May 12, 2020 - Politics & Policy

The facts on Michael Flynn, the FBI, and Bill Barr’s bombshell

Trump with Michael Flynn

President Trump with Flynn at a rally in 2016. Photo: David Hume Kennerly/Getty Images

Michael Flynn is out of legal limbo and back in the Trump administration's good graces, a dramatic change from the 2017 days of getting fired for lying to Mike Pence and twice pleading guilty to charges from the Mueller investigation.

Why it matters: Trump's allies view Attorney General Bill Barr's move to withdraw charges against Flynn as the first major step in exposing the Russia investigation as a political hit job. Democrats, most notably Barack Obama, fear Barr is weaponizing the Justice Department ahead of an election.

The story starts in the final days of 2016, with a call between Flynn — then the incoming national security adviser — and Russian Ambassador Sergey Kislyak.

  • Trump’s transition team was concerned that Obama’s sanctions on Russia for its interference in the 2016 election would spiral into a tit-for-tat just as Trump — who had promised warmer ties with Russia — took office.
  • Flynn’s message to Kislyak was that Russia should not escalate the situation. That’s the path President Putin ultimately chose.

Unbeknownst to them, Flynn and other Trump advisers were under investigation for possible coordination between the campaign and the Kremlin.

The lies

In an interview with the FBI on Jan. 24, just days after Trump took office, Flynn denied having made any request to Kislyak on sanctions.

  • He also lied to the FBI about his efforts to influence the outcome of a vote at the UN Security Council, and later lied on a government form about past work to promote Turkey’s interests.
The ouster

On Feb. 13, Flynn was fired after just three weeks in the White House.

  • Then-press secretary Sean Spicer said the decision was “not based on a legal issue, but based on a trust issue,” because Flynn had lied to Pence.
  • That same day, Trump told James Comey he hoped the FBI would drop its investigation into Flynn, according to Comey’s testimony. The investigation continued.
The plea

On Dec. 1, 2017, Flynn pleaded guilty to lying to the FBI. 

  • That deal reportedly took more serious potential charges related to undisclosed foreign lobbying off the table, and shielded Flynn’s son from potential prosecution.
  • As part of the deal, Flynn agreed to cooperate with Mueller’s investigation and accepted “full responsibility" for his actions.
  • Flynn cooperated for months, but prosecutors claim he grew less helpful over time. As a result, they later suggested he could face prison time, which Flynn’s lawyers called a "stunning and vindictive reversal," per NPR.
  • In Jan. 2020, as his sentencing approached, Flynn proclaimed his innocence and asked to withdraw his guilty plea.
The motion to dismiss

On May 7, the Justice Department moved to drop the charges against Flynn — a highly unusual move given Flynn had already pleaded guilty.

  • Lying to the FBI is not a crime, they argue in the filing, unless the statements are “material” — that is, harmful to an investigation. The Mueller report states that Flynn's lies "materially impaired the investigation of Russian election interference."
  • But the department contends that Flynn was not interviewed by the FBI in the context of any “viable counterintelligence investigation,” and thus any lies could not have been material.
  • The department's determinations were based in part on “newly discovered and disclosed information,” according to the filing.
“[T]he Government has concluded that continued prosecution of Mr. Flynn would not serve the interests of justice.”
— DOJ motion to dismiss
The new information

In early Jan. 2017, the FBI determined that its counterintelligence investigation into Flynn — part of the larger probe into the Trump campaign — should be closed.

  • The investigation was not formally closed, though, before the bureau learned of Flynn’s contacts with Kislyak.
  • The bureau saw the Kislyak call as an opportunity to continue investigating Flynn, with Deputy Assistant Director Peter Strzok texting FBI lawyer Lisa Page, “our utter incompetence actually helps us,” because the investigation could continue.
  • There was an internal debate over whether to interview Flynn about the call. The filing quotes the notes of the FBI’s counterintelligence chief as saying: “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
  • Despite those doubts, Comey decided to go ahead with the interview without notifying the White House or DOJ leadership, per the filing.

Flynn voluntarily submitted to the Jan. 24 interview, and acknowledged in advance (based on his long career in intelligence) that the FBI likely knew the contents of his call with Kislyak, per the DOJ filing.

  • Still, he denied making a number of statements to Kislyak that a transcript showed he did, in fact, make.
  • Afterwards, the FBI was divided over whether Flynn had knowingly lied, with Comey himself saying, “It is a close one,” per the filing.

Worth noting: The DOJ case that Flynn may not have intentionally misled the FBI comes despite the fact that Flynn himself admitted in court to having lied.

  • The FBI interview also came after both Pence and Spicer had publicly denied that Flynn discussed sanctions with Kislyak.
  • That prompted concerns that Flynn could have been vulnerable to blackmail from the Kremlin, which was obviously aware that sanctions had been discussed.
  • This posed a potential national security threat that defenders of the FBI say justified the interview and the continuation of the counterintelligence probe.
The pushback

The DOJ filing was signed by Timothy Shea, a longtime Barr ally and the acting U.S. attorney for the District of Columbia, but not by any of the prosecutors who worked on the case against Flynn.

  • Legal experts note that the Justice Department does not argue that Flynn was coerced or had his rights violated — more common grounds on which to drop such charges.
  • Mary McCord, a former DOJ official whose concerns about the Flynn probe are cited more than 25 times in the filing as evidence that Flynn should not have been under investigation, writes in the NYT that her words were “twisted” in service of a “contorted argument” that does not stand up to scrutiny.
  • Senior Democrats, including Obama, have claimed that Barr and Trump are trampling the rule of law.
  • Trump, meanwhile, is pushing the theory that Obama knew in 2017 that the investigation into Flynn was baseless but directed the FBI to carry on anyways. There is no evidence for that claim.

The bottom line: Barr defended his decision in a recent interview with CBS, but acknowledged that it would be debated for some time.

"History is written by the winners, so it largely depends on who’s writing the history.”
— Bill Barr

What to watch: The prosecutor who reviewed the Flynn case is now working with U.S. Attorney John Durham on a sweeping investigation into the origins of the Russia probe.

  • Many Trump allies claim the Durham investigation will ensnare Obama-era intelligence officials like Comey and former CIA director John Brennan.
  • Some Democrats fear, based on Barr's own words, that indictments could drop just in time for November's election.
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