Flynn pleaded guilty in December 2017 to lying to the FBI about his contacts with Russia’s ambassador to the United States in the weeks leading up to Trump’s inauguration. But in 2019, Flynn hired new lawyers and in January he moved to withdraw his guilty plea and have the case dismissed, alleging government misconduct. Now, after defending the prosecution for more than two years, the Justice Department says it agrees with Flynn after all: He’s an innocent man.
The government claims it can’t prove that Flynn’s lies were material. A conviction on false statements requires materiality, but it’s a very low bar. A lie need only have the potential to influence a government decision. But the Justice Department now says it has concluded there was no legitimate reason for the FBI to interview Flynn and so any lies he told could not possibly be material.
The timeline in the government’s own pleading belies this claim. In early 2017, the FBI was investigating possible ties between the Trump campaign and Russian actors. After initially planning to close the file on Flynn, the FBI learned that January about his conversations with the Russian ambassador the previous month. Based on that new information, agents decided to keep the file open and interview him about those and other contacts. That, the government now says, was improper.
Let’s be clear about what the Justice Department is saying here: If you’re investigating the Trump campaign’s Russia contacts, and learn new information about a former campaign official (and now member of the administration) who recently had Russia contacts, there’s no good reason to talk to him. That claim is absurd on its face.
The government repeats the conservative canard that there was no need to interview Flynn because the FBI already had a transcript of his conversation with the ambassador. But the issue was never the exact words they exchanged — it was why the conversation took place and who directed Flynn to have the discussion. Was the incoming Trump administration potentially promising to ease sanctions on Russia as a quid pro quo for Russian assistance during the election? The Russia investigation was in its infancy, and agents didn’t know what they would learn, but they had an obligation to follow that lead. The fact that Flynn then chose to lie about his Russia contacts only heightens the suspicions that still surround them.
But the most remarkable thing about the government’s new claim that Flynn’s lies were not material is that the judge in this case has already ruled that they were. In an earlier motion to dismiss, Flynn’s attorneys made essentially this same argument: that his lies were not material because the FBI had no good reason to interview him. Agreeing with the prosecutors at the time and rejecting this argument, U.S. District Judge Emmet Sullivan ruled that Flynn “has a fundamental misunderstanding of the law of materiality.”
The government also now claims that prosecutors would have trouble proving that Flynn lied. They say that Flynn’s answers were “equivocal” or “indirect.” But in addition to all the evidence that led to the initial charge, Flynn has admitted under oath, twice, that he lied to the FBI.
So to sum up: The government claims it cannot prove materiality when the judge has already ruled the lies were material, and the government says it cannot prove Flynn lied when he has already admitted twice that he lied. Such a bizarre argument could be put forward only in a Trumpian world where facts truly don’t matter.
What’s more, the government pleading does not even address all of Flynn’s misconduct. As part of his guilty plea, Flynn also admitted to lying to the Justice Department in 2017 about his work on behalf of Turkey. Those lies had nothing to do with any FBI interview. But the government’s exoneration of Flynn ignores those lies — which, absent a pardon, a future Justice Department presumably would now be free to prosecute.
The pleading’s legal arguments might be laughable, but it does a good job of stoking the conspiratorial fires surrounding the FBI’s actions. It claims that the FBI did not follow proper protocols about opening case files or notifying other Justice Department officials about the interview — as though that has any bearing on whether Flynn told material falsehoods. And it prominently features FBI officials Peter Strzok and Lisa Page — two favorite Trump villains — allegedly scheming against Flynn and the president.
This incident is of a piece with the attorney general’s intervention in the sentencing of Roger Stone. Both episodes shredded the Justice Department’s credibility by injecting politics into a criminal prosecution, leading career prosecutors to withdraw from the case. It’s impossible to imagine the department reversing course like this in a case involving any other defendant who had already admitted guilt. But pals of President Trump can expect personal attention and legal contortions from this attorney general.
Trump has said he would consider pardoning Flynn and even giving him a new job in his administration. But with an attorney general like Barr to protect him, Trump doesn’t have to take the political heat for pardoning his cronies. Barr does Trump’s dirty work for him and claims that justice requires it.
As I said — lawless.