Attorney General William Barr’s motion to dismiss the charges against Michael Flynn has justifiably provoked, “in addition to outrage, a sense of utter demoralization” within the law enforcement community.
Barr’s arguments are so convoluted and wrong that they don’t even begin to make sense, either as a matter of law or common sense.
It is now up to U.S. District Court Judge Emmet Sullivan to decide whether or not to grant the motion and dismiss the case. Judge Sullivan can do the country a great service by demanding that the government prosecutors explain themselves and, ultimately, denying the motion.
The issue is not overly complicated. One doesn’t need to be an expert in criminal law to see through Barr’s specious argument.
On November 30, 2017, Flynn pleaded guilty to “willfully and knowingly” making two “materially false, fictitious, and fraudulent” statements to agents of the FBI:
1) Flynn falsely denied asking Sergey Kislyak, then Russia’s ambassador to the United States, on December 29, 2016 to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia that same day; and
2) Flynn falsely denied that he had asked the Russian ambassador to delay the vote on or defeat a pending United Nations Security Council resolution.
According to the government’s Statement of the Offense, which was part of Flynn’s plea agreement, at the time Flynn told these lies, the FBI had an open investigation into Russia’s efforts to interfere with the 2016 presidential election, “including the nature of any links between individuals associated with the Campaign [i.e., the 2016 Trump presidential campaign] and Russia, and whether there was any coordination between the Campaign and Russia’s efforts.”
None of this is disputed in Barr’s motion to dismiss the charges against Flynn. Rather, Barr claims that the case should be dismissed because the DOJ does not believe that Flynn’s statements were “material [to the underlying investigation] even if untrue.”
Materiality is an essential element of the crime to which Flynn pled guilty. In order for a lie to be a crime, it must be material to the underlying investigation. As Barr’s motion points out, the materiality threshold ensures that misstatements to investigators are criminalized only when linked to the particular subject of their investigation.
At the time Flynn made his statements, the government was pursuing two related counterintelligence investigations, codenamed Crossfire Hurricane and Crossfire Razor.
Crossfire Hurricane, opened in July of 2016, focused on whether individuals associated with the Trump campaign were coordinating, wittingly or unwittingly, with the Russian government’s efforts to interfere with the 2016 U.S. presidential election.
The Crossfire Razor investigation arose out of Crossfire Hurricane. Crossfire Razor was the FBI’s codename for Flynn. According to a January 4, 2017 draft FBI closing memorandum, the subject of the investigation was whether Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.”
It would seem obvious that a secret conversation between Flynn and the Russian ambassador about national security issues is not only “linked” to the subject of the investigation of whether Flynn “coordinated activities” with Russia in a manner that could be a threat to national security, but goes to the very heart of it.
But if that weren’t enough, think about what the FBI already knew before it interviewed Flynn on January 24, 2017:
- The FBI not only knew that Flynn had discussed sanctions with Kislyak, they had full transcripts of the discussions, obtained through routine, entirely legal electronic surveillance of Kislyak;
- On January 13, 2017, Trump’s transition spokesman Sean Spicer had laid out a timeline that the FBI knew to be false, claiming that Flynn’s communications with the Russian ambassador had been nothing more than holiday greetings and routine discussion of “the logistics of setting up a call” with the president of Russia. “That was it, plain and simple”;
- On January 15, 2017, Vice President-elect Mike Pence, specifically citing Flynn as the source of his information, said that Flynn and Kislyak “did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure on Russia.” Flynn’s conversations, according to Pence, “had nothing whatsoever to do with those sanctions.”
In other words, at the time they conducted the interview, the FBI knew that Flynn had discussed sanctions with the Russian ambassador in a way that arguably undermined the policy of his own government, and that Flynn had likely lied to the future vice president and the future White House spokesman about those conversations.
Anybody with half a brain could understand that this turn of events not only justified an interview with Flynn, but required one. Failing to conduct the interview in these circumstances would have been a shocking dereliction of duty.
But Barr has come up with a convoluted, specious argument that even if Flynn lied about his dealings with Russia, the lies weren’t “material.” It goes something like this:
Before Flynn’s late-December call with Kislyak, the FBI had planned to close the Crossfire Razor investigation because it hadn’t turned up any “derogatory information.” Even though the closing memorandum was still in draft form, had not yet been approved, and the investigation had not yet been closed, the Crossfire Razor investigation was somehow “no longer justifiably predicated.” Neither the discovery of the secret communications between Flynn and Russia nor the fact that Flynn had lied about them to Pence and Spicer changed anything.
In other words, because the investigation hadn’t found any derogatory information about Flynn until they did find some, the investigation was “no longer justifiably predicated.” And because the government investigators thought about closing the investigation before they obtained new incriminating evidence, the investigation should have been considered closed even though it was open.
This is just rubbish.
The Crossfire Razor investigation was open when the FBI interviewed Flynn. And at the time of the interview, the FBI knew that Flynn had held secret discussions with Russia about national security matters, and then lied about it repeatedly. They had to interview him.
Moreover, the umbrella investigation under which Crossfire Razor was established, Crossfire Hurricane, was also still open. Secret conversations with Russia about sanctions imposed by the Obama administration were potentially highly relevant to the issue of possible coordination with Russia’s interference in the 2016 election. At the very least, such dealings would raise the question of possible payback for Russia’s help with the election.
There are at least two likely explanations for Barr’s taking such an obviously bogus position.
The most obvious is that he was—yet again—acting primarily to please Trump, his mentor and mob boss.
Less obvious, but perhaps equally likely, is that Barr doesn’t like the way the FBI conducted the interview. Barr clearly believes that rather than handing Flynn the rope with which he could hang himself, the FBI should have told him in advance that they knew there was a disconnect between the facts and what Flynn had told Spicer and Pence, and steered him onto safe ground. But that wouldn’t provide a legal rationale for dismissing the case, so Barr had to make one up.
At the end of the day, however, it really doesn’t matter what pretext Barr offers for his actions. What matters is that he is subverting justice.
Judge Sullivan should not let him get away with it.