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Trump’s DOJ Says It Can’t Prove Michael Flynn Did the Crime He Confessed To

Intelligencer logo Intelligencer 5/7/2020 Eric Levitz
a man wearing a suit and tie: In like Flynn. Brendan Smialowski/AFP via Getty Images © Brendan Smialowski/AFP via Getty Images In like Flynn. Brendan Smialowski/AFP via Getty Images

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

The Justice Department dropped all charges against Michael Flynn Thursday, saying that it did not believe it could prove the former White House national security adviser was guilty of making false statements to the FBI — despite the fact that in December 2017, Michael Flynn pleaded guilty to making false statements to the FBI.

Flynn’s case took a long and winding road through the justice system. But the former intelligence official’s guilt, and the reasons why the DOJ is suddenly uninterested in proving it, both appear straightforward.

Shortly after Donald Trump won the presidency, the Obama administration imposed sanctions on Russia for its interference in the 2016 election. One day after those sanctions became public, Flynn spoke with Russian ambassador Sergey Kislyak, encouraging Moscow not to retaliate. That call eventually became public knowledge. But the incoming Trump administration denied that Flynn had discussed sanctions during his conversation with Kislyak. U.S. intelligence officials knew this was untrue. This struck the FBI as concerning and potentially relevant to its ongoing investigation into Russian interference. So they interviewed Flynn, who proceeded to make a false statement to the FBI about what he had discussed with the Russian ambassador.

Several months and one special counsel’s appointment later, Flynn pleaded guilty to this crime and agreed to cooperate with Robert Mueller’s probe. This reportedly baffled Donald Trump’s then-lawyer John Dowd, who had told Flynn’s counsel that he could expect a full pardon if he contested the allegations against him and lost.

Flynn later decided that he had received poor counsel and withdrew his guilty plea. Last summer, he fired his attorneys and replaced them with Sidney Powell, a conservative commentator who’d authored a book-length indictment of the Mueller investigation titled Licensed to Lie: Exposing Corruption in the Department of Justice. Last week, Powell and his team argued that recently disclosed FBI emails and notes demonstrated that Flynn had been trapped into lying, and proved that the interview itself had lacked any legitimate basis. “If we’re seen as playing games, WH will be furious,” one page of these notes reads. “Protect our institution by not playing games.” It is not clear how these documents prove that the FBI had no legitimate reason to interview a member of the Trump campaign who had lied about his contacts with a Russian official as part of an investigation into potentially illicit cooperation between the Trump campaign and Russian government.

Nevertheless, Bill Barr’s Justice Department found Powell’s case persuasive. Last week, Brandon Van Grack, a prosecutor from Mueller’s team who had been assigned to Flynn’s case, withdrew as the government’s counsel. Meanwhile, Jeff Jensen, a U.S. Attorney whom Barr had appointed to review the department’s handling of Flynn, recommended that it drop all charges. On Thursday, this position was made public in an official filing, in which the federal government declared that the FBI’s interview of Flynn had been “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” and was therefore “conducted without any legitimate investigative basis.”

“Moreover, we do not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt,” the filing claimed.

In sum: The arc of Michael Flynn’s case was long, but it bent toward the debasement of justice.

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