WASHINGTON — On Dec. 1, 2017, Michael Flynn walked into the federal courthouse in Washington, DC, and pleaded guilty to lying to the FBI.
He admitted he had lied to agents about his conversations with the Russian ambassador to the United States after the 2016 election, according to his plea deal with then–special counsel Robert Mueller’s office. He agreed to cooperate with the investigation into Russian interference in the election, in the hopes of scoring the government’s support for a lower sentence.
Over the next two years, however, what seemed like one of the most clear-cut, open-and-shut cases to come out of Mueller’s office unraveled into a politically charged morass. His sentencing was repeatedly delayed as he brought on new lawyers to try to claw back his guilty plea and lodge an attack, supported by his former boss President Donald Trump, on the prosecution itself.
On Thursday, the strategy paid off. Timothy Shea, who has been serving as the interim US attorney for the District of Columbia, filed papers with the court seeking to dismiss the entire criminal case against Flynn. Citing new evidence uncovered during a review of Flynn’s case by the Justice Department that Attorney General Bill Barr launched earlier this year, Shea wrote that the government was no longer persuaded that the January 2017 interview in which Flynn admitted lying to FBI agents “was conducted with a legitimate investigative basis.”
Regardless of whether Flynn lied, Shea wrote, federal criminal law required that lies had to be “material” to an investigation. Shea said the Flynn interview in 2017 about his contacts with the Russian ambassador were “untethered” to a counterintelligence investigation into Flynn related to the broader Russia probe that the FBI had been preparing to close at the time of the interview.
The FBI “sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens,” Shea wrote.
The filing from Shea technically doesn’t end Flynn’s legal battle on its own — the judge has to grant the motion to dismiss — but it is unusual for a judge to interfere when prosecutors say they no longer want to pursue a criminal case. Shea stressed in Thursday’s filing that judges can only deny a request by the government to drop a prosecution under very narrow circumstances.
In a statement released by the Justice Department, the US attorney tapped by Barr to review Flynn's case, Jeffrey Jensen said, "Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case. I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed."
Flynn’s lead attorney, Sidney Powell, did not immediately return a request for comment. Trump has decried the prosecution of Flynn but been publicly noncommittal about whether he would pardon his former national security adviser.
Democrats were quick to criticize the decision as a politically motivated ploy to benefit one of Trump’s allies. House Judiciary Committee Chair Jerrold Nadler released a statement calling the decision “outrageous” and saying he would ask the Justice Department’s inspector general to investigate.
“The decision to drop the charges against General Flynn is outrageous. The evidence against General Flynn is overwhelming. He pleaded guilty to lying to investigators. And now a politicized and thoroughly corrupt Department of Justice is going to let the President’s crony simply walk away. Americans are right to be furious and worried about the continued erosion of our rule of law,” Nadler said.
Former FBI deputy director Andrew McCabe, who played a central role in the decision to interview Flynn in January 2017, released a statement defending the interview and blasting the dismissal as “pure politics designed to please the president.”
“We opened the Russia investigation to determine if the Russian government coordinated with the Trump campaign. Mr. Flynn had prominent, high level interactions with Russian officials, so we investigated whether he might be that point of coordination. We received incontrovertible evidence that Mr. Flynn spoke to the Russian ambassador on more than one occasion, that he actively tried to influence the actions of Russian officials, and that those officials acceded to his requests. The FBI was obligated to interview him to better understand why he was talking to Russian officials,” McCabe said.
Until now, prosecutors — first from Mueller’s team, and later from the US attorney’s office in Washington — defended their handling of the case and rebuffed Flynn’s allegations of government misconduct. The motion to dismiss the case filed on Thursday is signed by Shea alone.
A few hours before Shea filed the notice, Brandon Van Grack, one of the lead prosecutors and a former member of Mueller’s team, notified the court that he was withdrawing from the case. He did not provide an explanation. Van Grack did not immediately return a request for comment.
“Frail and shifting justifications”
Flynn’s attack on the prosecution tracked a common refrain from Trump — that the investigation by the FBI and, later, Mueller’s office, was a politically motivated attack against Trump and his administration.
Flynn’s lawyers tried to dismantle the prosecution from multiple angles. They initially argued that the case should be dismissed because prosecutors failed to fulfill a legal requirement to turn over evidence that might be helpful to Flynn’s defense, known as “Brady” materials. But Sullivan ruled in December that Flynn’s lawyers hadn’t proven any violations by the government.
They tried again after the Justice Department’s inspector general released a report in December identifying problems with applications submitted by DOJ officials to the Foreign Intelligence Surveillance Court to carry out surveillance of former Trump campaign adviser Carter Page as part of the investigation into Russian interference in the election. Flynn’s lawyers argued the inspector general’s report was proof that Flynn’s case was rooted in “egregious government misconduct.”
At each turn, prosecutors argued that none of the information presented by Flynn’s lawyers changed the fact that he’d lied to the FBI, the only crime he was charged with, and that he’d admitted it.
But Barr fueled Flynn’s theory of government misconduct earlier this year when he appointed Jensen, the US attorney for the Eastern District of Missouri, to do an outside review of Flynn’s case.
In late April, Flynn’s lawyers released a new set of documents that Jensen’s review had uncovered, including emails and notes prepared by FBI officials around the time of the Flynn interview. On one page of handwritten notes with “01/24/2017” in the corner that Flynn’s lawyers received from prosecutors and filed on the public court docket, someone had written, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” The document didn’t indicate who wrote it, but the Washington Post reported that it was E.W. Priestap, the former assistant director of the FBI’s counterintelligence division who retired at the end of 2018.
Elsewhere on the page, the author wrote: “Our goal is to determine if Mike Flynn is going to tell the truth @ his relationship w/ Russians.”
Flynn’s lawyers also released text messages between Peter Strzok and Lisa Page — two former FBI officials involved in the Russia investigation who have been the frequent subject of attacks from Trump — and at least one other person whose name is redacted discussing keeping the FBI’s investigation into Flynn open in the weeks leading up to the January 2017 interview.
“Since August 2016 at the latest, partisan FBI and DOJ leaders conspired to destroy Mr. Flynn,” Flynn’s lawyers wrote in an April 24 brief accompanying the disclosure of the new documents.
Flynn had agreed as part of his plea deal that his lies were “material” without a full understanding of what was going on behind the scenes at the FBI, Shea wrote in Thursday’s filing. And what’s more, Shea said he was no longer convinced that prosecutors could prove “beyond a reasonable doubt” that Flynn lied at all — he wrote that Flynn’s answers were “vague,” the FBI agents at the time didn’t think Flynn showed signs of lying, and then–FBI director James Comey had characterized it as a “close call.”
For a lie to be “material,” Shea wrote, it has to be more than even just relevant to the investigation — it has to bear directly on decision making in that investigation. The FBI already had transcripts of the calls between Flynn and then–Russian ambassador to the US Sergey Kislyak, and those calls alone weren’t enough to continue the counterintelligence investigation or to open a new criminal investigation, he wrote.
“In the case of Mr. Flynn, the evidence shows his statements were not ‘material’ to any viable counterintelligence investigation — or any investigation for that matter — initiated by the FBI,” Shea wrote.
The fact that Flynn may not have accurately told Vice President Mike Pence or then–White House press secretary Sean Spicer about the substance of the Kislyak calls — the reason Trump said he’d fired Flynn — also wasn’t enough to support the investigation, Shea wrote.
“The frail and shifting justifications for its ongoing probe of Mr. Flynn, as well as the irregular procedure that preceded his interview, suggests that the FBI was eager to interview Mr. Flynn irrespective of any underlying investigation,” he wrote.
"Thank you Mr. President!!”
Flynn briefly served as Trump's first national security adviser before he resigned in mid-February 2017 amid reports that he misled Pence about his communications with Kislyak during the presidential transition period. Several weeks before he resigned, Sally Yates, the acting attorney general, had warned the White House that Flynn could be subject to blackmail by the Russian government because it was aware Flynn had made false statements.
In December 2017 — right after Flynn’s plea deal became public — Trump tweeted that he “had to fire General Flynn because he lied to the Vice President and the FBI.” But the administration’s attitude has evolved since then. In a sign that the Trump administration was embracing Flynn’s cause, Pence told reporters in late April that he was “inclined, more than ever” to believe that any omissions by Flynn about his contacts with Kislyak had been “unintentional.”
Flynn was initially part of a joint defense agreement with Trump, but withdrew in November 2017, according to Mueller's final report. At the time, one of Trump's personal attorneys, John Dowd, left a voicemail for Flynn's lawyer questioning Flynn's reason for pulling out. Dowd said that if Flynn had cut a deal with prosecutors, "remember what we've always said about the president and his feelings toward Flynn, and that still remains." (The judge in Flynn's case released the audio of the recording in early June.)
According to Mueller, when Flynn's counsel reiterated to Dowd that they could no longer share information, Dowd "was indignant and vocal in his disagreement" and said he'd report the "hostility" back to Trump. Flynn's lawyer told the special counsel's office that they interpreted this as an effort to get Flynn to reconsider his position.
Flynn pleaded guilty in court on Dec. 1, 2017. He agreed to cooperate with Mueller's office, and the materials he turned over to prosecutors included Dowd's voicemail, according to a presentencing memo that prosecutors filed in court detailing Flynn's assistance to the government.
As part of his plea deal, Flynn admitted that in January 2017 he had lied to the FBI about several interactions with Kislyak. He told agents he hadn't asked Kislyak to avoid escalating Russia's response to the Obama administration's announcement of sanctions in December 2016, when, in fact, he had. He also told agents that he hadn't asked any countries to take a specific position on a United Nations resolution about Israeli settlements, when, again, he'd discussed it with Kislyak.
Flynn wasn't charged with any other crimes besides one count of making false statements about his interactions with Kislyak, but his plea agreement also included an admission that he'd made false statements to the US Department of Justice about work he'd done for the benefit of the Turkish government. In filings to the department under the Foreign Agents Registration Act, Flynn had represented that he didn't know the extent of the Turkish government's involvement in a project he was working on, when in fact Turkey was involved in overseeing the project.
Flynn appeared for a sentencing hearing before Sullivan in December 2018, but in a surprise move cut the hearing short and told the judge he wanted a delay.
During the hearing, Sullivan had repeatedly questioned whether Flynn wanted to be sentenced before he was completely finished with any possible cooperation with the government and could present the court with the totality of his assistance to the feds. The judge also had harsh words about the crimes Flynn had pleaded guilty to and warned that he couldn't guarantee he wouldn't send Flynn to prison.
"I'm not hiding my disgust, my disdain for this criminal offense," Sullivan said at the time. Flynn took Sullivan up on the judge’s offer to delay the sentencing to allow Flynn to finish his cooperation.
In advance of the December 2018 sentencing hearing, prosecutors had asked that Flynn get credit for his cooperation. Flynn met with the special counsel's office and other Justice Department offices 19 times, for a total of 63 hours, according to court filings.
But that relationship turned sour, at least publicly, starting in June 2019, when Flynn replaced his former lawyers with a new team led by Powell — a Trump supporter, Mueller critic, and regular commentator on Fox News. Trump praised the pick, tweeting on June 13 that Flynn "has not retained a good lawyer, he has retained a GREAT LAWYER, Sidney Powell."
Powell replied, "Thank you Mr. President!! I'm honored," fueling speculation of a closer relationship between Flynn and Trump going forward.
Flynn’s sentencing was delayed again in February of this year as Flynn pursued another line of attack on his case, that he’d been ill-served by his former team of lawyers.
Updated with comment from Jeffrey Jensen.