‘Never seen anything like this’: Experts question Flynn case surprise

Washington: The US Justice Department's decision to drop the criminal case against Michael Flynn, President Donald Trump's former national security adviser, even though he had twice pleaded guilty to lying to investigators, is extraordinary and has no obvious precedent, criminal law specialists say.

"I've been practising for more time than I care to admit and I've never seen anything like this," said Julie O'Sullivan, a former federal prosecutor who now teaches criminal law at Georgetown University.

The move is the latest in a series that the department, under Attorney-General William Barr, has taken to undermine and dismantle the work of the investigators and prosecutors who scrutinised Russia's 2016 election interference operation and its links to people associated with the Trump campaign.

Michael Flynn, former US national security adviser.Credit: Bloomberg

The case against Flynn, for lying to the FBI about his conversations with the Russian ambassador, was brought by the office of the former special counsel, Robert Mueller. It had become a political cause for Trump and his supporters, and the President had signalled that he was considering a pardon once Flynn was sentenced. But Barr instead abruptly short-circuited the case.

On Thursday, Timothy Shea, the interim US attorney in the District of Columbia, told the judge overseeing the case, Emmet Sullivan, that prosecutors were withdrawing the case. They were doing so, he said, because the department could not prove to a jury that Flynn's admitted lies to the FBI about his conversations with the ambassador were "material" ones.

The motion by the US government to dismiss the criminal case against Michael Flynn.Credit: AP

The move essentially erases Flynn's guilty pleas. Because he was never sentenced and the government is unwilling to pursue the matter further, the prosecution is virtually certain to end, although the judge must still decide whether to grant the department's request to dismiss it "with prejudice", meaning it could not be refiled in the future.

A range of former prosecutors struggled to point to any previous instance in which the department had abandoned its own case after obtaining a guilty plea. They portrayed the justification Shea pointed to — that it would be difficult to prove to a jury beyond a reasonable doubt that the lies were material — as dubious.

"A pardon would have been a lot more honest," said Samuel Buell, a former federal prosecutor who now teaches criminal law at Duke University.

The law regarding what counts as "material" is extremely forgiving to the government, Buell added. The idea is that law enforcement is permitted to pursue possible theories of criminality and to interview people without having firmly established that there was a crime first.

James McGovern, a defence lawyer at Hogan Lovells and a former federal prosecutor, said juries rarely bought a defendant's argument that a lie did not involve a material fact.

"If you are arguing 'materiality,' you usually lose, because there is a tacit admission that what you said was untrue, so you lose the jury," he said.

Michael Flynn speaks about the then presidential candidate Donald Trump at a campaign event in Virginia in 2016. Credit: AP

No career prosecutors signed the motion. Shea is a former close aide to Barr. In January, Barr installed him as the top prosecutor in the district that encompasses the nation's capital after manoeuvring out the Senate-confirmed former top prosecutor in that office, Jessie Liu.

Soon after, in an extraordinary move, four prosecutors in the office abruptly quit the case against Trump's longtime friend Roger Stone. They did so after senior department officials intervened to recommend a more lenient prison term than standard sentencing guidelines called for in the crimes Stone was convicted of committing — including witness intimidation and perjury — to conceal Trump campaign interactions with WikiLeaks.

It soon emerged that Barr had also appointed an outside prosecutor, Jeff Jensen, the US attorney in St Louis, to review the Flynn case files. The department then began turning over FBI documents showing internal deliberations about questioning Flynn, like what warnings to give — even though such files are usually not provided to the defence.

Flynn's defence team has mined such files for ammunition to portray the FBI as running amok in its decision to question Flynn in the first place. The questioning focused on his conversations during the transition after the 2016 election with the Russian ambassador about the Obama administration's imposition of sanctions on Russia for its interference in the American election.

The FBI had already concluded that there was no evidence that Flynn, a former Trump campaign adviser, had personally conspired with Russia about the election, and it had decided to close out the counter-intelligence investigation into him. Then questions arose about whether and why Flynn had lied to administration colleagues like Vice-President Mike Pence about his conversations with the ambassador.

Because the counter-intelligence investigation was still open, the bureau used it as a basis to question Flynn about the conversations and decided not to warn him at its onset that it would be a crime to lie. Notes from Bill Priestap, then the head of the FBI's counter-intelligence division, show that he wrote at one point about the planned interview: "What's our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?"

Barr has also appointed another outside prosecutor, John Durham, the US attorney in Connecticut, to reinvestigate the Russia investigators even though the department's independent inspector general was already scrutinising them.

And his department has intervened in a range of other ways, from seeking more comfortable prison accommodations last year for Paul Manafort, Trump's former campaign chairman, to abruptly dropping charges in March against two Russian shell companies that were about to go to trial for financing schemes to interfere in the 2016 election using social media.

Barr has let it be known that he does not think the FBI ever had an adequate legal basis to open its Russia investigation in the first place, contrary to the judgment of the Justice Department's inspector-general.

In an interview on CBS News, Barr defended the dropping of the charges against Flynn on the grounds that the FBI "did not have a basis for a counterintelligence investigation against Flynn at that stage."

The New York Times