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DOJ Motion to Drop Flynn Case is Troubling

Nothing will be cleaned up, nothing will be resolved. It will just be more of the same crooked, fact-challenged tweet-rich garbage we've seen for four years.

I am no lawyer here, let’s get that straight. And all the president’s men and women are celebrating Michael Flynn’s walk-off home run against the Obama DOJ and Mueller’s shock troops. From a purely political viewpoint, this is a win, and a repudiation of some of the tactics used to roll up the Trump administration like the FBI used to roll up crime syndicates.

After revelations that the Flynn prosecution was loaded with all kinds of problems, Attorney General William Barr’s Justice Department threw up its hands and dropped the case. To be clear here, one possible reason they did so was the reason many government decisions are taken–everyone wants to CYA.

There was likely no defect with the evidence against Flynn on the most serious charges–failing to register as a foreign agent. In fact, the DOJ filing to drop the case didn’t contend that the case itself was flawed, it contended that the case never should have been brought. Here’s the filing.

The filing contends “the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words,  prepared to close because it had yielded an ‘absence of any derogatory information.'”

Basically, they are claiming that, despite there being a valid case regarding Flynn’s extensive relations with Turkey, and his failure to comply with the Foreign Agent Registration Act, the fishing expedition the FBI used to obtain the guilty plea was not enough to justify the charges.

They based this determination in large part on the notes and private texts of then-FBI Assistant Director Peter Strzok, and his communications with Lisa Page.

On January 4, 2017, FBI Deputy Assistant Director Peter Strzok learned that “RAZOR’s closure” had not been timely executed, and the counterintelligence investigation into Mr. Flynn was, unexpectedly, still formally open. Ex. 7 at 1-2. Mr. Strzok immediately relayed the “serendipitously good” news to Lisa Page, the Special Counsel to FBI Deputy Director Andrew McCabe, remarking that “our utter incompetence actually helps us.” 

Like I said, I am no lawyer, but the next time a criminal defense attorney in federal court tries to use this example to force the government to reveal its internal notes and communications in a decision whether to interview or prosecute a defendant, I expect the government to vigorously oppose it. Discovery is a process to uncover evidence in possession of the prosecution, not their strategy for pursuing a case.

Based on chatter I’ve heard from some attorneys, lawyers will be playing kickball with this filing for a long time.

There may be a couple of reasons why Barr’s DOJ went with this troublesome walk through the halls of right-wing conspiracy, versus some other reason for dropping the case, when Flynn’s motion to withdraw his guilty plea had not even been ruled on by the judge.

It could have been that President Trump simply wants Flynn to be free, without having to pardon him, so Flynn can rejoin Trump’s administration. Not only is this a mistake, because Flynn should not be trusted in government again, but it’s the act of a crooked government.

Let’s concede for a moment that the DOJ leaned way too far out over its skis trying to roll up Trump’s administration before Trump even took office. They got Flynn to plead guilty, in exchange for his cooperation. The Mueller investigation found lots of indiscretions, politically motivated pressure, in Trump’s White House, but no collusion. If collision had been found, would the government be dropping the case against Flynn? I expect not.

Flynn lied to the FBI, and yes, his lie was not relevant to the real quarry of the FBI’s investigation. But the lie yielded a charge to which Flynn could plead guilty, versus facing charges of getting a half million dollars from the Turkish government to influence U.S. policy on returning a refugee to face Erdogan’s kangaroo justice and his thugs (they even considered kidnapping). The fact that one investigation led to an unrelated criminal act that was then referred to prosecution is not a reason to drop the charges.

If a police officer asked to enter your home to search for drugs, you agreed, and he found none, but tripped over the dead body in your basement, do you think they wouldn’t prosecute you for murder? An extreme example, but in this case, the FBI went fishing for the most razor-thin case possible: a Logan Act violation (which in 201 years has never been successfully prosecuted), and in the interview Flynn lied about his contacts with the Russians.

Flynn then lied about it to the White House, including Vice President Pence, which is why he got fired by the president. What else has Flynn lied about regarding his relationships with foreign governments? Why would the president trust Flynn ever again? Hiring a man who was fired for lying sends a message that “liars are valued here.” Flynn should not be brought back to government service.

Another possible reason the DOJ punted this way is because the truth of exactly how cocked-up the Crossfire Razor and Crossfire Hurricane investigation was, and how those rotted veins reached deep into the FBI, the DOJ, and the White House, is more damaging to the government than having lawyers play kickball with a poorly constructed briefing. This goes back to CYA. Nobody wants their career destroyed, and even AG Barr, who is as loyal a guard dog to Trump as Eric Holder and Loretta Lynch were to Obama, won’t sink the department he heads.

This doesn’t mean the “Deep State” was fully out to “get” Trump, the way the president and his Twitter gorillas portray it. For the people who landed in federal prison who were associated with the Trump campaign, there was a “there” there. Paul Manafort was crooked. Michael Cohen was crooked. They were also helpful to Robert Mueller’s investigation. Flynn fell into this category, before there was a Mueller investigation.

Now, you can make the argument that if Crossfire Razor had not yielded a prosecution against Flynn, and Strzok hadn’t gone fishing in the first place, there may not have been a Mueller investigation. That is truly defensible, but it has little relevance to the fact that Flynn pled guilty.

Now that some of the scummy details are out on the table, the DOJ may not want to dig down to the bottom of this rabbit hole. They’d rather just blame Strzok and Page, along with Sally Yates, and make this whole thing go away. That leave Trump free to claim the “Deep State” conspiracy without having to show his work.

Nothing will be cleaned up, nothing will be resolved. It will just be more of the same crooked, fact-challenged tweet-rich garbage we’ve seen for four years.

One day, these heaps of buried trash are going to find their way to the surface, and boy, will they stink. To me, that’s very troublesome, especially one day when a Democrat is back in the White House. If we thought Obama was bold in his weaponizing of our justice system, imagine what the next person not a Republican will do after Trump has rewarded the crooked.


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