The Flynn Dismissal: A Shot in Trump's War on the Mueller Investigation

Michael Flynn walks down the West Wing Colonnade. (photo: Chip Somodevilla/Getty Images)

By Jeffrey Toobin, New Yorker

09 May 20

readersupportednews.org

 
or someone who lies a great deal, President Trump can be remarkably transparent. Shortly after Attorney General William Barr’s Justice Department moved to dismiss the guilty plea of Michael Flynn, the former national-security adviser, Trump tweeted, “Yesterday was a BIG day for Justice in the USA.

Congratulations to General Flynn, and many others. I do believe there is MUCH more to come!” Much more to come. This means that Trump and his Administration will continue to try to disassemble the legacy of the special counsel Robert Mueller’s investigation of the 2016 campaign and its aftermath—and to pretend that a coverup amounts to an exoneration.

Matters of legal procedure often lend themselves to obfuscation, but the Flynn case is pretty straightforward. At the end of 2016, the F.B.I. was winding down an investigation of Russian interference in the Presidential election. But during the transition period after Election Day, American authorities intercepted a phone call between Flynn, who had been a Trump adviser in the campaign, and Sergey Kislyak, who was then the Russian Ambassador to the United States. Afterward, the F.B.I. became aware that Flynn was lying to the public and others about what was said during the call about President Obama’s imposition of sanctions on Russia.

Flynn lied by saying that he had not discussed the sanctions with Kislyak.) In doing so, Flynn had opened himself up to blackmail from the Russians about the contents of the call. To follow up, a pair of F.B.I. agents interviewed Flynn on January 24, 2017, less than a week after he started his job as the national-security adviser. Flynn lied to them, too. Later that year, as the investigation by Mueller continued, Flynn pleaded guilty to lying to the agents.

There, following sentencing, is where the matter should have ended. But Trump has been complaining for some time that Flynn was ill-treated. This was a tough argument to make, because Flynn was a sophisticated defendant, with highly regarded lawyers, who made an informed decision to admit his guilt—in two separate proceedings, as it happened. The President always had the right to pardon Flynn, and he probably would have done so, but the Justice Department has done his dirty work for him. This is an especially disturbing part of the Flynn denouement. A pardon would have been outrageous but within Presidential prerogative. Instead, the Justice Department manufactured a phony pretext to pretend that Flynn’s guilty plea was illegitimate.

The Justice Department’s action here may be unprecedented. I do not know of another instance where the department has voluntarily dropped a case in which the defendant had pleaded guilty—especially a case such as this, in which the judge had already rejected the arguments that Barr’s subordinates made in dismissing the case. Those arguments are weak. 

As the journalist Marcy Wheeler has shown, there is no new information that recently came to the attention of the Justice Department. Instead, the department’s main legal argument is the assertion that the F.B.I. had no reason to interview Flynn in the first place—and that, accordingly, the subject matter of the interview was not “material” to an investigation. (The law only allows prosecutions of false statements when those statements are “material” to a pending investigation.) 

But the F.B.I.’s approach to Flynn was totally legitimate, and Flynn’s lies were highly material to the investigation. Indeed, there was so much concern about Flynn’s behavior that Sally Yates, the acting Attorney General, paid a visit to Don McGahn, the new White House counsel, to express her alarm about what Flynn was doing. Interviewing Flynn was a crucial step in that investigation.

Barr’s supporting role in Trump’s war on the Mueller legacy has been clear for some time. In February, the Justice Department overruled its own line prosecutors in the case of Roger Stone, who was also indicted as part of the special counsel’s investigation, and recommended a lower sentence than the prosecutors had. (All four lawyers on the case promptly dissociated themselves from the prosecution, and one quit the Justice Department.) Trump, in the meantime, has expressed great sympathy for Stone’s plight. Pardons for Stone and for two other prominent defendants in the investigation—Paul Manafort, Trump’s former campaign chairman, and George Papadopoulos, a campaign aide—seem more likely than not.

Judge Emmet Sullivan, who presided over the Flynn case, still has to approve the dismissal. Given his honorable conduct of the case so far, Sullivan is likely to be aggrieved by what the Justice Department has done, and he may express that view to the public in some way. But there doesn’t appear to be any way for a judge to force prosecutors to bring a case that they want to drop. So Flynn will go free.

Likewise, through pardons or the actions of a compliant and compromised Justice Department, Trump can continue to undo Mueller’s legal legacy. But the President cannot change the underlying facts, nor can he unwrite the Mueller Report, which documents, in unsparing detail, the crimes of his associates, and his own.

And here's a new one: Confessed liar Michael Flynn is innocent.