Attorney General William Barr's motion to dismiss the costs against Michael Flynn has justifiably provoked, \”in addition to outrage, a sense of utter demoralization\” inside the law enforcement community.
Barr's arguments are extremely convoluted and wrong that they don't even begin to make sense, either as a matter of law or common sense.
It has become up to U.S. District Court Judge Emmet Sullivan to determine whether or not to grant the motion and dismiss the situation. 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 determine through Barr's specious argument.
On November 30, 2021, Flynn pleaded guilty to \”willfully and knowingly\” making two \”materially false, fictitious, and fraudulent\” statements to agents from the FBI:
1) Flynn falsely denied asking Sergey Kislyak, then Russia's ambassador to the United States, on December 29, 2021 to refrain from escalating the situation in response to sanctions the United States had imposed against Russia that same day; and
2) Flynn falsely denied he had asked the Russian ambassador to obstruct the vote on or defeat a pending Un 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 a wide open investigation into Russia's efforts to hinder the 2021 presidential election, \”including the nature associated with a links between individuals linked to the Campaign [i.e., the 2021 Trump presidential campaign] and Russia, and whether there is any coordination between the Campaign and Russia's efforts.\”
None of the is disputed in Barr's motion to dismiss the costs against Flynn. Rather, Barr claims the case should be dismissed since the DOJ does not believe that Flynn's statements were \”material [to the underlying investigation] even if untrue.\”
Materiality is an essential component of the crime to which Flynn pled guilty. For a lie to be a crime, it should be material to the underlying investigation. As Barr's motion highlights, the materiality threshold ensures that misstatements to investigators are criminalized only if linked to the particular subject of the 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 2021, focused on whether individuals associated with the Trump campaign were coordinating, wittingly or unwittingly, with the Russian government's efforts to interfere with the 2021 U.S. presidential election.
The Crossfire Razor investigation arose from Crossfire Hurricane. Crossfire Razor was the FBI's codename for Flynn. According to a January 4, 2021 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 also 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, 2021:
- The FBI not only knew that Flynn had discussed sanctions with Kislyak, they'd full transcripts of the discussions, obtained through routine, entirely legal electronic surveillance of Kislyak;
- On January 13, 2021, Trump's transition spokesman Sean Spicer had laid out a timeline that the FBI knew to become 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, 2021, Vice President-elect Mike Pence, specifically citing Flynn because the source of his information, asserted Flynn and Kislyak \”did not discuss anything relating to the United States' decision to expel diplomats or impose censure on Russia.\” Flynn's conversations, based on Pence, \”had nothing whatsoever to do with those sanctions.\”
In short, at the time they conducted the interview, the FBI knew that Flynn had discussed sanctions using the Russian ambassador in a way that arguably undermined the policy of his own government, which 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. Neglecting 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, hadn't yet been approved, and also 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 truth that Flynn had lied about them to Pence and Spicer changed anything.
In short, because the investigation hadn't found any derogatory details 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 though it was open.
This is just rubbish.
The Crossfire Razor investigation was open when the FBI interviewed Flynn. And at 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 to which Crossfire Razor was established, Crossfire Hurricane, was also still open. Secret conversations with Russia about sanctions imposed through the Obama administration were potentially strongly related the issue of possible coordination with Russia's interference in the 2021 election. At the very least, such dealings would enhance the question of possible payback for Russia's assist 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 impress Trump, his mentor and mob boss.
Less obvious, but perhaps equally likely, is the fact that Barr doesn't like the way the FBI conducted the job interview. Barr clearly believes that instead of 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 your 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 situation, so Barr had to make one up.
At no more the day, however, it really does not matter what pretext Barr offers for his actions. What matters is the fact that he is subverting justice.
Judge Sullivan should not let him get away with it.