Please read this, the government's own filing in the Flynn case, tonight if you have time, because there surely will be plenty more coming out soon. It was all an unjustified crock, a rationalization pulled out of thin air.
politico.com
If you don't have time, or are otherwise challenged, here are some relevant portions, the Cliff Notes version, if you will:
"...After the interview, the FBI agents expressed uncertainty as to whether Mr. Flynn had lied. See Ex. 4 at 5. FBI agents reported to their leadership that Mr. Flynn exhibited a “very sure demeanor” and “did not give any indicators of deception.” Ex. 13 at 3. Both of the agents “had the impression at the time that Flynn was not lying or did not think he was lying.” Id. When Director Comey was asked, based on his evaluation of the case: “Do you believe that Mr. Flynn Case 1:17-cr-00232-EGS Document 198 Filed 05/07/20 Page 9 of 2010 lied?” Director Comey responded: “I don’t know. I think there is an argument to be made he lied. It is a close one.” Ex. 5 at 9. On November 30, 2017, the Special Counsel’s Office filed a criminal information against Mr. Flynn charging him with a single count of making false statements in violation of 18 U.S.C. § 1001(a)(2). ECF No. 1. Mr. Flynn pleaded guilty to that offense, see ECF Nos. 3-4, but moved to withdraw that guilty plea on January 14, 2020, ECF Nos. 151, 154, 160. On January 29, 2020, Mr. Flynn also filed a “Motion to Dismiss Case for Egregious Government Misconduct and in the Interest of Justice,” ECF No. 162, and supplemented that motion on April 24 and 30, 2020 based on additional disclosures, see ECF Nos. 181, 188-190. Both Mr. Flynn’s motion to withdraw his guilty plea and motion to dismiss the case remain pending before the Court....
...
DISCUSSION Based on an extensive review of this investigation, including newly discovered and disclosed information attached to the defendant’s supplemental pleadings, see ECF Nos. 181, 188-190, the Government has concluded that continued prosecution of Mr. Flynn would not serve the interests of justice. Under the Principles of Federal Prosecution, the Government should not prosecute a defendant “unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.” Justice Manual 9-27.220. “A determination to prosecute represents a policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances. . . .” Justice Manual 9-27.001. The particular circumstances of this case militate in favor of terminating the proceedings: Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation. Because the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt, the Government now moves to dismiss the criminal information under Rule 48(a). Proof of a false statement to federal investigators under Section 1001(a)(2) requires more than a lie. It also requires demonstrating that such a statement was “material” to the underlying investigation. See United States v. Gaudin, 515 U.S. 506, 509 (1995); United States v. Kim, 808 F. Supp. 2d 44, 59 (D.D.C. 2011). Section 1001 prohibits “knowingly and willfully ... mak[ing] any materially false, fictitious, or fraudulent statement or representation” in a “matter within the jurisdiction of the executive ... branch of the Government of the United States.” 18 U.S.C. § 1001(a)(2) (emphasis added). As is well-established, materiality does not equate to mere Case 1:17-cr-00232-EGS Document 198 Filed 05/07/20 Page 12 of 2013 “relevance”; rather, “[t]o be ‘material’ means to have probative weight”—that is, to be “reasonably likely to influence the tribunal in making a determination required to be made.” Weinstock, 231 F.2d at 701 (emphasis added). The materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular “subject of [their] investigation.” Kim, 808 F. Supp. 2d at 59; cf.Kungys v. United States, 485 U.S. 759, 774 (1988) (false date and birthplace statements in immigration application were not “material” as they were not “relevant to his qualifications [for citizenship]”). And it prevents law enforcement from fishing for falsehoods merely to manufacture jurisdiction over any statement—true or false—uttered by a private citizen or public official. In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI. Indeed, the FBI itself had recognized that it lacked sufficient basis to sustain its initial counterintelligence investigation by seeking to close that very investigation without even an interview of Mr. Flynn. See Ex. 1 at 4. Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes, id. at 3. With its counterintelligence investigation no longer justifiably predicated, the communications between Mr. Flynn and Mr. Kislyak—the FBI’s sole basis for resurrecting the investigation on January 4, 2017—did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation. The calls were Case 1:17-cr-00232-EGS Document 198 Filed 05/07/20 Page 13 of 2014 entirely appropriate on their face. Mr. Flynn has never disputed that the calls were made. Indeed, Mr. Flynn, as the former Director of Defense Intelligence Agency, would have readily expected that the FBI had known of the calls—and told FBI Deputy Director McCabe as much. See Ex. 11. Mr. Flynn, as the incumbent National Security Advisor and senior member of the transition team, was reaching out to the Russian ambassador in that capacity. In the words of one senior DOJ official: “It seemed logical . . . that there may be some communications between an incoming administration and their foreign partners.” Ex. 3 at 3. Such calls are not uncommon when incumbent public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts. Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by ... the Russian federation,” much less in a manner that “threat[ened] ... national security.” Ex. 1 at 2, Ex. 2 at 2. They provided no factual basis for positing that Mr. Flynn had violated FARA. Nor did the calls remotely transform Mr. Flynn into a “viable candidate as part of the larger ... umbrella case” into Russian interference in the 2016 presidential election. Ex. 1 at 3. In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a Case 1:17-cr-00232-EGS Document 198 Filed 05/07/20 Page 14 of 2015 justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia. Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime. This is apparent from the FBI’s rush to revive its old investigation rather than open and justify a new one, see Ex. 7 at 1-2, as well as its ongoing inability to espouse a consistent justification for its probe in conversations with DOJ leadership, See Ex. 3 at 5. In fact, Deputy Attorney General Yates thought that the FBI leadership “morphed” between describing the investigation into Mr. Flynn as a “counterintelligence” or a “criminal” investigation. Id. In short, Mr. Flynn’s calls with the Russian ambassador—the only new information to arise since the FBI’s decision to close out his investigation—did not constitute an articulable factual basis to open any counterintelligence investigation or criminal investigation. Mr. Strzok 4 Congress first enacted the Logan Act in 1799 to “guard by law against the interference of individuals with the negotiation of our Executive with the Governments of foreign countries.” Joseph Gales & William Seaton, Annals of the Congress of the United States, 2494 (1851) (quoting 5th Congress, 3d Session); see also Waldron v. British Petro. Co., 231 F. Supp. 72, 89 n.30 (S.D.N.Y. 1964). The Department of Justice does not appear ever to have brought a prosecution under the statute in the Department’s 150-year history, and the Government is aware of only two indictments, in 1803 and 1852, neither of which resulted in a conviction. In the absence of any history of enforcement or any public guidance concerning the scope of its prohibition, the Department does not believe there was a legitimate basis to investigate and prosecute the designated National Security Advisor of the President-Elect under the Logan Act for communicating with a foreign ambassador and seeking to mollify geopolitical tensions in advance of the inauguration of the next President. Case 1:17-cr-00232-EGS Document 198 Filed 05/07/20 Page 15 of 2016 and Ms. Page apparently celebrated the “serendipitous[]” and “amazing” fact of the FBI’s delay in formally closing out the original counterintelligence investigation. Ex. 7 at 1. Having the ability to bootstrap the calls with Mr. Kislyak onto the existing authorization obviated the need for the “7th Floor” of the FBI to predicate further investigative efforts. In doing so, the FBI sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens. Nor did anything about the statements by Vice President Pence or Sean Spicer in mid-January—weeks after the FBI had resolved to resurrect its dormant investigation into Mr. Flynn—provide a separate or distinct basis for an investigation. Had the FBI been deeply concerned about the disparities between what they knew had been said on the calls and the representations of Vice President Pence or Mr. Spicer, it would have sought to speak with them directly, but did not. Whether or not Mr. Flynn had been entirely candid with the future Vice President or Press Secretary did not create a predicate for believing he had committed a crime or was beholden to a foreign power. The frail and shifting justifications for its ongoing probe of Mr. Flynn, as well as the irregular procedure that preceded his interview, suggests that the FBI was eager to interview Mr. Flynn irrespective of any underlying investigation. As is undisputed, the agents breached the common practice of arranging for the interview through the White House Counsel. See Ex. 3 at 5-6; Ex. 4 at 5; Ex. 5 at 6. Deputy Director McCabe effectively discouraged Mr. Flynn from procuring counsel or even notifying the White House Counsel. See Ex. 11. The interviewing agents failed to issue the common Section 1001 admonitions about lying to investigators. See Ex. 3 at 6; Ex. 4 at 5; Ex. 9 at 5-6; see also Ex. 6. Nor did the FBI even notify Acting Attorney General Yates that the interview was happening until the interviewing agents were already en Case 1:17-cr-00232-EGS Document 198 Filed 05/07/20 Page 16 of 2017 route to Mr. Flynn. See Ex. 3 at 5-6; Ex. 4 at 4-5; Ex. 5 at 6. This gambit by the FBI left Yates “flabbergasted” and “dumbfounded.” See Ex. 3 at 6. Additionally, prior to the interview, there were internal FBI discussions about whether to show Mr. Flynn the transcripts of his calls with Mr. Kislyak.5 In light of the fact that the FBI already had these transcripts in its possessions, Mr. Flynn’s answers would have shed no light on whether and what he communicated with Mr. Kislyak.—and those issues were immaterial to the no longer justifiably predicated counterintelligence investigation. Similarly, whether Mr. Flynn did or “did not recall” (ECF No. 1) communications already known by the FBI was assuredly not material. Under these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are “material” to an investigation that—as explained above—seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn. Although it does not matter that the FBI knew the truth and therefore was not deceived by Mr. Flynn’s statements, see United States v. Safavian, 649 F.3d 688, 691-92 (D.C. Cir. 2011), a false statement must still “be capable of influencing an agency function or decision,” United States v. Moore, 612 F.3d 698, 702 (D.C. Cir. 2010) (citations and quotation mark omitted). Even if he told the truth, Mr. Flynn’s statements could not have conceivably “influenced” an investigation that had neither a legitimate counterintelligence nor criminal purpose. See United States v. Mancuso, 485 F.2d 275, 281 (2d Cir. 1973) (“Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation.”); cf. United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (noting that a 5Priestap’s talking points, prepared in advance of a January 24 morning meeting with McCabe reflect this internal debate. Case 1:17-cr-00232-EGS Document 198 Filed 05/07/20 Page 17 of 2018 lie can be material absent an existing investigation so long as it might “influenc[e] the possibility that an investigation might commence.”). Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6And even if they could be material, the Government does not believe it could prove that Mr. Flynn knowingly and willfully made a false statement beyond a reasonable doubt.7 Based on the facts of this case, the Government is not persuaded that it could show that Mr. Flynn committed a false statement under its burden of proof. The FBI agents “had the impression that Flynn was not lying or did not think he was lying.” Ex. 13 at 4. And the statements in question were not by their nature easily falsifiable. In his interview, Mr. Flynn offered either equivocal (“I don’t know”) or indirect responses, or claimed to not remember the matter in question. See United States v. Ring, 811 F. Supp. 2d 359, 384 (D.D.C. 2011) (holding that “faulty memory” is not enough to establish “willful” lie absent proof the defendant indeed remembered the matter in 6 The statements by Mr. Flynn also were not material to the umbrella investigation of Crossfire Hurricane, which focused on the Trump campaign and its possible coordination with Russian officials to interfere with the 2016 presidential election back prior to November 2016. See Ex. 1 at 3; Ex. 2 at 1-2. Mr. Flynn had never been identified by that investigation and had been deemed “no longer” a viable candidate for it. Most importantly, his interview had nothing to do with this subject matter and nothing in FBI materials suggest any relationship between the interview and the umbrella investigation. Rather, throughout the period before the interview, the FBI consistently justified the interview of Flynn based on its no longer justifiably predicated counterintelligence investigation of him alone. 7 The Government appreciates that the Court previously deemed Mr. Flynn’s statements sufficiently “material” to the investigation. United States v. Flynn, 411 F. Supp. 3d 15, 41-42 (D.D.C. 2019). It did so, however, based on the Government’s prior understanding of the nature of the investigation, before new disclosures crystallized the lack of a legitimate investigative basis for the interview of Mr. Flynn, and in the context of a decision on multiple defense Brady motions independent of the Government’s assessment of its burden of proof beyond a reasonable doubt. Case 1:17-cr-00232-EGS Document 198 Filed 05/07/20 Page 18 of 2019 question). Combining the vague substance of the answers, the FBI’s own preliminary estimation of Mr. Flynn’s truthfulness, the inconsistent FBI records as to the actual questions and statements made, and Director Comey’s own sentiment that the case was a “close one,” Ex. 5 at 9, the evidentiary problems that have emerged create reasonable doubt as to whether Mr. Flynn knowingly and willingly lied to investigators during the interview.
..."
###
You should look at the exhibits yourself. |
