WASHINGTON – The Justice Department on Thursday moved to drop the charges in its long-running criminal case against President Donald Trump’s former national security adviser Michael Flynn, ending one of the most politically charged and controversial cases stemming from the now-closed investigation of Russian meddling in the 2016 presidential campaign.
“The government has determined … that continued prosecution of this case would not serve the interests of justice,” U.S. Attorney for the District of Columbia Timothy Shea, a Trump appointee, wrote in a 20-page court filing that read like an indictment of the government’s previous case against Flynn.
The move marked a dramatic turnabout in a celebrated case that often inflamed partisan passions in Washington and among the general public.
Trump and his allies portrayed Flynn, a retired three-star general, as the victim of rogue prosecutors, while Democrats saw him as a Trump operative who made secret contacts with a Russian diplomat and then lied about it to both the FBI and White House officials, including Vice President Mike Pence.
Flynn pleaded guilty in 2017 to one count of lying to FBI agents about a series of conversations he had with Russia’s then-ambassador to Washington, Sergey Kislyak, about Obama administration sanctions during the Trump presidential transition in December 2016.
Flynn was also found to have acted as an unregistered agent of Turkey in the United States, but prosecutors for former special counsel Robert Mueller’s office agreed not to charge him with that crime in exchange for his cooperation.
At his sentencing hearing in 2018, a federal judge told Flynn that lying to the FBI was a “very serious offense.” The offense carries a punishment of up to five years in prison.
“I’m not hiding my disgust, my disdain, for this criminal offense,” Judge Emmet Sullivan said.
Flynn, who cooperated with the special counsel investigation, then asked Sullivan to delay his sentencing. In recent months — backed by a new defense team — Flynn sought to withdraw his guilty plea, blaming his former attorneys for an action he subsequently regretted.
In a motion to dismiss the case, Shea, the U.S. attorney, wrote that Flynn pleaded guilty to making false statements that were not “material” to any investigation. Moreover, he said, the Department of Justice had concluded it could not prove its case beyond a reasonable doubt.
Furthermore, he added, “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.”
A turning point in the case came earlier this year after Attorney General William Barr directed U.S. Attorney Jeffrey Jensen of the Eastern District of Missouri to review the Flynn case.
Jensen uncovered thousands of documents related to the case and recently turned them over to Flynn’s defense team. The defense lawyers claimed the evidence proved that Flynn had been set up by the FBI.
Barr, a close Trump ally and staunch critic of the Mueller probe into allegations that Russia meddled in the 2016 election to help Trump beat Democrat Hillary Clinton, signed off on prosecutors’ decision to drop the case.
“Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” Jensen said in a statement. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”
Trump, who fired Flynn over lying about his contacts with the Russian ambassador, nonetheless has repeatedly called him a “good man” and suggested he might pardon him. On Thursday, he said that prosecutors had “tormented” the retired three-star general.
“He was an innocent man,” Trump said. “Now in my book, he is an even greater warrior.”
Paul Rosenzweig, a former Justice Department official now with the R Street Institute, said Barr dropped the case against Flynn in order to spare Trump the political ramifications of issuing a pardon.
“It sets a dangerous precedent for how corruption and foreign influence peddling will be treated now and in the future,” said Rosenzweig, a frequent Trump critic.
The FBI first opened an investigation into Flynn as early as August 2016 as part of its examination of suspicious ties between the Trump campaign and Russia. But even as investigators prepared to close the case after finding no “derogatory information” on Flynn, the “FBI leadership” decided to continue the probe “on the basis of the calls” to Kislyak, according to court filings.
On January 4, 2017, when then-FBI supervisor Peter Strzok learned that the Flynn case had not been closed, he conveyed what he called the “serendipitously good” news to FBI lawyer Lisa Page, saying that “our utter incompetence actually helps us,” according to Shea’s filing.
Strzok and Page — who were romantically involved — were later found to have exchanged anti-Trump text messages while serving on the Mueller team.
John Malcolm, a former federal prosecutor now with the conservative Heritage Foundation, said the decision to drop the charges against Flynn was “the right thing to do” given the recent revelations about the FBI’s conduct.
“There was a very, very weak factual predicate for interviewing General Flynn in the first place,” Malcolm said. “They certainly violated protocols when they came into his office without going to the White House counsel’s office. It was something of an ambush interview.”
The turnaround in the Flynn case mirrors the case of longtime Trump associate Roger Stone in which senior federal prosecutors reversed their sentencing recommendation and called for “far less” time than their original recommendation of seven to nine years.
That prompted four federal prosecutors working on the case to withdraw. In a similar move, Brandon Van Grack, a former Mueller prosecutor, withdrew from the Flynn case shortly before DOJ moved to dismiss the case.
“Given the Justice Department’s about-face in its sentencing recommendation for Roger Stone in February — which essentially undermined the work of career prosecutors from the Mueller investigation — this does not bode well for the DOJ’s reputation as an apolitical, fair-minded institution under Bill Barr,” said Kimberly Wehle, a former prosecutor who is now a visiting professor at the American University Washington College of Law.