Justice at Last for Michael Flynn

If the most powerful and well-connected among us can be victimized by lawfare, what hope would ordinary citizens have against a vindictive prosecution?

This essay originally appeared in Law & Liberty on May 12, 2020 (here).

When the U.S. Department of Justice—at the direction of Attorney General Bill Barr—announced on May 7 that it was dropping all charges against Lt. Gen. Michael Flynn, the former National Security Advisor’s years-long legal nightmare finally ended. The nightmare began on January 24, 2017, when hyper-partisan FBI agent Peter Strzok (subsequently fired), acting on the instructions of FBI Director James Comey (subsequently fired), improperly met with the newly-appointed National Security Advisor at the White House—without counsel and on a pretense—to conduct an “ambush” interview lacking any legitimate investigatory predicate. Comey later acknowledged that the FBI took advantage of “chaos” in the early days of the Trump administration by deciding not to coordinate with the White House Counsel or the DOJ before conducting Flynn’s interview.

Citing inconsistencies between Flynn’s interview responses and clandestine transcripts of telephone conversations that the FBI had wiretapped, federal prosecutors led by special counsel Robert Mueller later charged Flynn with lying to federal investigators. Legal expenses to defend himself exhausted Flynn’s life savings and forced him to sell his house. His attorneys at the toney D.C. firm of Covington & Burling, some of whom billed at $1,000/hour, charged Flynn almost $5 million. C&B is home to Eric Holder, who served in the DOJ under Presidents Bill Clinton and Barack Obama, and was the latter’s first AG. Unfortunately, the best result his high-priced lawyers at C&B could muster was a plea deal on a single count, to which Flynn acceded in December 2017 only because, he later alleged, the federal prosecutors threatened to file charges against his son.

Michael Flynn, President Donald Trump’s former national security adviser, leaves the federal court with his lawyer Sidney Powell, left, following a status conference with Judge Emmet Sullivan, in Washington, Tuesday, Sept. 10, 2019. (AP Photo/Manuel Balce Ceneta)

Flynn’s situation was dire. The only question was how long of a prison sentence (if any) Flynn would draw from U.S. District Judge Emmet Sullivan. (Mueller’s team initially recommended that Flynn receive no prison time due to his “substantial assistance” in the special counsel investigation.) Then, in 2019 Flynn changed lawyers, from swamp darling C&B to high-profile appellate expert Sidney Powell, and sought to withdraw his guilty plea on the grounds that it was coerced.  Next, Powell moved to have the case against Flynn dismissed on the grounds of egregious government misconduct. Flynn was framed, Powell charged, and sought production of exculpatory documents in the possession of the FBI. These aggressive tactics did not yield any immediate results, but they bought Flynn valuable time.

When federal prosecutors retaliated against Flynn by reversing their sentencing recommendation to seek a six-month prison sentence in the case, some observers criticized Powell’s tactics, contending that they had backfired. Behind the scenes, however, another drama was playing out. Earlier this year, Barr assigned Jeffrey B. Jensen, the U.S. Attorney for the Eastern District of Missouri (and a former FBI agent himself), the task of reviewing Flynn’s case and in particular how Flynn’s FBI interview was handled. Jensen concluded, based on his review, that the case against Flynn was fatally flawed. Jensen found that there was no valid reason for the FBI to interview Flynn in January 2017 after the FBI found no illegal activity in the course of their initial investigation. In other words, Flynn was set up.

Contemporaneous FBI notes, uncovered by Jensen and publicly released prior to the DOJ’s May 7 court filing, included passages by the head of the FBI’s counterintelligence division asking about the purpose of the January 24, 2017 interview of Flynn led by the partisan zealot Strzok: “What’s our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?” That bombshell was, to mix a metaphor, just the tip of the iceberg. There was much more. Comey’s FBI, it turns out, was not the sterling law enforcement agency portrayed in the popular TV series starring Efrem Zimbalist Jr. The FBI’s leadership was highly politicized—and ruthlessly partisan.

Jensen’s findings, which were accepted by Barr, are summarized in the DOJ’s court filing seeking dismissal of the charges against Flynn. The filing deserves the attention of all concerned citizens. The DOJ’s motion to dismiss argues that “continued prosecution of this case would not serve the interests of justice” because an essential element of the crime—materiality—could not be proven beyond a reasonable doubt. The motion states:

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.” 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. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt. (Citations omitted.)

Translation: At the time of the Strzok interview, the FBI had already exonerated Flynn in the Russian collusion investigation dubbed “Crossfire Hurricane.” No “derogatory information” regarding Flynn had been discovered. After President-Elect Donald Trump named Flynn his incoming National Security Advisor, according to the motion, “FBI leadership (‘the 7th Floor’) determined to continue its investigation of Mr. Flynn on the basis of [December 2016 telephone calls between Flynn and Russian ambassador Sergey Kislyak], and considered opening a new criminal investigation based solely on a potential violation of the Logan Act. 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.” (Emphasis added; citations omitted.)

No one has ever been convicted of violating the 1799 Logan Act. Only two people have ever been indicted on Logan Act charges. The notion that the incoming National Security Advisor could be accused of “unauthorized negotiations” with a hostile foreign power based on a post-election conversation with the Russian ambassador is ludicrous beyond belief—a transparently pretextual rationale for an ambush interview. The DOJ filing depicts a deeply-troubling scenario: Deep State operatives in the nation’s most powerful law enforcement agency set a trap for Flynn, a retired three-star Army general with 33 years of military service, and nearly succeeded. Even if the independent-minded Judge Sullivan grants the DOJ’s motion and dismisses the charges against Flynn, he is ruined: broke, his reputation sullied, scarred by the ordeal.

The DOJ motion to dismiss makes a compelling case that Flynn was set up. Are his enemies chastened by the truth? Sadly, no. In this polarized age, there is no vindication, or absolution, only contested reprieves. Democratic elected officials and their allies in the media fulminate angrily about the dismissal of charges against Flynn, even as Barr’s decision is praised by many conservatives and supporters of President Trump. Flynn, who was facing prison time, is understandably elated. The full story remains to be told. Why was Flynn targeted? Who ordered it? Was President Obama involved? What did Vice President Biden know? Were the nation’s intelligence agencies colluding with the FBI? Will the malefactors within the FBI be held accountable?    

As the Wall Street Journal noted, “There is still much we don’t know, and many Russia-related documents we still do not have, and we hope Mr. Barr will continue to make them public as he cleans up after one of the most shameful episodes in FBI and Justice Department history.” If this terrible saga yields any benefit, it will be to serve as a cautionary tale. Prosecutorial and law enforcement abuses are a grave threat to liberty. Overzealous government officials acting in bad faith can inflict great harm. Rogue agents (and agencies) are antithetical to the rule of law. Weaponizing the legal system to punish (or kneecap) political opponents always leads to injustice.

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