In a stunning move, the Department of Justice has moved to dismiss Flynn's case
On Thursday, the Department of Justice filed a motion to dismiss the case against General Michael Flynn. In the accompanying 20-page legal brief, the DOJ documented facts establishing that, even as the FBI and DOJ were relentlessly prosecuting Flynn, conniving with his attorneys, and forcing him into a guilty plea, they always knew they had no case against him. These facts, though, haven't stopped leftists from demanding that Judge Sullivan deny the motion.
Because the DOJ finally, reluctantly, produced illegally withheld exculpatory evidence, we have the rough outlines of what the FBI and DOJ did to Flynn. We know from the FBI's own documents that on or before January 4, 2017, the FBI decided to close its investigation into Flynn because there was no evidence that he had connived with Russia against American interests. Peter Strzok, however, worked with the "7th Floor" (i.e., FBI leadership) to keep the case alive. The FBI leadership team then strategized how to force Flynn to lie and how to avoid giving him legal notice that lying to the FBI is a criminal act that could lead to prosecution.
Still, despite this knowledge, it wasn't certain that Attorney General Barr's Department of Justice would act. It was a wonderful surprise when the Department of Justice filed its Government's Motion To Dismiss The Criminal Information Against the Defendant Michael T. Flynn (which you can view here). It's too long a document to allow for a full analysis in this post (you'll find that in other posts), but here's the general outline:
The DOJ moved to dismiss the entire case because prosecuting Flynn would not advance justice. The legal ground for the withdrawal was that Flynn's statement to the FBI, even it was false, was not material — and materiality is an essential element of the alleged offense.
What's fascinating is the statement of facts. The DOJ stitches together the past week's revelations. It explains to the court that the FBI opened the case because (1) Flynn was one of Trump's foreign policy advisers, (2) he had a publicly documented connection with Russian-affiliated entities, and (3) he had traveled to Russia once. (All legal activities.)
It took just four months for the FBI to conclude that Flynn had not done anything wrong. On January 4, the FBI issued a Closing Communication explaining that, without "derogatory" information, the case should close. However, the FBI's leadership, with Peter Strzok's help, moved quickly to keep the case open. The justification was that Flynn, as Trump's incoming national security adviser, had talked on the phone with then–Russian ambassador Sergey Kislyak. The FBI had a transcript of the call, though, and knew that Flynn had said nothing wrong.
After Comey advised the DOJ's leadership about the call, senior officials at both the DOJ and the FBI urged him to let the incoming Trump administration know about the FBI's concerns. Comey relentlessly refused to talk to the Trump team, frustrating other officials. Instead, as Comey himself boasted, on January 24, 2017, just four days after Trump's inauguration, Comey took advantage of the White House's disorder to get to Flynn. Instead of going through White House counsel, which might have prevented the Flynn interview or warned Flynn about his rights, Comey had his agents contact Flynn directly to talk about the call with Kislyak.
Flynn readily agreed to the interview. He knew he had nothing to fear or hide because, as he said, "you [the FBI] listen to everything they [the Russians] say." During the interview, Flynn was relaxed and open. The agents failed to warn him that lying to them was a crime, but by the end of the interview, they didn't believe that Flynn had been lying, even though his memory was inaccurate in places. (The agents had the transcript, of course, which they never showed to Flynn.) Nevertheless, with Comey's pushing, Mueller's special counsel's office charged Flynn with a single count of making false statements.
It's a sordid tale in which out-of-control FBI management and vindictive special counsel are determined to destroy General Flynn. Trump's reaction was swift and on point: "They're scum, and I say it a lot. They're scum. They're human scum. This should never have happened in this country."
TRUMP ON DOJ DROPPING FLYNN CASE:— Breaking911 (@Breaking911) May 7, 2020
"What the Obama administration did, is unprecedented."
"I hope a lot of people will pay a big price because they are dishonest, crooked people."
"They're scum. They're human scum." pic.twitter.com/C4wN7tfcQp
While people interested in the rule of law and justice rejoiced about the news, leftists were horrified. The fact that Mueller admitted that there was no Russian collusion has not affected their belief that collusion existed. Likewise, they're unimpressed with the FBI's documents and testimony revealing a conspiracy.
CNN legal and national security analyst Susan Hennessey set the tone for the left:
This moment represents the full collapse of an apolitical Justice Department. An astonishing assault on the rule of law and in a functional DOJ it would prompt mass resignation. https://t.co/SBa8Ubl5NN— Susan Hennessey (@Susan_Hennessey) May 7, 2020
Anti-Trumpers followed her lead in lockstep, hoping Judge Sullivan would be their savior:
Flynn is guilty & should have been charged w treason. All the Deep State theories about @FBI cant erase the facts that Flynn contacted 🇷🇺 on behalf of T to assure Vlad sanctions would be lifted. Hopefully Judge Sullivan can put things right. Yates warned T too. https://t.co/ZbQoM4gjBu— Principessa Sandra (@bobswife64) May 8, 2020
Under Rule 48(a) of the Federal Rules of Criminal Procedure, a government motion to dismiss an indictment—even after a guilty plea—requires “leave of court.”https://t.co/V9V6GxHZ9f— Steve Vladeck (@steve_vladeck) May 7, 2020
That leave may well be forthcoming, but it’s up to Judge Sullivan, not DOJ—and is not automatic. pic.twitter.com/rTZwShgIpT
Judge Sullivan ain’t having none of this Barr crap. Hope he roasts them. Get yur popcorn ready. Flynn— John Forchione (@johnforchione) May 8, 2020
I hope Judge Sullivan has good security. He is the only federal justice member standing between Trump's dictatorship & the rule of law. Being serious. Trump's mob are dangerous. This is how tyrants take over. They use the chaos to destroy institutions. #resist— No WAYNE (@NoWAYNE3) May 8, 2020
General Flynn, meanwhile, had a much better response:
My grandson Travis...“and JUSTICE for ALL” ⚖️❤️🙏🇺🇸 pic.twitter.com/IuOGugjOC3— General Flynn (@GenFlynn) May 7, 2020