WASHINGTON (CN) — The Justice Department dramatically reversed course Thursday after three years of prosecuting Michael Flynn, dropping the case amid mounting pressure from President Donald Trump's base to exonerate the former national security adviser.
U.S. Attorney for the District of Columbia Timothy Shea wrote in the motion to dismiss that the government no longer finds Flynn’s false statements to the FBI to be materially false.
“Based on a careful assessment of the balance of proof, the equities, and the federal interest served by continued prosecution of false statements that were not 'material' to any bona fide investigation, the government has concluded that the evidence is insufficient to prove its case beyond a reasonable doubt,” Shea wrote.
Flynn admitted to lying to the FBI in a 2017 interview about his conversations with Russian ambassador Sergey Kislyak on U.S. sanctions imposed by the Obama White House over election interference.
Among the first Trump advisers to plead guilty in former special counsel Robert Mueller’s investigation, the ousted national security adviser sought to withdraw his guilty plea in January — following lengthy cooperation with investigators that delayed his sentencing — alleging “egregious government misconduct.”
Amid speculation that Attorney General William Barr had a hand in the government dropping the case against Trump’s former adviser, Eastern District of Missouri U.S. Attorney Jeff Jensen publicly stated that he recommended dropping the case.
“Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case. I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed,” Jensen said in a statement released by the Justice Department.
In an unusual move, Barr commissioned Jensen in January to investigate the handling of Flynn’s case by Washington federal prosecutors who took it over after the Mueller investigation came to a close in March 2019.
Just an hour prior to the motion to dismiss the case, Brandon Van Grack, who served as one of the top prosecutors on Mueller's team, withdrew from the prosecution.
The move reflects the same pattern that roiled the Justice Department just months prior when the agency reversed its sentencing recommendation for longtime Trump ally Roger Stone, leading the prosecution team to withdraw en masse from the case and one career attorney to resign altogether.
The Justice Department on Thursday cited newly disclosed documents made public in an exchange between Flynn’s former Covington Burling attorneys and new defense counsel as an influencing factor in the decision to dismiss the case.
“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 no longer justifiably predicated investigation that the FBI had, in the bureau’s own words, prepared to close because it had yielded an 'absence of any derogatory information,'" Shea wrote.
In what appears to be an effort to validate claims that the Flynn prosecution was a targeted attack on the Trump administration, the government filing claims that even if the defendant told FBI agents the truth in 2017, the statements “could not have conceivably ‘influenced’ an investigation that had neither a legitimate counterintelligence nor criminal purpose.”
The Justice Department is now arguing that it cannot prove that Flynn’s false statements to investigators were material “beyond a reasonable doubt.”
But Mimi Rocah, a former federal prosecutor for the Southern District of New York, said that materiality is broadly defined, and warned dismissing the case “reeks of favorable treatment” for a Trump ally.
“This really does interfere with any law enforcement's ability to do false statement prosecutions in the future,” Rocah said. “And particularly in the national security arena where it really matters, because sometimes that is the only criminal prosecution you can bring but you need that.”
The president himself said from the White House on Thursday that Flynn is an “innocent man” and a “great gentleman,” claiming officials who prosecuted him committed treason.
“He was targeted by the Obama administration and he was targeted in order to try to take down a president,” Trump said.
Dismissing the prosecution flames criticism that Barr — rather than fulfill his duty as chief U.S. law enforcement officer — has consistently acted for the personal and political benefit of the president.
“The president doesn’t need to issue pardons to his cronies when his attorney general appears willing to terminate their cases before justice can be served,” Noah Bookbinder, a former federal prosecutor and executive director for Citizens for Responsibility and Ethics in Washington, said in a statement Thursday.
Reading more like a defense filing than arguments penned by federal prosecutors, the Justice Department motion states that FBI agents “had the impression that Flynn was not lying or did not think he was lying,” and that his statements “were not by their nature easily falsifiable.”
The president just last week had predicted that Flynn would be exonerated, after documents surfaced that defense counsel claimed were a “smoking gun” that the FBI manipulated their client into a perjury trap.
Rocah said Van Grack withdrawing from the case, as someone known inside the Justice Department to operate with the utmost integrity, signals that the decision to drop the prosecution was problematic.
“And also that we do have people in the ranks of DOJ who still have those ethics that those of us who work there operate under,” the former federal prosecutor added.
U.S. District Judge Emmet Sullivan, a Bill Clinton appointee, is now left to decide whether to grant the government’s motion to dismiss the case. Flynn’s attorneys requested to withdraw their client’s pending motions on the case, including his motion to withdraw his guilty plea, after the government filed its motion Thursday.
Democrats plan to launch an investigation into the inner workings behind the decision to drop the case, with House Judiciary Chairman Jerry Nadler, D-N.Y., calling the abrupt move outrageous.
“We are not supposed to get special treatment because we are friends with the president or refused to cooperate with federal investigators on his behalf,” Nadler said in a statement. “The decision to overrule the special counsel is without precedent and requires immediate explanation.”
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