Justice Department Is Dropping Case Against Ex-Trump Adviser Michael Flynn

May 7, 2020
Originally published on May 7, 2020 8:28 pm

Updated at 8:27 p.m. ET

The Justice Department is dropping its case against President Trump's first national security adviser, Michael Flynn, who pleaded guilty to lying to the FBI about his contacts with Russia's then-ambassador to the United States.

The about-face by the department brings to a close the long-running case against Flynn brought by former special counsel Robert Mueller during the investigation into Russian interference in the 2016 election.

It also deepened questions about the independence of the Justice Department under Attorney General William Barr, who has long expressed skepticism about the Mueller probe.

"A crime can not be established here," Barr said on CBS News on Thursday evening. "They did not have a basis for a counter-intelligence investigation against Flynn at that stage."

Trump hailed the move on Thursday in remarks to reporters at the White House.

"He was an innocent man ... Now, in my book, he's an even greater warrior," Trump said.

The president faulted former President Barack Obama's administration and said: "They're human scum ... It's treason."

Long, strange trip

Flynn pleaded guilty to lying to the FBI about his conversation with Russia's ambassador during the transition as Trump's camp was preparing to take the place of Obama's in the White House.

He cooperated with authorities for months during the Russia investigation, and prosecutors hailed what they called the value of his contributions.

Flynn admitted his wrongdoing in court and appeared for a time to be on track to be sentenced — with a recommendation in hand from prosecutors that he be treated leniently in view of his cooperation.

But no sentence ever was issued.

Instead a combination of events changed Flynn's trajectory: He shook up his legal team, and his new counselors advised that he break with prosecutors and fight the case. He withdrew a plea of guilty about actions he had admitted before a judge.

And revelations about missteps by the Justice Department and FBI in the Russia investigation changed the political environment in Washington, along with the arrival of Attorney General William Barr, who viewed the Mueller legacy warily.

A Justice Department review of Flynn's case ordered by Barr concluded that the interests of justice would not be served by going ahead with the prosecution, according to information from the department on Thursday.

D.C. United States Attorney Timothy Shea wrote in a brief that the government now considers Flynn's false statements "not 'material' to any bona fide investigation," and that accordingly, it is asking to dismiss the case.

Separately, Justice Department spokesperson Kerri Kupec said another U.S. attorney brought into the matter, Jeff Jensen of the Eastern District of Missouri, recommended that the Flynn case be spiked.

Attorney General Barr

Thursday's developments were expected to bring more criticism of Barr, whom Democrats have called too eager to please Trump and too reluctant to be an independent officer of the law.

"The decision to drop the charges against General Flynn is outrageous," said Rep. Jerry Nadler, D-N.Y., chairman of the House Judiciary Committee.

"The evidence against General Flynn is overwhelming. He pleaded guilty to lying to investigators. And now a politicized and thoroughly corrupt Department of Justice is going to let the president's crony simply walk away. Americans are right to be furious and worried about the continued erosion of our rule of law."

In February, Barr interceded in sentencing recommendations in the case of another figure from the Russia imbroglio, political consultant Roger Stone, not long after Trump complained about what he called the harsh punishment contemplated in the matter.

Justice Department officials said Trump hadn't directed Barr to intercede but the involvement by the agency's headquarters with a politically sensitive case was criticized as an improper overreach by the president and a concession by Barr.

The attorney general went so far as to plead with Trump not to comment about pending cases — but the president has continued to do so.

For Trump and supporters, Flynn was a victim of malicious overreach — by an FBI they said ran amok under Director James Comey.

Although the broad findings of the bureau about Russia's interference in 2016 and since have been validated and revalidated, Trump and Republicans have highlighted Flynn's case and other examples of what they call abuse by investigators or prosecutors.

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In a spectacular reversal, the Justice Department announced that it is dropping its case against President Trump's first national security adviser, Michael Flynn. In 2017, Flynn pleaded guilty to lying to the FBI about his contacts with the Russian ambassador to the U.S. This about-face by the department closes the long-running case against Flynn that was first brought by special counsel Robert Mueller as part of the Russia investigation. NPR's justice correspondent Ryan Lucas joins us now. Hey, Ryan.


CHANG: All right, so what did the government say went wrong here?

LUCAS: So the department says, in its latest filing, that it did an extensive review of this case. It discovered some new documents. There was some newly declassified information. And it came to the conclusion that it doesn't serve the interests of justice to continue this case against Flynn. Remember that Flynn was interviewed by the FBI in January of 2017, and it was in that interview that he lied to them about his contacts with the Russian ambassador.

Now, in this new filing, the department says that some of the new documents lead the department to conclude that the FBI's interview of Flynn was, quote, "untethered to and unjustified by" the FBI's counterintelligence investigation into Flynn at the time. They also say that the false statements that Flynn made don't meet the legal standard of being material to the investigation. So at root, there was no legitimate basis for investigating Flynn when that interview took place.

CHANG: OK. So the DOJ is saying there were some missteps here. But Michael Flynn had already pleaded guilty to charges. Remind us exactly what those charges were.

LUCAS: Right. He pleaded guilty to a single false statement count that came out of that FBI interview. And as I said, those were about his conversations with the Russian ambassador to the U.S. at the time, Sergey Kislyak. And remember - this case against Flynn was brought, as you said, as part of the Mueller investigation. And Flynn didn't plead guilty to this once; he twice in court stood up and pleaded guilty to this charge. And he then cooperated extensively with Mueller's team in its investigation.

Now, Flynn was in court for sentencing in December of 2018. There was a bit of a snafu at the time. They pushed off sentencing, delayed it. He then brought new lawyers onto his team last summer, and he did a reversal then. He actually stopped cooperating with the government. He accused the Justice Department of egregious misconduct, of trying to frame him. And he actually has been seeking to withdraw his plea since earlier this year. Now he doesn't have to fight this anymore. The department is just dropping the charges against him.

CHANG: Interesting. Well, do you think this decision by the Justice Department to drop the case tarnishes the FBI's reputation?

LUCAS: Certainly in the eyes of Flynn's supporters, one of whom, of course, is President Trump - yes. And the FBI's conduct, in their eyes, was improper and biased from the beginning. That's the argument that Flynn's lawyers have been making for months, and it's one that has certainly gained a lot of traction in conservative media. Now, the Justice Department deciding to drop the case appears to show that the U.S. attorney for Washington, D.C., Timothy Shea, who signed this document today, he at least agrees.

But it's important to say, the lead prosecutor on the case, Brandon Van Grack - he was a member of Mueller's team - he withdrew from this case today, shortly before the department moved to drop the prosecution. Van Grack didn't give a reason for it, but it may very well be because he disagreed with the move.

CHANG: Right. Well, the attorney general, Bill Barr, has long expressed skepticism about the Mueller investigation. So what is his role in all of this?

LUCAS: So earlier this year, Barr appointed a U.S. attorney for Missouri, Jeffrey Jensen, to review the Flynn prosecution. Jensen said in a statement today that he looked everything over. His decision was to dismiss the case. He says he briefed Barr on that, and the attorney general agreed. But there are critics of Barr who certainly are going to look at this and say this raises more questions for them about the politicization of the department under Barr.

CHANG: All right. That's NPR's Ryan Lucas. Thank you, Ryan.

LUCAS: Thank you. Transcript provided by NPR, Copyright NPR.