Death by a Thousand Cuts

By: James Trusty

When legal scholars look back at the failed Flynn prosecution, they will not be able to pin the dismissal on a single deficiency or legal principle, but if they are fair they will recognize a small case that was plagued with innumerable flaws.

The DOJ Motion to Dismiss, filed in the rarified air of a case where the guilty plea already took place, spends a fair amount of time discussing the crime’s legal element of “materiality.”  For a false statement to be deemed material, it has to have the potential to negatively affect a federal investigation. The Motion discusses the fact that the FBI agents actually knew the answers to their questions, and how the Flynn investigation should have effectively ended before the ambush that seemed to have netted General Flynn. Materiality, however, is typically a pretty low bar to clear for the government—the case law has found false statements to be material even if corrected by the suspect in short order, and even when the investigators knew full well that the statement was completely false.

The Motion also acknowledges the DOJ’s longstanding practice to establish a “willful” violation by advising the interviewee that if they lie to federal agents it is a federal crime.  In Flynn’s case, however, the agents specifically decided against giving that admonition.  Yes, that makes “willfulness” considerably harder to establish, but it is also the tip of the iceberg of the FBI leadership’s outrageous approach in this case.

The Motion makes it abundantly clear that former FBI Director Comey was politicized, uncontrollable, and horrifyingly self-righteous.  The case against Flynn was supposed to be administratively closed, but Agent Strzok jammed his foot in the door, keeping it open despite “no derogatory evidence” found against Flynn. Meanwhile, Acting Attorney General Sally Yates was pushing Comey to provide a defensive briefing on this matter to the incoming administration, and Comey simply stiff-armed her.  Keep in mind Mr. Comey once occupied the Deputy Attorney General position, and he knew full well that FBI leadership answers to DOJ brass. Comey literally put off returning her call until he had sent the unannounced agents (including hyper-political Mr. Strzok) to Flynn’s office.  The Motion even cites Comey’s televised interview, where he smugly giggled about how he “wouldn’t have gotten away with it [ambush interview]” if the incoming administration was more alert to his potential for misconduct. Then the interview included a conscious decision to avoid telling Flynn about the potential prosecution for lying, and agents who knew the answers, held the transcripts, and, well, hid the ball from their trusting target.

What has followed, in terms of discovery motions and a motion to withdraw the guilty plea, has been an internal scrub of this case’s process, and the provision of notes and FBI 302’s (reports) that show an attitude of “heads we win, tails you lose” on behalf of this politicized group of FBI operatives, led by Comey. The political class will likely opine that Attorney General Barr is simply doing President Trump’s bidding.  Although if the government decided instead to concede Flynn’s motion to withdraw from the guilty plea, that could have led to the incredible spectacle of an attorney cross examining Peter Strzok.  Sign me up. And was President Trump so afraid to use his pardon power that he needed the Attorney General to do this?  It does not seem plausible to me.

If you look at it fairly, there is something quite positive about the DOJ’s decision – it reaffirms the principle that prosecutorial discretion can still be used to get to the right result.  Prosecutors are supposed to start off their assessment of a case with a judicial attitude – did crimes occur? Who committed them?  The very role of prosecutor is a check on the cops, who do not always get it right. Whether they decide to close out an investigation without arrests, or even to dismiss the case way downstream, such as after a guilty plea, if it’s the right thing to do, it’s the right thing to do.

One thing that could prove pretty interesting in the short term–the Motion to Dismiss still has to be ruled upon by Judge Sullivan.  He will almost certainly grant the motion, as his discretion is quite limited at this juncture. But Judge Sullivan may have an awful lot to say about this case, the discovery process, and notions of fair play. He did when he dismissed the case against Sen. Ted Stevens, so stay tuned.