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DOJ Drops Case Against Michael Flynn After Considering ‘Newly Discovered and Undisclosed Information’

DOJ Drops Case Against Michael Flynn After Considering ‘Newly Discovered and Undisclosed Information’

“The Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.”

The Department of Justice dropped its case against former National Security Adviser Michael Flynn. He pleaded guilty to lying to the FBI two years ago:

The decision came days after prosecutors turned over documents to Mr. Flynn that his lawyers said was evidence that the government tried to set him up in the early 2017 interview at issue.

In a motion to dismiss the case, the Justice Department said: “The Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.”

A treasure trove of documents released in April gave off hints that the FBI set up Flynn.

Documents showed that disgraced FBI Agent Peter Strzok ordered the FBI to reopen its case against Flynn after the agency closed it. The investigative team closed the case after the agents “determined that [Flynn] was no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case.”

Other documents had hand-written questions that look like the agents wanted to use their interview with Flynn “to get him to lie.”

These documents influenced the DOJ to drop its case:

The announcement came in a court filing, with the department saying it is dropping the case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.” The DOJ said it had concluded that Flynn’s interview by the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that the interview was “conducted without any legitimate investigative basis.”

The federal judge overseeing the case would have to make the final determination to dismiss the case.


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Termination favorable to Flynn, sets up cause of action for malicious prosecution and abuse of process.

    Yes, the lawsuits should fly. But more importantly, the prosecutions.

    I don’t think we’ll see them with AG Barr-Boehner.

      We have omar committing immmigration fraud and election campaign fraud – and she is in Congress. Nothing happened.

      Alexandra cortez’s campaign got caught committing election financial fraud. Nothing happened.

      Dianne Feinstein is OWNED by the ChiComms. Nothing.

      Kerry committed SEVERAL violations of the Logan Act. Nothing.

      Biden & Sons committed treason, sedition and exortion and embezzlement. Biden admitted, on camera, to explicitly holding up aid to Ukraine to force the government to fire corruption investigator Victor Shokin — after Shokin looked into Biden’s son and his ties to a corrupt Ukrainian energy company. Nothing.

      Hillary clinton commits treason, MASSIVE financial crimes as secretary of state, MASSIVE criminal acts in handling state secrets.Hillary Clinton, who routinely urges her fellow Democrats to “keep going” until Trump is taken down, orchestrated an $84 million money laundering scheme in 2016 — the largest campaign finance scandal in U.S. history. It was so brazen even Federal Election Commission lawyers called for action. The Clinton machine raised excessive, six-figure contributions from Democratic mega-donors before laundering it through the Hillary Victory Fund to dozens of Democratic state parties acting as straw men, over to the Democratic National Committee and into the hands of Clinton’s campaign. Hillary Clinton, who routinely urges her fellow Democrats to “keep going” until Trump is taken down, orchestrated an $84 million money laundering scheme in 2016 — the largest campaign finance scandal in U.S. history. It was so brazen even Federal Election Commission lawyers called for action. The Clinton machine raised excessive, six-figure contributions from Democratic mega-donors before laundering it through the Hillary Victory Fund to dozens of Democratic state parties acting as straw men, over to the Democratic National Committee and into the hands of Clinton’s campaign. Nothing.

      The DNC itself tasked operative Alexandra Chalupa to obtain incriminating or derogatory information about Trump and his campaign staffers, directly from Ukrainian government contacts. Nothing.

      Eric holder is a gun runner and got people killed. Nothing.

      Loretta lynch engaged in crimes relating to clinton. Nothing.

      Pelosi’s & hubby’s wealth was built on compete corruption. Nothing.

      He’s boehner.

MattMusson | May 7, 2020 at 3:30 pm

Brandon Van Grack has many bad habits.
But, Telling the Truth is not one of them.

94Corvette | May 7, 2020 at 3:35 pm

This is such welcome news. Thank God for Sidney Powell. Thankfully, she did one of the hardest things for an attorney to do, taking over a case in midstream, after adverse developments, and won. She not only won, she won bigly. Our FBI is still out of control and it’s time for heads to roll. Too bad the guilty agents don’t have to forfeit their retirements over their criminal behavior.

    alaskabob in reply to 94Corvette. | May 7, 2020 at 3:59 pm

    However, maybe they will be resigned to follow the actions of one of the disgraced prosecutors in the Ted Steven’s case. (cue scene from “Serenity” where the assassin berates researcher who lost River Tam)

    Arminius in reply to 94Corvette. | May 7, 2020 at 9:10 pm

    Thank God for AG Bill Barr. Who just knocked some sense into the DoJ.

      barnesto in reply to Arminius. | May 7, 2020 at 9:28 pm

      slow your roll. if Barr was all that Van Grack would be up on charges or at the very least fired. But Barr’s very least is letting someone who clearly violated numerous laws and protocols to keep his job. at the same time his entire institution is being scrutinized as corrupt, yet this is his course. what do you expect from someone who plays the bagpipes as a hobby?

        Barr is Boehner.

        Expect nothing more.

        Job-one upon re-election of PDJT: retire Barr.

        Arminius in reply to barnesto. | May 7, 2020 at 10:05 pm

        I stand corrected. I only meant to say Bill Barr was decent enough to forego this atrocity.

        Tom Servo in reply to barnesto. | May 8, 2020 at 1:35 am

        You don’t know what Barr is going to do with Van Grack. I think one clue is that Van Grack today provided notice that he was withdrawing from *every* case he is involved in. Sounds like he knows he’s getting the boot, we’ll see soon I suspect.

    Arminius in reply to 94Corvette. | May 7, 2020 at 9:23 pm

    I doubt it will stick. In my experience the only part of the government that reliably works is the Fire Department.

    I regret that I can’t add the Department of the Navy. To which I dedicated 20 years of my life. And now I have some stories to tell. But I can’t. I have to keep my word.

I wonder, where does General Flynn go to get his reputation back ? I sure hope there’s justice, not just being vindicated by DOJ, but what about the $8M (+/-) in legal bills and the loss of his home ? This whole thing is shameful. I can’t believe it happened in the United States of America. And the money that was spent to trap him …… our tax dollars at work ! How do I add an angry face here …….

    GWB in reply to Phil. | May 7, 2020 at 4:01 pm

    Given this development, does it improve Flynn’s chances of a lawsuit? Besides slander/libel, what else can he sue them for?

    And, yes, they should be sued personally, AS WELL as the department.

    Milhouse in reply to Phil. | May 7, 2020 at 4:44 pm

    Well, he’s got his reputation back. But he’s lost three years of his life, a potential political career that it’s probably too late to restart, a ton of money, and it can’t have done his health any good. The financial loss can and should be made whole by a big fat compensation payment. And Trump should immediately appoint him to a senior White House position. But the real test of whether justice will be done is to see whether criminal charges will be brought against those who set him up. Because this only happened for one reason: to get him out of the way lest he torpedo the plot against the President.

    hrhdhd in reply to Phil. | May 7, 2020 at 6:31 pm


Shoot, now all the good info we got over the last couple of days will be stopped.

As for Flynn, great news. Congrats to Powell for a job well done. Wish she would help Stone.

    Voyager in reply to MarkSmith. | May 7, 2020 at 4:01 pm

    That was also what I found myself wondering. Are they doing this now to prevent even more damaging evidence coming to light?

    If this was a couple of years ago, it would have been more reasonable. Now I wonder, what are they hiding?

      “Now I wonder, what are they hiding?….”

      They’re hiding an 8 year crime spree of graft, sedition, larceny, fraud, treason and the fairy tale that is ‘barack hussein obama’.

    Milhouse in reply to MarkSmith. | May 7, 2020 at 10:12 pm

    I don’t think the info will be stopped. Durham’s job isn’t simply to get Flynn off. It’s to investigate what happened, not just to Flynn but the whole conspiracy of which the Flynn affair was just a small side-trip. Remember the purpose of this whole thing wasn’t to get Flynn; they only went after him because they needed to get him out of the way so they could proceed with their real project. He could have stopped them, so they got rid of him and got on with things. And Durham won’t stop till he can prove it.

      Milhouse in reply to Milhouse. | May 7, 2020 at 10:16 pm

      Correction, this is Jensen, not Durham. Still, the same point applies. Jensen’s job is not to get Flynn off but to investigate what happened to him, so he won’t stop working just because Flynn is now off the hook.

        Tom Servo in reply to Milhouse. | May 8, 2020 at 1:37 am

        There was video tonight of DNI Grenell delivering a large and apparently heavy satchel full of documents to the DOJ. I found that quite interesting.

Intentional use of official authority for the personal destruction of a man for personal reasons.

Kids, can you say “official corruption”? I’ll bet you can.

texansamurai | May 7, 2020 at 3:56 pm

can the general sue the bastards personally?–take all their $$$, their homes, their retirement/investments?–would certainly hope so–he deserves all of that and more

Connivin Caniff | May 7, 2020 at 3:57 pm

I wonder how many have suffered over the years under the filthy, unethical thumbs of the FBI and Justice Department. No more unrecorded 302s. Get rid of the threats of prosecution under the now sledgehammer mail fraud and money laundering statutes; as they are currently constituted no sane person wants to risk the chance of a trial and get 20 years for a bank deposit and/or mailed envelopes. And prosecutors and agents should be vigorously prosecuted for reckless or intentional Brady and Giglio violations. Enough is enough. Level the playing field, and seek justice only.

    Though it was once believed that a confession in open court — a guilty plea — was proof-positive of a person’s guilt, we now know that simply isn’t true. Indeed, of the more than 300 people definitively exonerated by the Innocence Project using DNA evidence, some 11 percent pleaded guilty to crimes they did not commit since 1989. The National Registry of Exonerations puts the total number at 20 percent since 1989.

Ann in L.A. | May 7, 2020 at 4:04 pm

“Undisclosed” to whom?!

Are you telling me the FBI didn’t have access to FBI documents or the DOJ didn’t have access to DOJ documents?

They were only “undisclosed” to the public until this week. In other words, they could no longer cover up for FBI malfeasance. Once that saw the light, there was no case to prosecute…but as long as the public was in the dark, they could continue to ruin Flynn’s life and tar Trump with an associate a judge called a Russian-loving traitor.

Speaking of which, if the judge has an ounce of integrity, he’d be writing a heartfelt apology to Flynn for accusing him in open court of treason.

    lichau in reply to Ann in L.A.. | May 7, 2020 at 4:33 pm

    Don’t look for any apologies, heartfelt or otherwise.

    “if the judge has an ounce of integrity, he’d be writing a heartfelt apology to Flynn for accusing him in open court of treason….”

    You answered your own ‘question’.

    The treason and corruption in the US after 8 years of obama is nearly too awful to believe. But, believe it.

    Owego in reply to Ann in L.A.. | May 8, 2020 at 7:04 am

    Agree about the judge. Judges have been stonily quiet through too much of all this. Reticence May be required behavior in a judge, perhaps justifiably so, but these people are just as plugged in to the Beltway scene as all the rest, they have to have had sense of what was going on, pure as the driven snow doesn’t make it. Any decent human being serving as a FISA judge should have been outraged at the falsified 302s that they approved resulting in the wiretaps; there has been nothing but silence from the judiciary since those disclosures. Dead silence, not even rumors. They are not above questioning.

The cot in Flynn’s cell is still warm but lonely.

Brandon Van Grack was removed or removed himself from this and several other cases prior to the motion. Retribution is coming.

They already destroyed his life.

    JusticeDelivered in reply to Exiliado. | May 7, 2020 at 5:13 pm

    And now it is time that all the parties involved are dealt the same hand. I want to see scalps being ripped off, perps standing on corners begging for food. As a FBI purge expands, a few suicides would be gratifying.

    It would be poetic and ironic if Flynn was put in charge of cleaning up the FBI. I would love to see those arrogant clowns suffering ay his hand.

      Wrathchilde in reply to JusticeDelivered. | May 7, 2020 at 8:34 pm

      Absolutely. The big problem that I see is that any judgement Flynn gets to make him monetarily whole comes out of our pockets.

      These costs should be wholly borne by the perpetrators. As long as they get away without feeling any personal repercussions, we all lose.

        JusticeDelivered in reply to Wrathchilde. | May 7, 2020 at 10:05 pm

        I was hoping that large scale civil losses would leave those behind Flynn’s persecution with not much more than the clothing they are wearing. I would love to see them broke financially and mentally.

        Milhouse in reply to Wrathchilde. | May 7, 2020 at 10:17 pm

        The perpetrators were our employees, so we’re responsible for the damage they did.

Bet ya five bucks (my maximum) that this story gets less than 3 minutes of coverage on the evening news tonight, big 3 networks combined.

Any takers??

    goomicoo in reply to tiger66. | May 7, 2020 at 5:22 pm

    Oh there will be plenty of coverage. Coverage that will be concocted to fit their narrative. IE, Trumps DOJ is corrupt! Bank on it.

    CorkyAgain in reply to tiger66. | May 7, 2020 at 5:56 pm

    The only way it gets three minutes is if two of them are spent covering Schiff and Nadler’s reaction, suggesting that this is somehow a criminal act by Atty. Gen. Barr (and/or Trump).

Anyone not believe this is the culmination of a multi-year plan?

NYT article written to confirm its paying customers’ prejudices:
Reading the comments, I didn’t know there were that many insane people.

    gospace in reply to gibbie. | May 7, 2020 at 6:43 pm

    I added a comment. In reply to one that displayed, well, no knowledge of anything else in the world.

    Not that it will do any good.

    To prove a narcissist wrong is to destroy them.

    Forget trying to convince the smugnoruses who read the ny times and watch XiNN. Just bump them aside.

Doen’t Sullivan still need to rule and accept the dismissal?

Fire Christopher Wray, and replace him with General Flynn. Instruct Flynn to give the FBI a thorough enema. Let him sue each and every one who participated in this travesty into oblivion.

Part of me wants then to fight this.

TheOldZombie | May 7, 2020 at 5:45 pm

I think Trump needs to make a prime-time speech about this case and let this whole country know that Flynn is innocent and was setup.

It’s the only way to make sure Flynn’s case breaks through all the other news and gets noticed by everyone.

You just know that most people in this country have no idea this happened today.

CommoChief | May 7, 2020 at 6:24 pm

Obviously great news for Flynn. Kudos to Sidney Powell for her work.

Of course it still must be approved by Judge Sullivan but that is very pro forma. Although he may have a few questions to ask the government……..

“Omar comin,”

The smearing of General Flynn with these false charges is especially vile because it was impersonal. He was not even the real target! The evil men and women who did this were trying to bring down a lawfully elected President and establish one-party dictatorship (how long before they would they have gone after Pence if they had succeeded in removing Trump?)

    alaskabob in reply to Recovering Lutheran. | May 7, 2020 at 9:30 pm

    Is that not the definition of “sedition”?

      It is. But we have boehner as the attorney general.

      Milhouse in reply to alaskabob. | May 7, 2020 at 10:24 pm

      No, it isn’t. They didn’t seek to overthrow the USA by force (or any other way). They didn’t even seek to remove the President by force; they worked within the legal system — corruptly, but that is a different crime. But the main point is that the president is not a king, so even killing him isn’t treason and conspiring against him isn’t sedition.

The motion itself is long and detailed, with many elements previously unknown.

Chuck Grassley said today that neither he nor Durham were aware of the handwritten notes until they were released a few days ago. Durham was supposed to have received all records months ago. Wray did not deliver. And Grassley says there is more coming.
Wray is a corrupt.

Sidney Powell’s billable rate just tripled…..and that’s a heck of a deal since it should have quadrupled.

President Obama knew of the phone call between Flynn and Russian Ambassador. Obama did not like Flynn.

1) Did Obama order directly order the Flynn take down?
2) Did a sycophant(s) go after Flynn ala Thomas Beckett to do the inferred biding of his(their) “King”…BHO?

In talking to the Russian ambassador, was BHO fearful something “flexible” might be discussed?

    Yes. Yes. And yes.

    A) The highest officials at the FBI went after the opposition candidate in multiple ways using information they knew was fake and did not tell President O.
    B) As above, and they *did* tell President O.

    Either one is a godawful travesty of what the FBI is supposed to stand for, and should be cleaned out with fire if needed.

Here is the silly Deep State spin from Lawfare. I would hope Mary Chastain will respond forcefully.

An Ugly Day for the Justice Department
By Susan Hennessey, Quinta Jurecic, Benjamin Wittes Thursday, May 7, 2020, 7:39 PM

It is exceptionally rare for the U.S. Department of Justice to move in court to dismiss a case in which a defendant has—ably assisted by first-class lawyers—entered into a plea agreement to spare himself prosecution on more serious felony charges. It is rarer still for the government to do so without acknowledging that it violated any law or that the defendant’s rights were somehow infringed. And it is still rarer yet for the government to take such a move without a single career prosecutor being willing to sign onto the brief seeking dismissal.

Yet this is what the government did today, May 7, in the case of Michael Flynn, the man who ever-so-briefly served as national security adviser for President Trump at the beginning of his administration.

Flynn pleaded guilty in a very generous deal with Special Counsel Robert Mueller in December 2017, a deal under which—instead of being prosecuted for serious violations of the Foreign Agents Registration Act—he was allowed to plead guilty to a single felony false statements charge under 18 U.S.C. § 1001. In reaching that plea deal, Flynn was represented by the well-resourced law firm of Covington & Burling.

The plea agreement was so generous to Flynn, in fact, that at the time, it appeared to be an indication that Mueller anticipated Flynn’s cooperation would be extremely valuable. Yet the government today argued in court, “based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.”

The Justice Department did not merely contend that Flynn should be allowed to withdraw his plea, as he has been seeking to do. It argued that the entire case should be dismissed with prejudice—meaning that the case should be dismissed in a fashion that would preclude its being refiled. “Continued prosecution of the charged crime,” the motion states, “does not serve a substantial federal interest.”

The government’s 20-page brief is not an honest document—perhaps the reason that it is signed only by Timothy Shea, the interim U.S. attorney for the District of Columbia—and not a single one of the career prosecutors who worked on the case. That may also be the reason why Brandon Van Grack, the prosecutor who has worked the case from the beginning, moved to withdraw from the case entirely just hours before the Justice Department filed its motion.

The brief’s account of the history of the Flynn case is not accurate, its account of the government’s own conduct equally flawed. And it all leads up to a conclusion so obviously wrong that one does not need to know anything about counterintelligence to see through it: that there is no reasonable basis even to interview a senior government official when that person has engaged over sanctions imposed against a foreign adversary government that interfered in an election—and who subsequently lied to the vice president of the United States about the substance of his conversation with an agent of that government. Based on this position, the Justice Department today took an even greater leap: that it is perfectly legal for the official, if interviewed under these circumstances, to lie through his teeth repeatedly to the FBI agents who show up to interview him.

( Government’s brief was inserted here )

Much of the government’s brief purports to be an account of the history of the Flynn investigation leading up to his Jan. 24, 2017, interview by FBI agents. It is not an honest history. Across a number of axes, it presents a tendentious version of events that play to a variety of preexisting ideas about the Justice Department and FBI in that period. It portrays FBI Director James Comey as insubordinate to a hapless Deputy Attorney General Sally Yates; and it portrays FBI officials Peter Strzok and Lisa Page as scheming villains. And Flynn’s own conduct, meanwhile, it consistently minimized. But leave for another day the deficiencies of the account. Let’s assume for a moment it’s not merely true but complete and fair. The government’s conclusion still does not follow from the facts the brief recounts.

The argument relies heavily on documents released by U.S. Attorney for the Eastern District of Missouri Jeffrey Jensen, handpicked by Barr to “review” the Flynn prosecution. Crucial to the Justice Department’s argument are documents showing that the FBI had, by Jan. 4, 2017, drafted a memo determining it should close the Flynn investigation but had not formally done so, and that upon learning of Flynn’s call with Russian Ambassador Sergey Kislyak, the FBI chose instead to keep the investigation open.

The department filing presents the reversal on closing the Flynn investigation as evidence of something untoward. It points to a statement in the draft closing memo that the bureau had found “no derogatory information” on Flynn and therefore lacked a basis to “predicate further investigative efforts,” and then argues that the Kislyak call “did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation.” The suggestion seems to be that the FBI was ready to close up shop on Flynn when its leadership turned to the Kislyak call as an excuse to keep it open. “In doing so,” the motion states, “the FBI sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens.”

The reality is more mundane: The FBI prepared to close an investigation and when presented with new evidence decided to keep it open. The fact that the investigation hadn’t been formally closed was a matter of bureaucratic convenience; the process of reopening a closed investigation requires paperwork and since this one hadn’t been closed, there was nothing to reopen. In any case, the order of events isn’t at all relevant to the core question: Did a properly predicated investigation exist at the time FBI agents interviewed Michael Flynn? We’ll turn to the details in a moment, but the bottom line is that the predication isn’t a close call.

Astonishingly, the government brief claims otherwise. The government’s argument hinges on the notion that Flynn’s December 2016 phone call with Kislyak—in which Flynn advised the Russian government not to respond to sanctions newly issued by the Obama administration in response to Russian election interference—was, fundamentally, not a matter of concern. Because the call with Kislyak was “entirely appropriate,” the Justice Department argues, the FBI’s discovery of that call was insufficient as an investigative basis to continue the bureau’s counterintelligence investigation into Flynn.

What’s more, the government argues, the fact that Flynn lied about these conversations to Vice President Pence, who publicly repeated the lie, also “did not create a predicate for believing he had committed a crime or was beholden to a foreign power.” And because the FBI lacked a predicate for the investigation in which it interviewed Flynn, the government argues, Flynn’s lies to FBI agents about the call were not “material” to that investigation as required under § 1001.

To understand how bizarre the government’s theory of the case has become, let’s step back a moment and consider the standards for predication. Under the Attorney General’s Guidelines, the predication standard for a full investigation requires the government to have an “articulable factual basis” to “reasonably indicate” that “an activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity.” In other words, to take the view that the FBI had no reasonable investigative predicate for the Flynn case on Jan. 24, 2017, one has to believe that the following fact-pattern, considered in its entirety, provides no reasonably articulable basis for a counterintelligence concern:

A senior official with a TS/SCI (top secret/sensitive compartmented information) clearance working in the White House has ties to various Russian government entities.
He has traveled to Russia and taken large sums of money from a state-controlled Russian media outfit.
As the investigation of these matters was winding down, he had phone conversations with the Russian ambassador at a time when the United States had just imposed sanctions on Russia for interfering in the 2016 elections. In those conversations, he had asked that Russia to respond only in a measured fashion.
He subsequently lied to the vice president of the United States and other White House officials about the substance of those calls, causing the White House to issue inaccurate statements to the public.
The Russian government was aware of these lies, having participated in the phone calls, and the official was thus potentially subject to blackmail.
Recall that predication is cumulative. While the FBI had previously examined Flynn’s ties with Russia and found no derogatory information based solely on those ties, his call with Kislyak and subsequent behavior raised new questions about whether something had been missed. It potentially cast the earlier interactions in a very different light.

Notably, among the exhibits attached to the motion are two FBI interviews with Yates and Mary McCord, who was heading the Justice Department’s National Security Division in January 2017. According to the interviews, both Yates and McCord told the special counsel’s office of their alarm upon learning that Flynn had lied to Pence and that Pence has repeated the lie. Yates later testified before Congress about her reaction on learning of Flynn’s conversations with Kislyak as well and her particular concern about the fact that Flynn had apparently lied to Pence, saying she “felt like it was critical that we get this information to the White House, … in part because the vice president was unknowingly making false statements to the public and because we believed that General Flynn was compromised with respect to the Russians.”

When Yates publicly testified in May 2017 about the concerns with Flynn’s call, few people suggested that his conversation with Kislyak was “entirely appropriate,” much less that Flynn’s lying to Pence was irrelevant. Even fewer had the audacity to argue that Flynn’s lying to the FBI about the matter was legally within his rights.

But this latter claim is exactly what the new Justice Department filing advances. The Justice Department’s argument that Flynn’s conversation with Kislyak, and his subsequent lies to Pence, did not constitute a sufficient predicate for continuing an investigation allows it to take its final step: the contention that Flynn’s lies to the two FBI agents who interviewed him were immaterial—and therefore legal. Section 1001 criminalizes “knowingly and willfully … mak[ing] any materially false, fictitious, or fraudulent statement or representation” to federal investigators, where “material” means “predictably capable of affecting … [an] official decision.” The motion argues that there was no way Flynn’s lie could have affected FBI decision-making if there was no real national security risk and the FBI was just out to “criminalize” Flynn from the beginning: “Even if he told the truth, Mr. Flynn’s statements could not have conceivably ‘influenced’ an investigation that had neither a legitimate counterintelligence nor criminal purpose,” the government contends.

The Justice Department is arguing here nothing less than that it is okay for a counterintelligence subject to lie to the FBI about interactions with foreign governments under certain circumstances. The argument fails for the same reason the earlier argument fails: The investigation had proper predication, so the lies were material.

As astonishing as the motion is, it does not come out of nowhere. Van Grack is only the latest of Mueller’s prosecutors to withdraw from a case seemingly in light of mishandling by the Justice Department under Barr: In February 2020, all four assistant U.S. attorneys prosecuting Roger Stone removed themselves from the case on the same day that the department filed a sentencing memo undercutting their work. U.S. Attorney for the District of Connecticut John Durham, selected by Barr to conduct an ambiguous “review” of the Mueller investigation, continues his work. A year after the public release of the Mueller report, Barr has yet to give up on his project of dismantling the investigation—even in the midst of a deadly pandemic.

In an interview with CBS this evening, Barr defended his decision. Claiming he had a duty to dismiss the charges, the attorney general lamented, “It’s sad that nowadays these partisan feelings are so strong people lose any sense of justice.” Barr is right about this—but his words have more than a whiff of projection about them. When asked how history would view his decision, Barr chuckled that “history is written by the winners, so it largely depends who’s writing the history.”

He’s right about that too. And having won, at least for now, he is busily rewriting history.

    Bruce Hayden in reply to tarheel62. | May 9, 2020 at 3:43 am

    What must be remembered is that Lawfare was involved up to their eyeballs in this scandal and in particular was tied closely to the Mueller prosecutors. While Comey appears to be taking responsibilIty for inventing the Logan Act fraud, it stinks to me like a Lawfare construct.

    Note that they did not actually respond directly to the government’s arguments supporting their motion to dismiss, and, in particular that the government did not have a good faith belief that it could prove several elements required by the crime beyond a reasonable doubt. They couldn’t prove that the statements were false because the original interview transcripts (FD 302s) had been lost from the FBI’s Sentinel system that would have required very high level access to delete. The first 302s submitted were the ones personally approved by DD McCabe, and had been edited by his personal attorney Lisa Page, neither of whom were present at the interview (and according to FBI agents just isn’t done). The second set appear to have been modified by Peter Strzok three weeks after the interview. The FBI requires that 302s be submitted w/I 5 days of an interview. That is likely at least partially because they can sometimes be submitted as direct evidence, as an exception to the Hearsay Rule. Because the 302s submitted to the defense (and thus the only ones available to the prosecution) were submitted so late, they had no direct evidentiary value except to show government bias and misconduct. That leaves the only avenue for proving the required element of intent to lie would be to put the two agents, Strzok and Pietka, on the stand. And Strzok was fired for lying. Thus, the basis for the government’s belief that they could not prove the required element of intent beyond a reasonable doubt.

    Another required element of a §1001 charge of lying to a federal official (FBI agents here) is that it be material. And that requires that it be something that would affect a legitimate criminal investigation. By that point, the field office had tried to close the Crossfire Razor investigation, for lack of evidence, and had that overridden by CD DAD Strzok on orders of the “Seventh Floor”, meaning by either Dir Comey or DD McCabe. Which means that the investigation at that point was being kept open for purely political, and not law enforcement, purposes. Without the testimony affecting a legitimate ongoing criminal investigation, it cannot be material, and the attempted closing of the investigation, only to be overridden by top management, was more than sufficient to introduce reasonable doubt as to its materiality.

    I should also note that the government’s argument in support of its motion to dismiss quickly demolished the Comey/Lawfare Logan Act argument. This could never be a legitimate basis for a criminal investigation because the prosecution could never ethically charge someone under that archaic statute, because of its facial invalidity under current 1st Amdt jurisprudence. And if they did, they would expect summary dismissal. And this cuts directly to how the prosecution had been trying to cheat. The “investigation” had been of an ostensible Logan Act violation, but what they were after was a §1001 prosecution for perjury. They never intended to try to prosecute Flynn under the Logan Act. They were essentially trying to prove materiality to an ongoing criminal investigation for the §1001 perjury charge through bootstrapping via the Logan Act. But the DOJ position is that it cannot be a valid criminal investigation supporting §1001 materiality if the prosecutors cannot ethically bring charges under the statute ostensibly violated. It was this too cute by half legalizing that made me believe that Lawfare was involved in its design.

I assume the prosecution was dropped to prevent having to respond to discovery motions.