the guy holding the gun, he did not take them from you.

      Flynn lied to the Court to protect his son who had not done anything wrong, most parents would do what Flynn did—well, I would. Interestingly, despite being pressured by prosecutors in his partners trial, Flynn refused to lie, and he was not called as a witness. The Justice Dept then told the judge that Flynn was not honoring his plea deal.

      1. @Debra F:

        You claim “Flynn lied to the Court to protect his son who had not done anything wrong.”

        But you present zero evidence that Flynn lied to the court when he was under oath, much less that his sole reason for doing so was to protect his son or that his son had done nothing wrong.

        I’m open to being convinced with evidence. Do you have any evidence that Flynn lied to the court? Certainly the DOJ filing yesterday — doesn’t assert that (if you doubt this, here’s a link to the filing: )

        1. Thank you for the link. I read the motion and I was surprised they didn’t mention anything about coercion. I can only hope with good reason. I’ve also included some court documents to answer your questions.

          First is General Flynn’s affidavit filed with his motion to withdraw his plea.

          Second is the judge’s opinion overturning Flynn’s partners conviction for violations of the FARA act. I’ve inferred if the partner didn’t violate the FARA, then neither did the son. In the same opinion, the judge also granted the defense’s motion for a new trial should the conviction be reinstated on appeal. I’m not an attorney but I think that judge is unhappy about something.

          Third is Flynn’s Supplemental Motion and Brief in Support to withdraw his guilty plea. It is probably overly simplistic to state that General Flynn pleaded guilty solely to protect his son, although I don’t doubt that played a large role in his decision. There were a variety of factors in play, an opportunistic DOJ/SCO (Special Counsel Office, ie Mueller) looking for a scalp (don’t forget when Flynn pleaded guilty the press was convinced Trump was next, either via Obstruction of Justice or Russia Collusion), and a highly regarded law firm that placed its reputation ahead of its client’s best interests. Even more concerning, given the inexplicable actions of this law firm, are some of the names on their partners. Everything about this case is highly troubling, except Sydney Powell. She has done amazing work.

  3. This is not enough. This man’s life is in ruins. At a minimum ALL his Legal fees and expenses should be reimbursed.

    1. He lied to V.P. Pence and other members of the transition team.
      He lied to the FBI, which is illegal (and he stated under oath that he knew it was illegal: Judge Sullivan to Flynn: “Were you not aware that lying to FBI investigators was a crime?” Flynn’s response: “I was aware.”).
      He worked as an unregistered foreign agent for Turkey, which is also illegal. He wasn’t indicted for that as part of his plea deal, but if the judge accepts the DOJ’s recommendation, his plea deal goes away, and he can now be charged for the FARA violation.

      To the extent that his life is in ruins, it’s because of choices he made contrary to his oath to abide by the law and uphold the Constitution.

      1. It’s hard to know where to begin with you. Are you sure that you don’t get paid from MoveOn? Anyway, do you know he lied to other members of the transition team? 2. The FBI agents that interviewed Flynn wrote that they did not believe he lied to them. 3. Trade this lie for another lie and you are saying Judge Sullivan is in on this tit for tat? WOW. What the hell have you done for your country for the past 33 years?
        What a hack you are. And not very good at it either.

        1. @delmaracer:

          “Are you sure that you don’t get paid from MoveOn?”

          A rather bizarre thing for you to wonder about based solely on my comment, but the answer is “yes.”

          “ do you know he lied to other members of the transition team?”

          Here, for example, is a statement from the Mueller Report (Vol 1, pp. 59-60), backed by interview transcripts: “… Flynn maintained that he had not discussed sanctions with Kislyak.131 Flynn repeated that claim to Vice President-Elect Michael Pence and to incoming press secretary Sean Spicer.132 In subsequent media interviews in mid-January, Pence, Priebus, and Spicer denied that Flynn and Kislyak had discussed sanctions, basing those denials on their conversations with Flynn.133,” with footnotes specifying the evidence. The claim “he had not discussed sanctions with Kislyak” was a lie, per Flynn’s subsequent statements. So that’s at least two other members of the transition team he lied to: Spicer and Priebus.

          2. The FBI agents that interviewed Flynn wrote that they did not believe he lied to them.

          Their belief doesn’t determine whether he lied. People are often mistaken in their beliefs. Flynn has signed a statement under penalty of perjury that he lied, and he also testified under oath, stating that he lied. Do you accept that he lied, or are you instead suggesting that he committed perjury in saying that he lied?

          “3. Trade this lie for another lie and you are saying Judge Sullivan is in on this tit for tat?”

          I neither said nor implied anything about Judge Sullivan. Straw man arguments are a common fallacy, and I suggest that you avoid them:

          “What a hack you are. And not very good at it either.”

          Ad hominem is another common fallacy, and I suggest that you avoid that too:

          Do you have a response that doesn’t draw on fallacies?

  4. Oh Gee, the DNC shills here like bytheDNCscript, Seth Warner/Peter Shill, and Bad Anonymous are going apesh!t over this. They are just throwing up everything they can to avoid having to face reality – that Flynn was politically railroaded by the Obama Administration. They deserve an Irish Poem:

    Spinning, Out of Control???
    An Irish Poem by Squeeky Fromm

    There once were some goobers who spun,
    Whatever they could, just for fun!
    Then, the Flynn case got dropped,
    And their story, it flopped –
    But that didn’t mean they were done!

    Oh no! They just ramped up the spinning!
    With lies and half-truths they were ginning.
    They couldn’t admit,
    They were just full of sh_t!
    As for me, I am NOT tired of winning!

    Squeeky Fromm
    Girl Reporter

      1. Mespo – when emperor, please make me your tax advisor. I will do a good job. 😁

        1. WW33:
          You’re in, now if we can just get TIA to serve as Minister of Education. Paul’s handling Governor of Arizona. Squeeky is Poet Laureate and I’m working on jobs for Allen, Olly, and Oky1. Mr. K has that AG spot and estovir is Minister of Health and Personal Training. Nick is Director of Covert Intelligence. Lots more posts should anyone care to apply. Independent Bob is, of course, Minister of Independence. Apologies to those I missed but I’m busy designing the crown.

          PS: Seth, I’m keeping that Ministry of Propaganda open for you! LOL.

          1. Hahaha, yes! 🤝👏👍👊

            Being in charge of the whole tax scheme makes me rather ecstatic.

          2. mespo – couldn’t I be Gov. of the Ninth District? The rest are getting cushing jobs at HQ and here I am in the desert still.

                  1. mespo – I do apologize, Your Royal Generalissimo. I do suggest such a glorious title requires a military regalia, not a crown.

                    1. Paul:

                      “I do suggest such a glorious title requires a military regalia, not a crown.”
                      Sash and epaulets, it is then. Maybe a helmet, too.

                    2. mespo – you need lots of fake medals on your chest as well, to show your military prowess.

  5. Russia,Russia.Russia. There was no collusion! It was a big nothing burger after all. Again a gift that keep on giving.

  6. Barr Says He’s ‘Restoring Confidence’

    But Critics Claim Barr Is Compromised

    In an interview Thursday with CBS News, the attorney general emphasized he believes the Justice Department’s “duty, we think, is to dismiss the case.” “A crime cannot be established here. They did not have a basis for the counterintelligence investigation against Flynn at that stage,” Barr said. When asked if Flynn lied to the FBI, Barr responded, “Well, you know, people sometimes plead to things that turn out not to be crimes.” Trump has also naturally praised the DOJ’s decision, telling reporters Thursday that Flynn is an “innocent man” who is now “an even greater warrior.” “He is a great gentleman. He was targeted by the Obama administration and he was targeted in order to try and take down a president, and what they’ve done is a disgrace, and I hope a big price is going to be paid,” Trump said.

    While Barr insisted Thursday that he wanted the dismissed charges to “restore confidence in the system” and show people “there’s only one standard of justice,” however, his critics see the decision as instead accomplishing the total opposite. Former FBI officials and Democrats sharply criticized the legal motion Thursday, painting the move as yet another example of Barr’s sycophantic tendency to use the DOJ as a tool to carry out Trump’s bidding. Comey tweeted that the Justice Department has “lost its way,” while former acting FBI Director Andrew McCabe slammed the motion as “[having] nothing to do with the facts or the law—it is pure politics designed to please the president.” “The Department’s position that the FBI had no reason to interview Mr. Flynn pursuant to its counterintelligence investigation is patently false, and ignores the considerable national security risk his contacts raised,” McCabe said in a statement.

    Edited from: “William Barr’s DOJ Officially Moves To Drop Charges Against Michael Flynn”

    Vanity Fait, 5/7/20

    1. Seth:
      You could save some time and just cut and paste the entire “Communist Manifesto” then we’d get all your tripe in one sitting.

    2. It appears that only the ‘left’ side of ur brain is working. There is no balance of thought, whatsoever. You would have fit perfectly on the Mueller team, which is now also discredited. That entire report can only be a fire-starter.

  7. Flynn Flipped On Trump, Then Flopped Back 

    The whole process is stunning: Flynn was accused of committing several crimes, admitted to one to try to get himself off easy, agreed to cooperate, reneged on the deal, and is now free, having escaped punishment for both the crime to which he confessed and those on which he avoided prosecution.

    Yet Flynn’s escape is not merely an isolated outrage. It is also a test case for loyalty to Trump. Since Flynn flipped on Trump, and then flopped back, his fate offers a lesson for others who might find themselves in a bind and tempted to turn on Trump, who continues to engage in the sort of behavior that got him impeached.

    If there is any doubt about the White House’s role, the president telegraphed the outcome of this case on April 30, when he was asked whether he’d pardon Flynn. Trump said he didn’t think he’d have to.

    “Well, it looks to me like Michael Flynn would be exonerated based on everything I see,” he said. “Look, I’m not the judge, but I have a different type of power. But I don’t know that anybody would have to use that power.”

    This wasn’t just good guessing—it was a self-fulfilling prophecy. The Trump-Barr Justice Department appears to have different standards based on one’s political allegiance: For Trump critics, such as former FBI Deputy Director Andrew McCabe, and political opponents, such as the Biden family, it looks high and low for a way to investigate or prosecute, leaning on novel or untested legal theories. But for loyalists (even a prodigal loyalist such as Flynn), it offers the benefit of every doubt, or at least does its best to soften the penalties (as it did for Roger Stone).

    Cooperation deals are supposed to show criminals that returning to the fold and honoring rule of law has its benefits. But the Flynn case shows that those benefits pale in comparison to honoring loyalty to Trump.

    Edited From: “Why Is Michael Flynn Walking Free?”

    The Atlantic, 5/7/20

    1. Lying is “several crimes” to you? But do YOU have any original thought?

  8. After Pleading Guilty, Flynn Fired His Lawyer And Hired Conservative Commentator

    Flynn later decided that he had received poor counsel and withdrew his guilty plea. Last summer, he fired his attorneys and replaced them with Sidney Powell, a conservative commentator who’d authored a book-length indictment of the Mueller investigation titled Licensed to Lie: Exposing Corruption in the Department of Justice. Last week, Powell and his team argued that recently disclosed FBI emails and notes demonstrated that Flynn had been trapped into lying, and proved that the interview itself had lacked any legitimate basis. “If we’re seen as playing games, WH will be furious,” one page of these notes reads. “Protect our institution by not playing games.” It is not clear how these documents prove that the FBI had no legitimate reason to interview a member of the Trump campaign who had lied about his contacts with a Russian official as part of an investigation into potentially illicit cooperation between the Trump campaign and Russian government.

    Nevertheless, Bill Barr’s Justice Department found Powell’s case persuasive. Last week, Brandon Van Grack, a prosecutor from Mueller’s team who had been assigned to Flynn’s case, withdrew as the government’s counsel. Meanwhile, Jeff Jensen, a U.S. Attorney whom Barr had appointed to review the department’s handling of Flynn, recommended that it drop all charges. On Thursday, this position was made public in an official filing, in which the federal government declared that the FBI’s interview of Flynn had been “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” and was therefore “conducted without any legitimate investigative basis.”

    “Moreover, we do not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt,” the filing claimed.

    In sum: The arc of Michael Flynn’s case was long, but it bent toward the debasement of justice.

    Edited from: “Trump’s DOJ Says It Can’t Prove Michael Flynn Did The Crime He Confessed To”

    New York Magazine, 5/7/20

  9. Many Legal Pros Quetion Barr’s Reasoning

    A range of former prosecutors struggled to point to any previous instance in which the Justice Department had abandoned its own case after obtaining a guilty plea. They portrayed the justification Mr. Shea pointed to — that it would be difficult to prove to a jury beyond a reasonable doubt that the lies were material — as dubious.

    “A pardon would have been a lot more honest,” said Samuel Buell, a former federal prosecutor who now teaches criminal law at Duke University.

    The law regarding what counts as “material” is extremely forgiving to the government, Mr. Buell added. The idea is that law enforcement is permitted to pursue possible theories of criminality and to interview people without having firmly established that there was a crime first.

    James G. McGovern, a defense lawyer at Hogan Lovells and a former federal prosecutor, said juries rarely bought a defendant’s argument that a lie did not involve a material fact.

    “If you are arguing ‘materiality,’ you usually lose, because there is a tacit admission that what you said was untrue, so you lose the jury,” he said.

    No career prosecutors signed the motion. Mr. Shea is a former close aide to Mr. Barr. In January, Mr. Barr installed him as the top prosecutor in the district that encompasses the nation’s capital after maneuvering out the Senate-confirmed former top prosecutor in that office, Jessie K. Liu.

    Edited From: “Never Seen Anything Like This: Experts Question Dropping Of Flynn Prosecution”

    The New York Times, 5/7/20

    1. Hey SW, I surely doubt that nearly all of us on this blog don’t need you to give us the news from The Atlantic, The NYT, The NYragazine, et al. Ah, but not an original thought in any of them.


    Glenn Greenwald

    “If you’re going to form an opinion on the DOJ’s motion to dismiss the case against Michael Flynn, you owe it to yourself to at least read the DOJ’s statement of facts about why this investigation was such a sham. Jim
    @Comey was systematically corrupt:”

    (The same link posted by Jonathan Turley.)

    1. If you’re going to form an opinion on the DOJ’s motion to dismiss the case against Michael Flynn, you owe it to yourself to at least read the DOJ’s statement of facts

      The DOJ statement of facts confirm that the FBI had nothing to do with the decision to prosecute and enter a plea of guilty, The facts show that the FBI had concluded that Flynn had not been deceptive during the interview and had answered the questions to the best of his recollection. After all Flynn was on vacation in the Caribbean at the time he was contacted by Kislyak so it is understandable if he did not get some irrelevant detail verbatim.

      The phony story that Flynn lied to the FBI was cooked up by Trump and Comey and Mueller and Flynn. This was just one of many phony stories that came from the Mueller investigation. The Mueller investigation was a sham investigation created by Rosenstein who was hired by Trump to carry out that job. The Trump administration, thru Rosenstein, always had complete control of what was going on inside the Mueller investigation.
      The BS stories of collusion and obstruction were all fabricated to be flimsy and easy to unravel.

      The purpose of the Mueller investigation was to make it look like there was this giant deep state conspiracy against Trump when in fact the Mueller investigation was doing nothing but create a long line of phony stories that the media would gush hype over. Time and time again the MSM announced that it was the end of the Trump presidency and each and every one of the phony stories end up making trump look good when the phoniness of the story is eventually revealed. The phony Flynn-lied story is now falling apart just as it was designed to fall apart when it was created.

      1. Jinn, you started off strong but you should have stopped typing after the second paragraph. Because all that stuff about Trump and Rosenstein is nonsense, Rosenstein is the guy who suggested secretly recording Trump in the Oval Office in order to remove him as president. Because Rosenstein didn’t think Trump should have fired Comey.

        1. Rosenstein didn’t think Trump should have fired Comey.
          Ha Ha Ha you have to be an idiot to believe that.

          Rosenstein wrote a memo entitled “Restoring Public Confidence in the FBI” that explained why Comey had to go. That memo was used as the justification for terminating of Comey.

          Trump had to wait several months until Rosenstein was confirmed by the Senate because Sessions had recused and could not get involved in the Russia investigation. Once Rosenstein was sworn in things started to happen fast. Without a cooperative AG (or acting AG) it would not be possible for the Trump administration to takeover the Russia investigation and use it for their own purposes.

          First Rosenstein wrote the letter, then Comey was fired based on the letter, then Rosenstein Mueller and Trump had a secret meeting in the oval office and then the next day Rosenstein announced that Mueller would be Special Counsel to investigate the Russia interference in the election and any related matters. The next day Rosenstein ordered the FBI to end all investigations of the White House and Russia involvement in the election and to turn over everything they had to Mueller.
          At that point the takeover was completed and the Trump administration had total control of the Russiagate narrative.

          Rosenstein is the guy who suggested secretly recording Trump in the Oval Office
          Get your facts straight
          He asked McCabe if that is what the FBI wanted. Several Days later Rosenstein ordered McCabe to end all investigations of anyone connected to the White House and to turn over all files of past investigations to Mueller.
          The FBI had absolutely no involvement in the prosecution of Flynn. It was completely out of their hands. The Trump administration had complete control and Flynn could be prosecuted only if Rosenstein (and Trump) approved it.

  11. Why Was Flynn Reassuring The Russian Ambassador?

    Why was the Trump administration so eager to blunt the punishment Obama gave to Russia for what we now know was gross interference in our presidential election? In his Dec. 29 expulsion of 35 Russian diplomats, Obama was trying to impose costs on an adversary. The evidence shows that Flynn wanted to reassure this same adversary and to avoid confrontation.

    How do we know that was Flynn’s intention? Because he said so in his Nov. 30, 2017, guilty plea admitting he had made false statements about his conversations with Kislyak. The “statement of the offense” that accompanied the agreement states that on Dec. 29, 2016, after discussions with another transition team official, Flynn “called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.”

    Was Flynn improperly tricked in his Jan. 24, 2017, interview with the FBI into misstating what he had told Kislyak? If so, why did he resign and later plead guilty?

    In Flynn’s Feb. 13, 2017, resignation letter, he admitted that he had made misleading statements to Vice President Pence about the Kislyak call. Here’s how he put it: “Because of the fast pace of events, I inadvertently briefed the Vice President Elect and others with incomplete information regarding phone calls with the Russian ambassador.” That’s not the FBI talking, it’s Flynn. And the question, again, is why he misstated the facts

    Edited from: “If Michael Flynn Did Nothing Wrong, Why Didn’t He Tell The Truth?”

    Today’s Washington Post 

    1. Why was the Trump administration so eager to blunt the punishment Obama gave to Russia for what we now know was gross interference in our presidential election?
      The problem is we do not know anything at all about Russian interference.
      For all we know the CIA hacked the DNC server and made it look like the Russians did it. We have as much evidence for that story as any other.

      We do know the case against Russian trolls fell apart when the accused challenged it in court.

      1. after reviewing transcripts:

        To be clear, Crowdstrike says it believes Russians hacked into DNC. But it admits to not having direct evidence that Russians actually exfiltrated the emails from DNC. This would track w/ what Assange has said: Russia may have hacked DNC, but they didn’t provide stolen emails. @aaronjmate

        I want to stress what a pretty big revelation this is. Crowdstrike, the firm behind the accusation that Russia hacked & stole DNC emails, admitted to Congress that it has no direct evidence Russia actually stole/exfiltrated the emails. @aaronjmate

        1. Gee, that kind of undermines the whole thing huh. And pretty damning that FBI did not follow its own SOP evidentiary procedures and take the DNC computers into custody.,

          Like Binney said, it was a leak not a hack.

          With these understandings, it makes sense.

    2. Well, you have to believe that the current WP (once a newspaper that was honest) is NOT writing their today’s story with just a wee bit of the slight of hand!
      Ya can’t forget that they were but 1 of numerous fake news papers that clearly desired the removal of a dully elected President of the United States. By any means!
      They called for and supported the overthrow of a dully elected President.

      That goes beyond the Berkley free speech rights. It borders on actions to overthrow this elected government – all because your all a bunch of sore losers. And now your pain will become migraine proportions.
      Least we forget that this whole sordid affair went all the way to the White House of the former President!
      Yup, Change We Can Believe In.

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