WASHINGTON – May 7, 2020 – In a bombshell filing from the Department of Justice (DOJ), “The United States of America hereby moves to dismiss with prejudice the criminal information filed against Michael T. Flynn.”
With prejudice. The Government has made its final determination and will not bring this matter up in court again. In fact, those two words forbid them from doing so!
Many pundits across the Mainstream Media (MSM) have stated that General Flynn pleaded guilty to the charge of one count of making false statements to the FBI on January 24, 2017. This is true. But the DOJ’s motion deals with the plea. “This crime, however, requires a statement to be not simply false, but ‘materially’ false with respect to a matter under investigation. 18 U.S.C. § 1001(a)(2). Materiality is an essential element of the offense.”
The motion states that “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 do not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.” These sentiments are proved in the newly declassified documents, therefore demonstrating that this case never should have been brought before a judge.
“‘A determination to prosecute represents a policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances. . . .’ Justice Manual § 9-27.001. In the Government’s assessment—mindful of the high burden to prove every element of an offense beyond a reasonable doubt, and that ‘government prosecutors have a duty to do justice,’ United States v. Darui, 614 F. Supp. 2d 25, 37 (D.D.C. 2009)—continued prosecution of the charged crime does not serve a substantial federal interest. The Government respectfully moves to dismiss the criminal information with prejudice against Mr. Flynn.”
The Federal Bureau of Investigation (FBI) opened their investigation into General Flynn on August 16, 2016 with the “Crossfire Hurricane” investigation into candidate Donald Trump under the guise of “possible coordination with Russian official to interfere with the 2016 presidential election.” General Flynn (“RAZOR”) was targeted based on three facts: “Flynn’s service as a foreign policy advisor to the Trump campaign, his publicly documented connection to state-affiliated Russian entities, and the fact that he traveled to Russia in December 2015.” However, after four months of investigating him, the FBI “determined that Flynn was no longer a viable candidate as part of the larger Crossfire Hurricane umbrella case and prepared to close the investigation.” In fact, the FBI drafted a “Closing Communication to effect the termination of the case.”
Then the FBI learned of “communication between Flynn and Russian Ambassador Sergey Kislyak that had taken place in late December 2016 and which touched on matters of foreign policy.” Flynn had also been named as incoming National Security Advisor, despite the fact that he was a lifelong Democrat. The FBI had the transcripts of the subject calls and believed the investigation into Flynn was closed. The ‘7th Floor‘ (leadership) of the FBI wanted to keep the investigation open, even considered opening a new criminal investigation on the basis of violation of the Logan Act. “On January 4, 2017, FBI Deputy Assistant Director Peter Strzok learned that ‘RAZOR’s closure’ had not been timely executed, and the counterintelligence investigation into Mr. Flynn was, unexpectedly, still formally open. Ex. 7 at 1-2. Mr. Strzok immediately relayed the ‘serendipitously good’ news to Lisa Page, the Special Counsel to FBI Deputy Director Andrew McCabe, remarking that ‘our utter incompetence actually helps us.’ Id. at 1. Ms. Page reacted with surprise and relief. Id. Mr. Strzok, moreover, instructed agents to ‘keep it open for now’ at the behest of ‘the 7th Floor.’ Id. Mr. Strzok indicated that there was a ‘[n]eed to decide what to do with him.’ Id. Other internal FBI messages from that afternoon reflect apparently related conversations about a potential ‘interview.’ See id. at 2 (‘i heard pete say, ‘Andy and [redacted] will interview.…’). As of January 4, 2017, then, the FBI kept open its counterintelligence investigation into Mr. Flynn based solely on his calls with Kislyak—the only new information to arise since the FBI’s determination to close the case. See Ex. 3 at 2; Ex. 5 at 5.”
About January 15, 2017, FBI Director James Comey advised DOJ leadership of the investigation into Flynn with his concerns that the descriptions of the calls by the incoming White House official were not accurate and took the position that they would not notify the incoming administration of the Flynn-Kislyak communications. Deputy Attorney General (AG) Sally Yates and other DOJ officials had a different view and believed the incoming administration should be notified. However Director Comey “repeatedly ‘morphed,’ vacillating from the potential compromise of a ‘counterintelligence’ investigation to the protection of a purported ‘criminal’ investigation.”
“The Deputy Attorney General, Director of National Intelligence, and Director of the Central Intelligence Agency all agreed that the FBI should notify the incoming Trump administration of what had actually been said on the calls. Ex. 3 at 5. FBI Director Comey continued to refuse to brief the White House in a subsequent conversation with CIA Director John Brennan. Id.; Ex. 5.”
Comey acted without the approval of Deputy AG Yates as she demanded the “FBI notify the White House of the communications.” Prior to the interview “in the preceding days, senior officials at the FBI had been engaged in discussions about how to approach Mr. Flynn and whom to notify. On January 21, 2017, Mr. Strzok proposed to Bill Priestap, the FBI’s counterintelligence chief, that Mr. Flynn should be given a ‘defensive briefing’ about an investigation under the Crossfire Hurricane umbrella or alternatively an ‘interview under light ‘defensive briefing’ pretext.’ See Ex. 9 at 1. Mr. Strzok also noted that DOJ might ‘direct us’ to inform ‘VPOTUS or anyone else,’ speculating that this could lead to the ‘WH specifically direct[ing] us not to’ speak with Mr. Flynn. Id. On January 22, 2017, a FBI attorney emailed Mr. Strzok and Ms. Page that ‘if we usually tell the WH, then I think we should do what we normally do,’ though the official also noted that they could be ‘told not to  debrief or interview Razor.’ Id. at 2.” In an interview with Nicolle Wallace of CNN, Comey states that “this course of action was ‘something we, I probably wouldn’t have done or gotten away with in a more organized administration.”
The motion filed also states that Deputy Director Andrew McCabe advised Flynn, regarding his interview with FBI agents, “if Flynn wished to have anyone else at the meeting, including the White House (WH) counsel, the FBI would have to elevate the issue to DOJ.” … “Mr. Flynn was ‘unguarded’ in the interview and ‘clearly’ viewed the agents as ‘allies.’ When interviewing Mr. Flynn, Mr. Strzok and the other agent ‘didn’t show him the transcripts’ of his calls. Nor did the agents give, at any point, warnings that making false statements would be a crime.”
The FBI, after Flynn’s interview, expressed “uncertainty” as to whether or not Flynn had lied. In fact, according to the court documents, “FBI agents reported to their leadership the Mr. Flynn exhibited a ‘very sure demeanor’ and ‘did not give any indicators of deception.'”
In fact, “When Director Comey was asked, based on his evaluation of the case: ‘Do you believe that Mr. Flynn lied?’ Director Comey responded: ‘I don’t know. I think there is an argument to be made he lied. It is a close one.'” (Side note, the original document to charge General Flynn was filed November 30, 2017.)
General Flynn filed a “Motion to Dismiss Case for Egregious Government Misconduct and in the Interest of Justice” on January 29, 2020.
Federal Rule of Criminal Procedure 48(a) allows for the Government to “dismiss an indictment, information or complaint,” with leave of the court. The judge still needs to dismiss the case. However, the Government’s motion also addresses this. “When the Government so moves, the role for courts addressing Rule 48(a) motions is ‘narrow’ and circumscribed. United States v. Fokker Servs., B.V., 818 F.3d 733, 742 (D.C. Cir. 2016). The ‘leave of court’ provision serves ‘primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial harassment’ of the defendant” through repeated prosecutions—a prospect not implicated by, as here, a motion to dismiss with prejudice.” … “The discretion accorded the DOJ under Rule 48(a) recognizes that ‘decisions to dismiss pending charges … lie squarely within the ken of prosecutorial discretion’ and ‘at the core of the Executive’s duty to see to the faithful execution of the laws.’”
In fact, the Supreme Court has also decided this issue by stating, “(‘[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.’). As the Supreme Court has explained, the factors relevant to carrying forward with a prosecution, including ‘the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan,’ are ‘particularly ill-suited to judicial review.'”
The Government’s motion also permits the court to know, “For those reasons, a court should not deny the Government’s motion to dismiss ‘based on a disagreement with the prosecution’s exercise of charging authority,’ such as ‘a view that the defendant should stand trial’ or ‘that more serious charges should be brought.’ Fokker Servs., 818 F.3d at 742-43. Nor should a court second-guess the Government’s ‘conclusion that additional prosecution or punishment would not serve the public interest.'” This is stating that the Government is strongly urging the judge to sign off on the dismissal as the Prosecution essentially calls the shots here on what direction to go. If the Prosecution wants dismissed it should be.
The motion moves back to the subject of material. The FBI pushed to investigate Flynn on the basis that he was being “directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes. With its counterintelligence investigation no longer justifiably predicated, the communications between Mr. Flynn and Mr. Kislyak—the FBI’s sole basis for resurrecting the investigation on January 4, 2017—did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation.” In fact, “Flynn’s request that Russia avoid ‘escalating’ tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States.”
There was no question as to what was said on the calls. The FBI had the transcripts. So with no dispute as to what was said, there was “no factual basis for the prediction of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said.”
“In short, Mr. Flynn’s calls with the Russian ambassador – the only new information to arise since the FBI’s decision to close out his investigation did not constitute an articulable factual basis to open any counterintelligence investigation or criminal investigation. Mr. Strzok and Ms. Page apparently celebrated the ‘serendipitous’ and ‘amazing’ fact of the FBI’s delay in formally closing out the original counterintelligence investigation. Ex. 7 at 1. Having the ability to bootstrap the calls with Mr. Kislyak onto the existing authorization obviated the need for the ‘7th Floor’ of the FBI to predicate further investigative efforts. In doing so, the FBI sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens.”
This case is crucial. If this twisting and manipulation of the letter of the law can be perpetrated upon a presidential candidate — and a highly decorated general at that — what is to stop it from happening to you?
This motion filed by the Government has many tidbits in it and many exhibits. The link to review all 108 pages is at the top and repeated here.
We anxiously await the ruling of the judge. General Flynn’s counsel has endorsed this motion.