The Justice Department announced on Thursday afternoon that it was dropping criminal charges against President Trump’s short-lived national security adviser, Michael Flynn. The retired Army three-star general had been charged with misleading FBI agents in a January 24, 2017, interview at the White House about his conversation with Russian Ambassador Sergey Kislyak related to the Obama administration’s imposed sanctions in response to the Kremlin’s election meddling.
Trump tweeted his satisfaction with the decision Friday morning:
Yesterday was a BIG day for Justice in the USA. Congratulations to General Flynn, and many others. I do believe there is MUCH more to come! Dirty Cops and Crooked Politicians do not go well together!
— Donald J. Trump (@realDonaldTrump) May 8, 2020
Flynn twice pleaded guilty to violation of Title 18 U.S. Code § 1001 (essentially, lying to a federal agent). But he had since sought to withdraw his plea as tranches of government-released evidence related to FBI/DOJ misconduct and malfeasance in the Crossfire Hurricane investigation exposed partisan political bias.
Even as social media apoplexy from critics of Attorney General William Barr reached an apex Thursday evening, those who believe in one standard of justice for all knew this was the right call.
The DOJ’s surprise filing with the court acknowledged the ignoble purpose behind the Flynn investigation. FBI agents had been dispatched to 1600 Pennsylvania Avenue by then-Deputy Director Andrew McCabe, with the approval of then-Director James Comey. McCabe purposely sidestepped protocols by failing to notify acting Attorney General Sally Yates and ignored standard coordination processes with White House’s chief counsel or chief of staff. He even assured Flynn during a telephone call to set up the interview that he didn’t need an attorney.
In the filings to dismiss the Flynn charges, the DOJ acknowledged that “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information … the government has concluded that [the Flynn White House interview] was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.” The DOJ then concluded the interview was “conducted without any legitimate investigative basis.”
McCabe, now a law enforcement analyst colleague of mine at CNN, appeared on the network this morning to defend his actions, asserting that: “Flynn was not targeted. He was properly investigated in a well-predicated case. A case whose validity has been proven not just by those of us who were involved, but later by the Mueller investigation and after that by the inspector general’s investigation.”
I respectfully disagree.
There was disclosure after damning disclosure. Revelation after infuriating revelation. They all corroborate the sad truth that the Flynn White House interview was never designed to elicit information material to, and in furtherance of, the Russian election-meddling investigation. It was never about the Logan Act or violations of the Foreign Agents Registration Act. It was a nakedly prejudicial effort to ensnare the general in false statements related to the Kislyak conversation they had already intercepted and reviewed.
Collusion was a fever dream. They knew it. The interview’s sole purpose was designed to jam up the guy that they had come to loathe for his leading of “lock her up!” chants at the 2016 Republican National Convention.
Or, as Crossfire Hurricane protagonist Peter Strzok later lamented in an August 26, 2016, text exchange with Lisa Page regarding his foray into a southern Virginia Walmart, “I could SMELL the Trump support.”
The Comey team had an agenda. That agenda was to do everything possible to prevent that dreaded smell from permeating the interior space of the White House.
Meanwhile, U.S. District Judge Emmet Sullivan had been weighing new charges from Flynn’s defense team of governmental misconduct in the withholding of crucial, potentially exculpatory evidence (under the Brady rule) that they argue would have affected his decision to plead guilty in the first place. Sullivan was poised to consider whether to dismiss the case on the charges of prosecutorial misconduct. But his rulings are never easy to predict. But it’s critical to point out, as did the Wall Street Journal editorial board here:
But Flynn may not be out of the woods just yet. Sullivan could yet demand that the DOJ lay out in open court specific rationale behind the decision to dismiss the charges. Judges are notoriously cranky when a defendant asks to withdraw a guilty plea, provided they were provided adequate counsel. And even though the other potential charges (Logan Act, FARA) Flynn acknowledged engaging in are never, ever, ever charged, Sullivan could certainly raise this issue. The court would certainly have difficulty in demanding the DOJ prosecute a case it is seeking to dismiss. There is simply no judicial branch mechanism to compel prosecution. But it’s important to note that Flynn still has potential future legal hurdles to overcome.
Thursday’s decision by the DOJ was an important development in the restoration of fundamental fairness in our country and put an exclamation point on the durable precept that the FBI remains apolitical in its pursuit of wrongdoing. Selective prosecution is a stain on our justice system.
This was the right call.
James A. Gagliano (@JamesAGagliano) worked in the FBI for 25 years. He is a law enforcement analyst for CNN and an adjunct assistant professor in homeland security and criminal justice at St. John’s University. Gagliano is a member of the board of directors of the Law Enforcement Legal Defense Fund.
