An Ugly Day for the Justice Department

It is exceptionally rare for the U.S. Department of Justice to move in court to dismiss a case in which a defendant has—ably assisted by first-class lawyers—entered into a plea agreement to spare himself prosecution on more serious felony charges. It is rarer still for the government to do so without acknowledging that it violated any law or that the defendant’s rights were somehow infringed. And it is still rarer yet for the government to take such a move without a single career prosecutor being willing to sign onto the brief seeking dismissal.

Yet this is what the government did today, May 7, in the case of Michael Flynn, the man who ever-so-briefly served as national security adviser for President Trump at the beginning of his administration.

Flynn pleaded guilty in a very generous deal with Special Counsel Robert Mueller in December 2017, a deal under which—instead of being prosecuted for serious violations of the Foreign Agents Registration Act—he was allowed to plead guilty to a single felony false statements charge under 18 U.S.C. § 1001. In reaching that plea deal, Flynn was represented by the well-resourced law firm of Covington & Burling.

The plea agreement was so generous to Flynn, in fact, that at the time, it appeared to be an indication that Mueller anticipated Flynn’s cooperation would be extremely valuable. Yet the government today argued in court, “based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.”

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The Justice Department did not merely contend that Flynn should be allowed to withdraw his plea, as he has been seeking to do. It argued that the entire case should be dismissed with prejudice—meaning that the case should be dismissed in a fashion that would preclude its being refiled. “Continued prosecution of the charged crime,” the motion states, “does not serve a substantial federal interest.”

The government’s 20-page brief is not an honest document—perhaps the reason that it is signed only by Timothy Shea, the interim U.S. attorney for the District of Columbia—and not a single one of the career prosecutors who worked on the case. That may also be the reason why Brandon Van Grack, the prosecutor who has worked the case from the beginning, moved to withdraw from the case entirely just hours before the Justice Department filed its motion.

The brief’s account of the history of the Flynn case is not accurate, its account of the government’s own conduct equally flawed. And it all leads up to a conclusion so obviously wrong that one does not need to know anything about counterintelligence to see through it: that there is no reasonable basis even to interview a senior government official when that person has engaged over sanctions imposed against a foreign adversary government that interfered in an election—and who subsequently lied to the vice president of the United States about the substance of his conversation with an agent of that government. Based on this position, the Justice Department today took an even greater leap: that it is perfectly legal for the official, if interviewed under these circumstances, to lie through his teeth repeatedly to the FBI agents who show up to interview him.

These are quite literally the positions that the Justice Department under Attorney General William Barr took today in a U.S. federal court. Here’s the brief:

Much of the government’s brief purports to be an account of the history of the Flynn investigation leading up to his Jan. 24, 2017, interview by FBI agents. It is not an honest history. Across a number of axes, it presents a tendentious version of events that play to a variety of preexisting ideas about the Justice Department and FBI in that period. It portrays FBI Director James Comey as insubordinate to a hapless Deputy Attorney General Sally Yates; and it portrays FBI officials Peter Strzok and Lisa Page as scheming villains. And Flynn’s own conduct, meanwhile, it consistently minimized. But leave for another day the deficiencies of the account. Let’s assume for a moment it’s not merely true but complete and fair. The government’s conclusion still does not follow from the facts the brief recounts.

The argument relies heavily on documents released by U.S. Attorney for the Eastern District of Missouri Jeffrey Jensen, handpicked by Barr to “review” the Flynn prosecution. Crucial to the Justice Department’s argument are documents showing that the FBI had, by Jan. 4, 2017, drafted a memo determining it should close the Flynn investigation but had not formally done so, and that upon learning of Flynn’s call with Russian Ambassador Sergey Kislyak, the FBI chose instead to keep the investigation open.

The department filing presents the reversal on closing the Flynn investigation as evidence of something untoward. It points to a statement in the draft closing memo that the bureau had found “no derogatory information” on Flynn and therefore lacked a basis to “predicate further investigative efforts,” and then argues that the Kislyak call “did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation.” The suggestion seems to be that the FBI was ready to close up shop on Flynn when its leadership turned to the Kislyak call as an excuse to keep it open. “In doing so,” the motion states, “the FBI sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens.”

The reality is more mundane: The FBI prepared to close an investigation and when presented with new evidence decided to keep it open. The fact that the investigation hadn’t been formally closed was a matter of bureaucratic convenience; the process of reopening a closed investigation requires paperwork and since this one hadn’t been closed, there was nothing to reopen. In any case, the order of events isn’t at all relevant to the core question: Did a properly predicated investigation exist at the time FBI agents interviewed Michael Flynn? We’ll turn to the details in a moment, but the bottom line is that the predication isn’t a close call.

Astonishingly, the government brief claims otherwise. The government’s argument hinges on the notion that Flynn’s December 2016 phone call with Kislyak—in which Flynn advised the Russian government not to respond to sanctions newly issued by the Obama administration in response to Russian election interference—was, fundamentally, not a matter of concern. Because the call with Kislyak was “entirely appropriate,” the Justice Department argues, the FBI’s discovery of that call was insufficient as an investigative basis to continue the bureau’s counterintelligence investigation into Flynn.

What’s more, the government argues, the fact that Flynn lied about these conversations to Vice President Pence, who publicly repeated the lie, also “did not create a predicate for believing he had committed a crime or was beholden to a foreign power.” And because the FBI lacked a predicate for the investigation in which it interviewed Flynn, the government argues, Flynn’s lies to FBI agents about the call were not “material” to that investigation as required under § 1001.

To understand how bizarre the government’s theory of the case has become, let’s step back a moment and consider the standards for predication. Under the Attorney General’s Guidelines, the predication standard for a full investigation requires the government to have an “articulable factual basis” to “reasonably indicate” that “an activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity.” In other words, to take the view that the FBI had no reasonable investigative predicate for the Flynn case on Jan. 24, 2017, one has to believe that the following fact-pattern, considered in its entirety, provides no reasonably articulable basis for a counterintelligence concern:

• A senior official with a TS/SCI (top secret/sensitive compartmented information) clearance working in the White House has ties to various Russian government entities.
• He has traveled to Russia and taken large sums of money from a state-controlled Russian media outfit.
• As the investigation of these matters was winding down, he had phone conversations with the Russian ambassador at a time when the United States had just imposed sanctions on Russia for interfering in the 2016 elections. In those conversations, he had asked that Russia to respond only in a measured fashion.
• He subsequently lied to the vice president of the United States and other White House officials about the substance of those calls, causing the White House to issue inaccurate statements to the public.
• The Russian government was aware of these lies, having participated in the phone calls, and the official was thus potentially subject to blackmail.

Recall that predication is cumulative. While the FBI had previously examined Flynn’s ties with Russia and found no derogatory information based solely on those ties, his call with Kislyak and subsequent behavior raised new questions about whether something had been missed. It potentially cast the earlier interactions in a very different light.

Notably, among the exhibits attached to the motion are two FBI interviews with Yates and Mary McCord, who was heading the Justice Department’s National Security Division in January 2017. According to the interviews, both Yates and McCord told the special counsel’s office of their alarm upon learning that Flynn had lied to Pence and that Pence has repeated the lie. Yates later testified before Congress about her reaction on learning of Flynn’s conversations with Kislyak as well and her particular concern about the fact that Flynn had apparently lied to Pence, saying she “felt like it was critical that we get this information to the White House, ...  in part because the vice president was unknowingly making false statements to the public and because we believed that General Flynn was compromised with respect to the Russians.”

When Yates publicly testified in May 2017 about the concerns with Flynn’s call, few people suggested that his conversation with Kislyak was “entirely appropriate,” much less that Flynn’s lying to Pence was irrelevant. Even fewer had the audacity to argue that Flynn’s lying to the FBI about the matter was legally within his rights.

But this latter claim is exactly what the new Justice Department filing advances. The Justice Department’s argument that Flynn’s conversation with Kislyak, and his subsequent lies to Pence, did not constitute a sufficient predicate for continuing an investigation allows it to take its final step: the contention that Flynn’s lies to the two FBI agents who interviewed him were immaterial—and therefore legal. Section 1001 criminalizes “knowingly and willfully … mak[ing] any materially false, fictitious, or fraudulent statement or representation” to federal investigators, where “material” means “predictably capable of affecting ... [an] official decision.” The motion argues that there was no way Flynn’s lie could have affected FBI decision-making if there was no real national security risk and the FBI was just out to “criminalize” Flynn from the beginning: “Even if he told the truth, Mr. Flynn’s statements could not have conceivably ‘influenced’ an investigation that had neither a legitimate counterintelligence nor criminal purpose,” the government contends.

The Justice Department is arguing here nothing less than that it is okay for a counterintelligence subject to lie to the FBI about interactions with foreign governments under certain circumstances. The argument fails for the same reason the earlier argument fails: The investigation had proper predication, so the lies were material.

As astonishing as the motion is, it does not come out of nowhere. Van Grack is only the latest of Mueller’s prosecutors to withdraw from a case seemingly in light of mishandling by the Justice Department under Barr: In February 2020, all four assistant U.S. attorneys prosecuting Roger Stone removed themselves from the case on the same day that the department filed a sentencing memo undercutting their work. U.S. Attorney for the District of Connecticut John Durham, selected by Barr to conduct an ambiguous “review” of the Mueller investigation, continues his work. A year after the public release of the Mueller report, Barr has yet to give up on his project of dismantling the investigation—even in the midst of a deadly pandemic.

In an interview with CBS this evening, Barr defended his decision. Claiming he had a duty to dismiss the charges, the attorney general lamented, “It’s sad that nowadays these partisan feelings are so strong people lose any sense of justice.” Barr is right about this—but his words have more than a whiff of projection about them. When asked how history would view his decision, Barr chuckled that “history is written by the winners, so it largely depends who’s writing the history.”

He’s right about that too. And having won, at least for now, he is busily rewriting history.

Correction: An earlier version of this article misstated the nature of Flynn’s engagement with Kislyak over sanctions.