‘The proper and just course’: DOJ drops charges against Michael Flynn

Timothy Shea, the U.S. attorney for the District of Columbia, made the announcement Thursday afternoon in a 20-page court filing.

“The United States of America hereby moves to dismiss with prejudice the criminal information filed against Michael T. Flynn,” Shea said. “The Government has determined, pursuant to the Principles of Federal Prosecution and 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 federal judge overseeing the case will make the final determination on whether to dismiss it.

Trump rejoiced in hearing the news, telling reporters that Flynn is a “warrior” and an “innocent man.”

Jeffrey Jensen, the U.S. attorney for the Eastern District of Missouri who was picked to review the Flynn case, said Thursday that he “concluded the proper and just course was to dismiss the case” and advised Attorney General William Barr on his conclusions.

Sidney Powell, a former federal prosecutor, took over Flynn’s representation last summer and fought to dismiss the government’s case against him. Working with his old team from Covington & Burling LLP, Flynn had pleaded guilty in December 2017 to lying to investigators about his conversations with Russian diplomat Sergey Kislyak about sanctions on Russia and a United Nations resolution on Israel. The FBI intercepted Flynn’s discussions with Kislyak, after which fired FBI agent Peter Strzok and another agent, believed to be Joseph Pientka, grilled him on the contents of the conversation on Jan. 24, 2017.

The Justice Department said Thursday that “this crime, however, requires a statement to be not simply false, but ‘materially’ false with respect to a matter under investigation” and emphasized that “materiality is an essential element of the offense.”

“The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue,” Shea said in his court filing. “Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”

Former FBI Director James Comey admitted last year he took advantage of the chaos in the early days of Trump’s administration when he sent Strzok and another FBI agent believed to be Joseph Pientka to talk to Flynn in January 2017.

Flynn told the court in January of this year that he was “innocent of this crime” of lying to federal agents. He filed to withdraw his guilty plea after the Justice Department asked the judge to sentence him to up to six months in prison — though afterward, the department said probation would also be appropriate. Powell pressed for the dismissal of his case by arguing that the FBI unfairly treated Flynn.

Powell pointed to a section of DOJ Inspector General Michael Horowitz’s report, which showed that the intelligence briefing the FBI gave to then-candidate Trump’s team in August 2016 during the presidential campaign was a “pretext” to gather evidence to help in the counterintelligence investigation into Trump’s campaign.

Flynn’s lawyers have touted FBI records released last week as exculpatory evidence that was concealed from the defense team. The documents suggest that now-fired FBI agent Peter Strzok and the FBI’s leadership stopped the bureau from closing its investigation into Flynn in early January 2017 after investigators had uncovered “no derogatory information” on him. Emails from later that month show Strzok, along with then-FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act.

“Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership (“the 7th Floor”) determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act,” Shea wrote. “Yet discussions with the Department of Justice resulted in the general view that the Logan Act would be difficult to prosecute. The FBI never opened an independent FBI criminal investigation.”

“After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, 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 concluded.

Among the records unveiled to the public (done so as part of Jensen’s review) were handwritten notes from former FBI Assistant Director of the Counterintelligence Division Bill Priestap on the day the FBI interviewed Flynn. “I agreed yesterday that we shouldn’t show Flynn [REDACTED] if he didn’t admit,” but “I thought about it last night, and I believe we should rethink this,” Priestap wrote. “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”

While working with his previous legal team, Flynn cooperated with special counsel Robert Mueller’s team in the Russia investigation. But his new attorneys have been more aggressive in fighting the charges, and Flynn has declared his innocence, claiming he was set up by the FBI.

News of the Justice Department dropping its charges against Flynn comes after top former Mueller prosecutor Brandon Van Grack, a special assistant U.S. attorney and the chief of the Foreign Agents Registration Act Unit at the Justice Department, abruptly withdrew from the case.