The DOJ's motion to dismiss reveals Comey's arrogance and malice

Because of document releases earlier this week, there was some familiar material in the Department of Justice's revelations about FBI misconduct in its Government's Motion to Dismiss the Criminal Information against the Defendant Michael T. Flynn.  (You can read the brief here.)  What came as a complete surprise, though, was to learn from the brief about Comey's role in persecuting (as well as prosecuting) General Flynn, seemingly with an eye to destroying Flynn and Trump.

The general outlines of the brief are simple: the Department of Justice says the FBI failed to make a case that General Flynn's alleged falsehoods were material.  The legal standard for prosecuting someone for lying to the FBI is that the lie must be material.

In this case, because the FBI had a transcript of Flynn's December 2016 phone conversation with then–Russian ambassador Sergey Kislyak, and because Flynn made it clear that he knew that the FBI was familiar with the conversation, nothing he said was material.  When Mueller decided to prosecute Flynn, everyone also knew that Trump and his team hadn't collaborated with Russia and that Flynn was acting in America's interest (and within his role as incoming national security adviser) when he spoke with Kislyak.

The above is "old" news.  What was new in the brief came from other declassified material, primarily from interviews with Sally Yates, who was the acting head of the Department of Justice at the time these events were taking place.

This new material shows that Comey ignored all advice to discuss with the incoming Trump administration any concerns the FBI had about Flynn.  Instead, Comey deliberately bent or broke the rules to blindside Flynn in order to induce him to lie so that he could then be prosecuted.

Here's the narrative from the Motion to Dismiss regarding Comey's appalling and probably illegal conduct.  For narrative fluidity, I've deleted the citations to the record:

Around this time, FBI Director James Comey advised DOJ leadership of its investigation into Mr. Flynn, and senior officials at both the FBI and DOJ had concerns that the incumbent White House officials' descriptions of Mr. Flynn's calls with Kislyak were not accurate. FBI Director Comey took the position that the FBI would not notify the incoming Trump administration of the Flynn-Kislyak communications. Deputy Attorney General Sally Yates and other senior DOJ officials took the contrary view and believed that the incoming administration should be notified. Deputy Attorney General Yates and another senior DOJ official became "frustrated" when Director Comey's justifications for withholding the information from the Trump administration repeatedly "morphed," vacillating from the potential compromise of a "counterintelligence" investigation to the protection of a purported "criminal" investigation. compare Ex. 5 at 5 ("[W]e had an open counterintelligence investigation on Mr. Flynn"), with Ex. 4 at 4 ("Comey had said something to the effect of there being an 'ongoing criminal investigation'"). The Deputy Attorney General, Director of National Intelligence, and Director of the Central Intelligence Agency all agreed that the FBI should notify the incoming Trump administration of what had actually been said on the calls. FBI Director Comey continued to refuse to brief the White House in a subsequent conversation with CIA Director John Brennan. On January 23, 2017, then Acting Attorney General Yates met with senior DOJ officials, and they again discussed the need to press the FBI to notify the White House.

Matters came to a head on January 24, 2017. That morning, Yates contacted Director Comey to demand that the FBI notify the White House of the communications. Director Comey did not initially return her call. When Director Comey called her back later that day, he advised her that the FBI agents were already on their way to the White House to interview Mr. Flynn. Acting Attorney General Yates was "flabbergasted" and "dumbfounded," and other senior DOJ officials "hit the roof" upon hearing of this development, given that "an interview of Flynn should have been coordinated with DOJ."

In fact, in the preceding days, senior officials at the FBI had been engaged in discussions about how to approach Mr. Flynn and whom to notify. On January 21, 2017, Mr. Strzok proposed to Bill Priestap, the FBI's counterintelligence chief, that Mr. Flynn should be given a "defensive briefing" about an investigation under the Crossfire Hurricane umbrella or alternatively an "interview under light 'defensive briefing' pretext."  Mr. Strzok also noted that DOJ might "direct[] us" to inform "VPOTUS or anyone else," speculating that this could lead to the "WH specifically direct[ing] us not to" speak with Mr. Flynn. On January 22, 2017, a FBI attorney emailed Mr. Strzok and Ms. Page that "if we usually tell the WH, then I think we should do what we normally do," though the official also noted that they could be "told not to [] debrief or interview Razor."

In advance of the interview, Director Comey determined that they would go interview Mr. Flynn the following day without notifying either DOJ or the White House. In a December 2018 interview with MSNBC and NBC News analyst Nicolle Wallace, he stated this course of action was "something we, I probably wouldn't have done or gotten away with in a [] more organized administration." Messages between Mr. Strzok and Ms. Page on January 23, 2017, indicated that "Bill" had conducted "several conversations with Andy [McCabe]" because "he wanted to know why we had to go aggressively doing these things, openly." On the morning of January 24, 2017, follow-up messages between Mr. Strzok and Ms. Page indicated that "Bill … brought [it] up – again, this time in front of D[irector Comey]" and that Deputy Director McCabe was "frustrated" and "cut him off." In any event, that morning, Deputy Director McCabe called Mr. Flynn to arrange the interview. He explained that recent media statements about his contacts with Kislyak merited a "sit down" and expressed the FBI's desire to accomplish the interview "quickly, quietly and discretely as possible." Deputy Director McCabe further advised that if Mr. Flynn wished to have anyone else at the meeting, including the White House Counsel, the FBI would have to elevate the issue to DOJ. Mr. Flynn, himself a former Director of the Defense Intelligence Agency, stated that he readily expected that the FBI already knew the contents of his conversations with the ambassador, stating: "you listen to everything they say." Mr. Flynn then agreed to meet with the interviewing agents in his office less than two hours later.

There is no way one can read the above statement of facts and still conclude that Comey was acting in the best interest of justice, law, or America.  At a guess, Comey was trying to atone for his greatest sin, which was to interfere with the 2016 election.  On July 5, 2016, he went before America and recited in detail Hillary's many national security violations, only to conclude that Hillary should not be prosecuted because her conduct did not meet the legal standards for a criminal act.  Comey was wrong at three levels: he spoke publicly about an ongoing investigation, he arrogated to himself the attorney general's decision about whether to prosecute a crime, and he misstated the legal standard for violating national security laws.

By making his statement, Comey gave fuel to those who opposed Hillary, because they could point to her criminal conduct, and he gave succor to those who supported Hillary because they could look to the decision not to prosecute.  Comey's bizarre behavior might therefore have been a net neutral, but on October 28, 2016, immediately before the election, he sent out a letter stating that law enforcement had found Hillary's emails on Anthony Weiner's computer as part of the investigation into Weiner's text messages to a 15-year-old girl.  Weiner was then married to Huma Abedin, Hillary's aide and close friend.

Within a couple of days — too little time within which to review all the emails — Comey sent out the "all clear" for Hillary.  By that time, though, the Democrat narrative was set: Comey lost the election for Hillary.

With his vicious, unprincipled, and illegal behavior surrounding the Russia collusion hoax and, specifically, the Flynn investigation, perhaps Comey was trying to make things right with the Democrats.  Maybe he destroyed Hillary's chance at the White House, but he was damned well going to destroy Trump's presidency, too.

With news of the motion to dismiss Flynn's case, Comey posted another of his self-righteous tweets, something he always does when he's feeling the heat:

I will look forward to a 3 A.M. FBI raid on Comey's house and the pleasant spectacle of him attired in a men's extra-long orange prison jumpsuit.

Because of document releases earlier this week, there was some familiar material in the Department of Justice's revelations about FBI misconduct in its Government's Motion to Dismiss the Criminal Information against the Defendant Michael T. Flynn.  (You can read the brief here.)  What came as a complete surprise, though, was to learn from the brief about Comey's role in persecuting (as well as prosecuting) General Flynn, seemingly with an eye to destroying Flynn and Trump.

The general outlines of the brief are simple: the Department of Justice says the FBI failed to make a case that General Flynn's alleged falsehoods were material.  The legal standard for prosecuting someone for lying to the FBI is that the lie must be material.

In this case, because the FBI had a transcript of Flynn's December 2016 phone conversation with then–Russian ambassador Sergey Kislyak, and because Flynn made it clear that he knew that the FBI was familiar with the conversation, nothing he said was material.  When Mueller decided to prosecute Flynn, everyone also knew that Trump and his team hadn't collaborated with Russia and that Flynn was acting in America's interest (and within his role as incoming national security adviser) when he spoke with Kislyak.

The above is "old" news.  What was new in the brief came from other declassified material, primarily from interviews with Sally Yates, who was the acting head of the Department of Justice at the time these events were taking place.

This new material shows that Comey ignored all advice to discuss with the incoming Trump administration any concerns the FBI had about Flynn.  Instead, Comey deliberately bent or broke the rules to blindside Flynn in order to induce him to lie so that he could then be prosecuted.

Here's the narrative from the Motion to Dismiss regarding Comey's appalling and probably illegal conduct.  For narrative fluidity, I've deleted the citations to the record:

Around this time, FBI Director James Comey advised DOJ leadership of its investigation into Mr. Flynn, and senior officials at both the FBI and DOJ had concerns that the incumbent White House officials' descriptions of Mr. Flynn's calls with Kislyak were not accurate. FBI Director Comey took the position that the FBI would not notify the incoming Trump administration of the Flynn-Kislyak communications. Deputy Attorney General Sally Yates and other senior DOJ officials took the contrary view and believed that the incoming administration should be notified. Deputy Attorney General Yates and another senior DOJ official became "frustrated" when Director Comey's justifications for withholding the information from the Trump administration repeatedly "morphed," vacillating from the potential compromise of a "counterintelligence" investigation to the protection of a purported "criminal" investigation. compare Ex. 5 at 5 ("[W]e had an open counterintelligence investigation on Mr. Flynn"), with Ex. 4 at 4 ("Comey had said something to the effect of there being an 'ongoing criminal investigation'"). The Deputy Attorney General, Director of National Intelligence, and Director of the Central Intelligence Agency all agreed that the FBI should notify the incoming Trump administration of what had actually been said on the calls. FBI Director Comey continued to refuse to brief the White House in a subsequent conversation with CIA Director John Brennan. On January 23, 2017, then Acting Attorney General Yates met with senior DOJ officials, and they again discussed the need to press the FBI to notify the White House.

Matters came to a head on January 24, 2017. That morning, Yates contacted Director Comey to demand that the FBI notify the White House of the communications. Director Comey did not initially return her call. When Director Comey called her back later that day, he advised her that the FBI agents were already on their way to the White House to interview Mr. Flynn. Acting Attorney General Yates was "flabbergasted" and "dumbfounded," and other senior DOJ officials "hit the roof" upon hearing of this development, given that "an interview of Flynn should have been coordinated with DOJ."

In fact, in the preceding days, senior officials at the FBI had been engaged in discussions about how to approach Mr. Flynn and whom to notify. On January 21, 2017, Mr. Strzok proposed to Bill Priestap, the FBI's counterintelligence chief, that Mr. Flynn should be given a "defensive briefing" about an investigation under the Crossfire Hurricane umbrella or alternatively an "interview under light 'defensive briefing' pretext."  Mr. Strzok also noted that DOJ might "direct[] us" to inform "VPOTUS or anyone else," speculating that this could lead to the "WH specifically direct[ing] us not to" speak with Mr. Flynn. On January 22, 2017, a FBI attorney emailed Mr. Strzok and Ms. Page that "if we usually tell the WH, then I think we should do what we normally do," though the official also noted that they could be "told not to [] debrief or interview Razor."

In advance of the interview, Director Comey determined that they would go interview Mr. Flynn the following day without notifying either DOJ or the White House. In a December 2018 interview with MSNBC and NBC News analyst Nicolle Wallace, he stated this course of action was "something we, I probably wouldn't have done or gotten away with in a [] more organized administration." Messages between Mr. Strzok and Ms. Page on January 23, 2017, indicated that "Bill" had conducted "several conversations with Andy [McCabe]" because "he wanted to know why we had to go aggressively doing these things, openly." On the morning of January 24, 2017, follow-up messages between Mr. Strzok and Ms. Page indicated that "Bill … brought [it] up – again, this time in front of D[irector Comey]" and that Deputy Director McCabe was "frustrated" and "cut him off." In any event, that morning, Deputy Director McCabe called Mr. Flynn to arrange the interview. He explained that recent media statements about his contacts with Kislyak merited a "sit down" and expressed the FBI's desire to accomplish the interview "quickly, quietly and discretely as possible." Deputy Director McCabe further advised that if Mr. Flynn wished to have anyone else at the meeting, including the White House Counsel, the FBI would have to elevate the issue to DOJ. Mr. Flynn, himself a former Director of the Defense Intelligence Agency, stated that he readily expected that the FBI already knew the contents of his conversations with the ambassador, stating: "you listen to everything they say." Mr. Flynn then agreed to meet with the interviewing agents in his office less than two hours later.

There is no way one can read the above statement of facts and still conclude that Comey was acting in the best interest of justice, law, or America.  At a guess, Comey was trying to atone for his greatest sin, which was to interfere with the 2016 election.  On July 5, 2016, he went before America and recited in detail Hillary's many national security violations, only to conclude that Hillary should not be prosecuted because her conduct did not meet the legal standards for a criminal act.  Comey was wrong at three levels: he spoke publicly about an ongoing investigation, he arrogated to himself the attorney general's decision about whether to prosecute a crime, and he misstated the legal standard for violating national security laws.

By making his statement, Comey gave fuel to those who opposed Hillary, because they could point to her criminal conduct, and he gave succor to those who supported Hillary because they could look to the decision not to prosecute.  Comey's bizarre behavior might therefore have been a net neutral, but on October 28, 2016, immediately before the election, he sent out a letter stating that law enforcement had found Hillary's emails on Anthony Weiner's computer as part of the investigation into Weiner's text messages to a 15-year-old girl.  Weiner was then married to Huma Abedin, Hillary's aide and close friend.

Within a couple of days — too little time within which to review all the emails — Comey sent out the "all clear" for Hillary.  By that time, though, the Democrat narrative was set: Comey lost the election for Hillary.

With his vicious, unprincipled, and illegal behavior surrounding the Russia collusion hoax and, specifically, the Flynn investigation, perhaps Comey was trying to make things right with the Democrats.  Maybe he destroyed Hillary's chance at the White House, but he was damned well going to destroy Trump's presidency, too.

With news of the motion to dismiss Flynn's case, Comey posted another of his self-righteous tweets, something he always does when he's feeling the heat:

I will look forward to a 3 A.M. FBI raid on Comey's house and the pleasant spectacle of him attired in a men's extra-long orange prison jumpsuit.