There’s been a great deal of discussion over the past couple of weeks about whether Judge Emmet Sullivan should, must, or cannot grant the Department of Justice’s recent motion to dismiss the single-count criminal information against Michael Flynn.  Flynn pleaded guilty—twice—for knowingly and willfully making materially false statements to the FBI in a January 24, 2017 interview, in violation of 18 U.S.C. § 1001(a)(2).  All that remains of the case before judgment is entered against Flynn is for the judge to impose a sentence.

Judge Sullivan is scheduled to hear argument on DOJ’s motion to dismiss on July 16.  In the meantime, Flynn himself has filed a writ of mandamus in the U.S. Court of Appeals for the D.C. Circuit, asking that court to order Judge Sullivan to “immediately” grant DOJ’s motion to dismiss.  The D.C. Circuit panel (Judges Henderson, Wilkins and Rao) has ordered Judge Sullivan himself to file a response addressing that request by next Monday, June 1.  [UPDATE:  Here is Judge Sullivan’s brief.]

At the end of this article, I’ll offer a few thoughts about the merits of DOJ’s submission and about the options Judge Sullivan has for dealing with it.  But that’s not the primary reason I’m writing.  Whatever the right answer might be as to whether Judge Sullivan should or shouldn’t grant the motion to dismiss the charge against Flynn, the principal purpose of this article is to stress the relative insignificance of that question in the grander scheme of things.

Flynn’s lies to the FBI in his January 24, 2017 interview were indefensible.  In the course of the Flynn “affair,” however, several officials—including but hardly limited to Flynn himself—have done far more disturbing and damaging things.  Many other actors, by contrast, have acted appropriately and in the national interest.  Unfortunately, just as with the public’s anticipation of and reaction to the Mueller investigation, the inordinate focus on whether a particular individual committed one or another offense under the U.S. criminal code is diverting attention from where it ought to be, on much more significant matters of constitutional governance.

Most importantly, as I’ll explain, what’s most alarming and troubling about the DOJ brief itself is not that it asks the court for leave to dismiss the charge against Flynn, but that it depends upon the rather shocking view of the Attorney General and the Acting U.S. Attorney for the District of Columbia that Flynn’s underlying conduct in 2016 and 2017 was unobjectionable and that therefore there wasn’t a “legitimate” basis for the FBI to be investigating Flynn’s secret communications with the Russian Ambassador at all, even though Russia had just completed an elaborate effort to manipulate the American electoral process in order to help elect Donald Trump.

What follows is an effort to identify and evaluate many of the most important aspects of the Flynn affair, roughly in chronological order from the Summer of 2016 to today.

  1. Flynn’s Unsuitability to be National Security Advisor

Michael Flynn first came to the attention of many Americans in July 2016 when he encouraged and led the appalling “Lock Her Up” chants at the Republican National Convention.  Unfortunately, that was hardly out of character for Flynn in recent years.  He had, for instance, retweeted accusations that Hillary Clinton was involved with child sex trafficking and that Barack Obama was a “jihadi” who had laundered money for terrorists.  He accused the states of Florida and Texas of enacting “sharia law.”  It was widely reported that as Director of the Defense Intelligence Agency in the Obama Administration, Flynn was prone to adopting conspiratorial theories that were unsupported by the intelligence and refused to brook dissent.  He was paid to work on behalf of a project to promote the prospects of Russian companies to build a series of nuclear reactors in the Middle East, and allegedly failed to disclose required details of those arrangements in security clearance applications.  Right up to the presidential transition period in 2016-2017, Flynn was secretly working on a project directed by the Turkish government that included efforts to discredit a dissident Turkish cleric living in the U.S. (Fethullah Gulen).  On Election Day itself, Flynn published a column criticizing Gulen and praising Turkey, without disclosing that Turkey was behind the effort (something that would later lead to his violations of the Foreign Agents Registration Act, as noted in Point 16, below).  (Paul Waldman has collected many of these and other Flynn issues here.  Nicholas Schmidle offered a very thorough profile in the New Yorker, just after Flynn was fired as National Security Advisor, that describes both his considerable military accomplishments and skills and the ways in which his “easygoing pragmatism” had in recent years given way to some “very hard-edged ideas,” in Daniel Benjamin’s words.)

President Obama’s advice to incoming President Trump was therefore well-taken:  It was a bad idea for Trump to appoint Flynn to be National Security Advisor in the first place.  Trump himself soon came to the same conclusion, prompted by warnings from Acting Attorney General Sally Yates, and then by White House Counsel Don McGahn (see Point 12, below):  Flynn lasted only 24 days in the job.

  1. The FBI’s Decision to Open an Investigation on Flynn (“Crossfire Razor”) in August 2016—and the Proposal to Close it Early in 2017

As part of the larger “Crossfire Hurricane” investigation into Russia’s efforts to interfere in the 2016 presidential campaign and possible involvement by persons in the Trump campaign (see pages 50-59 of Inspector General Horowitz’s Report for a detailed account of the basis for “Crossfire Hurricane”), the FBI opened a specific counterintelligence investigation concerning Flynn (“Crossfire Razor”) on August 16, 2016.  The Flynn investigation was based upon “an articulable factual basis that [he] 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.”  That, in turn, was predicated upon an assessment of “reliable” lead information, including that Flynn had been a foreign policy adviser to Trump since February 2016; that he “had ties to various state-affiliated entities of the Russian Federation”; that he traveled to Russia in December 2015; and that he had an active TS/SCI security clearance.

There was nothing suspect or unreasonable about opening this counterintelligence investigation of Flynn.  And as the DOJ Inspector General later concluded, the FBI’s “predication” to open that investigation was more than sufficient to satisfy the modest threshold prescribed by DOJ and FBI policies.

A draft memorandum dated January 4, 2017, apparently prepared for approval by FBI agent Joe Pientka, would have closed the Flynn investigation because it “did not yield any information on which to predicate further investigative efforts.”  The memo added that the investigation would be subject to possible reopening if “new information” came to light.

Assuming this reflected a decision, or at least a recommendation, to close the Flynn investigation before the Bureau discovered his calls with Russian Ambassador Kislyak, there’s no contested issue about the reasonableness of this proposed action, either.

  1. The Kislyak Calls

By the first week of 2017, the FBI had discovered the content of calls Flynn had made with Russian Ambassador Sergey Kislyak in the final ten days of 2016, which are described in detail at pages 167-173 of Volume I of the Mueller Report and at pages 24-26 of Volume II.  [UPDATE:  One day after I published this article, the government made most of the transcripts publicly available.  They speak for themselves, but my thoughts on their importance–and the importance of how the President and Attorney General are characterizing them–appear in this section and in the final four paragraphs of this article.]

The first calls occurred on December 22 and 23, 2016.  Egypt had submitted a resolution to the United Nations Security Council calling on Israel to cease settlement activities in Palestinian territory.  There were press reports that the Obama Administration had decided the United States would abstain on the vote.  Led by Jared Kushner, multiple members of the Trump transition team, including President-Elect Trump himself, tried to rally support among foreign government officials to delay the vote, or to have their nations vote to defeat the resolution (a course of action that the Obama Administration itself did not undertake and presumably wouldn’t have approved).  Under instructions from Kushner, Flynn contacted Kislyak on December 22 to request that Russia vote against or delay the resolution.  At that point, Egypt postponed the vote, but the next day, Malaysia, New Zealand, Senegal, and Venezuela resubmitted the resolution, and Flynn again lobbied Kislyak to have Russia intervene to stymie the resolution.  Russia did not do so, and on the 23d the Security Council adopted Resolution 2334 by a vote of 14-0 (including Russia), with the U.S. alone abstaining.

The second series of calls between Flynn and Kislyak commenced less than one week later, on December 29, just hours after the United States had imposed sanctions on nine Russian individuals and entities, expelled 35 Russian government officials, and closed two Russian government-owned compounds in the United States, all in response to Russia’s interference in the 2016 presidential election.  President-Elect Trump expressed a lack of concern about Russia’s election interference.  When asked about the sanctions, he responded:  “I think we ought to get on with our lives.”

After discussing the matter with members of the transition team, including Michael Ledeen and K.T. McFarland, Flynn called Kislyak to urge Russia not to escalate the situation in the manner the U.S. expected it to do.  Flynn at the very least implied to Kislyak that the Trump Administration would be more conciliatory to Russia, notwithstanding its election interference, and he may even have suggested that Trump might alleviate the sanctions Obama had imposed that very morning.  [UPDATE:  Flynn implored Kislyak to convey to Moscow that it should “not allow this [Obama] administration to box us in right now.”  Flynn also said to Kislyak, “Let’s keep this at a level that uh is, is even-keeled, okay? ls even-keeled. And then what we can do is, when we come in, we can then have a better conversation about where … we’re gonna go … regarding our relationship.”  He also criticized the Obama administration’s “position on the Middle East,” saying that it “doesn’t do anybody any good.”] Unlike with respect to the first call (about the UNSC resolution), in this case Russia did as Flynn asked:  Vladimir Putin decided not to escalate the conflict, presumably assured that Trump would ease up on the U.S.’s objections to Russia’s election interference.  [On December 31, Kislyak conveyed the news to Flynn, adding that “We are hoping within two weeks we will be able to start working in [a] more constructive way.”]

To hear DOJ now tell it, those late-December calls were of no moment, and shouldn’t have affected the FBI’s decision to close the Flynn investigation.  The most alarming and revealing passage in the DOJ motion to dismiss the charge against Flynn is this one—in particular the bolded sentence:

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 investigation or opening a new criminal investigation.  The calls were entirely appropriate on their face. . . .  Mr. Flynn, as the incumbent [sic] 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 [Mary McCord]:  “It seemed logical . . . that there may be some communications between an incoming administration and their foreign partners.”   Such calls are not uncommon when incumbent [sic] public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts.

This is absurd—akin to Trump’s assertions in 2019 that his communications with the Ukraine, urging officials of that nation to announce an investigation of Hunter and Joe Biden, were “pitch perfect.”  It’s shocking the Executive branch would write such a thing in a brief to a court.  The Flynn/Kislyak calls were the furthest thing from “appropriate.”

For one thing, the apparent substance of the call on December 29 was, at a minimum, deeply disturbing.  Flynn apparently was signaling to Kislyak that the Trump Administration would be more conciliatory to Russia, notwithstanding its election interference, than the Obama Administration had been—up to and including an implication that Trump might well alleviate the sanctions Obama had imposed that very morning.  (Putin presumably wouldn’t have done if he didn’t have reason to believe the Trump Administration would be more conciliatory with respect to the election interference matter.)

The question of why Trump, Flynn, et al., were—and continue to be—so in thrall to Vladimir Putin, or at the very least indifferent to Russia’s threat to our electoral system, continues to be perhaps the most consequential question of the Trump Presidency.

Even apart from the merits of what Flynn said, however—that is to say, even if you happen to agree with Trump’s views on Russian sanctions and/or on the U.N. vote regarding Israeli settlements—it’s inappropriate for a member of a presidential transition team to communicate with foreign officials secretly about current U.S. national security or foreign policy matters (i.e., without the knowledge of the State Department or some other process for informing the current Administration), and far worse still to do so in an effort to undermine the national security or foreign policy objectives of the United States as determined by the President then in office.

According to the New York Times, the Obama Administration had made a “pointed request” to the Trump transition team to avoid sending conflicting signals to foreign officials before the inauguration and to include State Department personnel when contacting such officials.  That’s fairly standard-issue stuff, as reflected in the Partnership for Public Service’s widely consulted Presidential Transition Guide.  It was wrong for Flynn to disregard the administration’s request and the longstanding norm—and particularly to do so in the way he did here.  Contrary to the two Freudian slips in the DOJ brief, Flynn was not the “incumbent National Security Advisor” at the time—Susan Rice was.  DOJ is right that incoming officers commonly communicate during the presidential transition with their future foreign partners so that they can “begin and build relationships with soon-to-be counterparts.”  Friendly congratulatory calls and innocuous, generic “I look forward to working together” communications are commonplace.  It’s another thing entirely, however, to signal a subversion of the sitting President’s foreign policy objectives—let alone to do so secretly, so that the U.S. government is unaware of what’s being said and done.  (To be sure, the government in this case eventually discovered what Flynn and Kislyak discussed, but not for several days, during which time the State Department and other agencies were in the dark about what Putin was up to and why.)

Moreover, this wasn’t just any foreign counterpart or an ordinary transition context—Flynn was speaking to a representative of the nation that had just hacked the American election campaign in an effort to have Trump elected, and doing so mere hours after the President of the United States had responded decisively.  As Director of National Intelligence James Clapper saw it, Flynn had “essentially neuter[ed]” the just-imposed sanctions.*

Indeed, the wrongfulness of Flynn’s actions was so manifest that when word of the conversation with Kislyak became public (see Point 8, below), it infuriated President-Elect Trump, who instructed Reince Priebus to direct Flynn that he had to “kill the story.”  Flynn then told K.T. McFarland that “I want to kill the story,” and asked her to call the Washington Post and deny that Flynn had discussed sanctions with Kislyak.  As the Mueller Report recounts, “McFarland made the call as Flynn had requested although she knew she was providing false information, and the Washington Post updated the column to reflect that a ‘Trump official’ had denied that Flynn and Kislyak discussed sanctions.”  As noted in Point 7, below, Flynn himself made the same denials to Priebus, Vice President-Elect Mike Pence, and incoming press secretary Sean Spicer.  (Flynn also omitted the discussion of sanctions from his written documentation of the December 29 Kislyak call, later acknowledging to Robert Mueller’s Office that he did so “because it could be perceived as getting in the way of the Obama Administration’s foreign policy.”  (The quotation is the Mueller Report’s characterization of what Flynn told the Mueller investigators.))

If the December 29 calls had truly been “entirely appropriate,” as DOJ now insists, surely Trump wouldn’t have been so angered, Flynn wouldn’t have dissembled to all of these people, including even the incoming Vice President, and incoming members of the Trump White House wouldn’t have been so adamant about denying the allegation that the U.S. sanctions were discussed.

[UPDATE:  The reactions of many Trump/Barr/Flynn defenders to the transcripts of the December 29 call–in effect, that Barr’s right that it’s a big nothingburger at worst, if not “laudable” (see below)–prompts me to add the following about the source of the huge disconnect respecting how various observers have viewed the substance of the Flynn/Kislyak call:

We know now that Trump (at best) didn’t care about Russia’s election interference—after all, he’s said so repeatedly for three-plus years.  And if that’s your baseline understanding–that of course Trump wasn’t troubled by the cyber-operations and therefore would naturally have been trying to stymie the effects of Obama’s sanctions–then your reaction to the Kislyak call is likely to be one of nonchalance, e.g., “That’s Trump:  What’d you expect?”

But consider how this call looked to intelligence and diplomatic officials on December 29, 2016, just after they had learned of Russia’s interference in the election and just hours after President Obama had imposed dramatic sanctions on Russia in response.  It was unlike anything they’d ever seen before and was deeply alarming.  As David Corn writes:

At no point does Flynn castigate Kislyak for Russia’s intervention in the 2016 election.  He does not confront the Russian ambassador for Putin’s covert operation to subvert American democracy.  He does not tell Kislyak that Moscow will have to pay a price for hacking the Democrats and using the stolen information to influence the election for Trump’s benefit.  Flynn, a former head of the Defense Intelligence Agency, does not warn Kislyak against any further Russian information warfare targeting the United States.  As the Obama administration was trying to impose a punishment on Putin for that attack, Flynn, on behalf of the Trump gang, was sending an utterly different message:  We don’t care about that.

Think about this perverse set of interactions: the incoming national security adviser was essentially telling a foreign adversary that the new president wasn’t concerned about an attack on the United States and, moreover, indicating that Trump didn’t intend to do anything about it.  In fact, Flynn was signaling to Putin that once Trump took office, Trump wouldn’t be pursuing the matter and, instead, would be reaching out to Russia as a partner.  (A few months later, Trump, in the Oval Office, would tell Kislyak that directly.) . . .

He was dealing with the Russians as if there had been no attack.

(Mark Mazzetti’s analysis of the Kislyak call is also must-reading.)

The idea that the incoming President of the United States and/or his National Security Advisor would be (at best) so indifferent to Russia’s interference in the 2016 election—in secret, with the Russian Ambassador—might be old news now, but back then it was virtually unthinkable.  That’s why Flynn’s calls were so shocking, and easily justified DOJ’s and the FBI’s concerns and the latter’s decision not to close its Flynn investigation.  Quite simply, it was imperative to figure out why an incoming National Security Advisor would do such a thing and whether, in particular, he or the President were in any way compromised by Russia.  (And then the concerns only became more acute when, several days later, incoming officials, including Vice-President-Elect Pence, began to offer false public denials that Flynn and Kislyak had discussed sanctions—something they presumably wouldn’t have done if those conversations were as benign and unexceptional as the Attorney General would now have it.)

If, like Trump and Barr, you think that the Russian interference was no big deal—business as usual—and that the real threat to the Republic was the government’s response to Russia’s efforts and to the Trump campaign’s pervasive interactions with, and encouragement of, those efforts, then of course the Kislyak calls will seem appropriate or laudable.  But if, on the other hand, you agree with the uniform conclusions of, e.g., the Intelligence Community, the Mueller Report, and the Senate Intelligence Committee, that Russia’s involvement in our election was a profound threat, then the Kislyak calls will look rather different.]

  1. Flynn’s Coordination With the Trump Transition Team, and the Role of President-Elect Trump Himself

As the Mueller investigation later discovered, Flynn wasn’t acting alone in making either set of phone calls with Kislyak in December 2016.  (What follows is derived primarily from the Mueller Report, but Flynn himself also attested to the gist of it on November 30, 2017.)

As noted above, the December 22/23 calls to Kislyak about the UNSC Resolution were coordinated with the President-Elect and directed by Jared Kushner.

Flynn also carefully coordinated with the transition team his December 29 calls about Obama’s sanctions on Russia.  As soon as the press reported the sanctions, the highest-level members of the team staying at the Mara-Lago club in Palm Beach, including McFarland, Steve Bannon, and Priebus, began discussing how they might respond, including possibly by having Flynn discuss the sanctions in a call he was planning to have with Kislyak that day.  Flynn, who was vacationing in the Dominican Republic, held off on communicating with Kislyak until he had spoken with the team at Mar-a-Lago, which he did:  He had extensive discussions with McFarland and Michael Ledeen about what he should say to Kislyak.

Just after sending an email to transition team members about the sanctions in which she informed the group that Flynn would be talking to Kislyak that evening, McFarland briefed President-Elect Trump about the issue, in the presence of Bannon, Priebus, Sean Spicer, and other Transition Team members.  McFarland later recalled to the Mueller investigators that at the end of the meeting someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening.  Although it’s therefore almost certain Trump knew at least roughly what Flynn planned to say to Kislyak, the Mueller investigation did not find any evidence that Trump directed Flynn to say anything about sanctions.  (Mueller asked Trump specifically about these incidents (see Questions V(b)-(e)), but in his written responses the President … simply ignored those questions, as though they hadn’t even been asked.)  Several weeks later, then-President Trump said in a press conference that although he didn’t direct Flynn to discuss sanctions with Kislyak, “it certainly would have been okay with me if he did.  I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.”  Trump, and the rest of his team, did not appreciate how inappropriate this course of action was—a view now alarmingly blessed by the Department of Justice.

After his discussion with Kislyak, Flynn reported to McFarland the substance of his call, including the discussion of sanctions, and McFarland summarized to Flynn her recent briefing with President-Elect Trump.  After Russia failed to take the expected steps to escalate, Flynn told McFarland that he believed his phone call had made a difference, and McFarland congratulated him.  Flynn also discussed the sanctions with Bannon the next day and Bannon appeared to know about Flynn’s conversation with Kislyak.

  1. The FBI’s Decision to Keep its Counterintelligence Investigation of Flynn Open in Light of the Kislyak Calls—and Flynn’s Subsequent Lies to Pence and Others About the December 29 Call

As noted in Point 2, above, at the beginning of January the FBI apparently was planning to wrap up its counterintelligence investigation of Flynn (“Crossfire Razor”).  It decided not to do so when it learned of the Kislyak calls.

A linchpin of DOJ’s motion to dismiss the Flynn charge is its contention that the Kislyak calls didn’t warrant continuation of the Flynn counterintelligence investigation.  As Bob Litt (who was then the General Counsel for the Director of National Intelligence) recently wrote, that assertion “cannot be right”:

The attorney general and his minions are making the astounding argument that when the FBI—aware of extensive Russian interference in U.S. politics in order to benefit the Trump campaign—learned that the incoming national security adviser requested that Russia not respond to the sanctions that were imposed in response to that interference and then lied to other government officials about that, it could not even “collect information or facts to determine” whether this created a counterintelligence threat.  This cannot be right.  Even if the prior investigation into Flynn had been closed, which it had not, these circumstances at a minimum justified an assessment under standard FBI policy.

The December 29 Kislyak call itself would have been more than enough to warrant further investigation, in light of what it suggested about the Trump team’s apparent, startling indifference to Russia’s election interference on its behalf.  But the predicate to continue the counterintelligence investigation of Flynn—indeed, the urgent need to do so—was then exacerbated when, between January 12 and 15, the incoming Deputy National Security Advisor (McFarland), the incoming White House Press Secretary (Spicer), the incoming Chief of Staff (Priebus), and the Vice-President-Elect (Pence) all insisted to the press that Flynn and Kislyak hadn’t discussed sanctions—something the Bureau knew to be a false narrative.

This extraordinary misinformation campaign continued even after Trump became President and Flynn became National Security Advisor.  On January 23, 2017, Press Secretary Spicer delivered his first press briefing, during which he stated that he had spoken with Flynn the night before, and that Flynn confirmed that his calls with Kislyak were about topics unrelated to sanctions.  As the Mueller Report explains, “Spicer’s statements added to the Department of Justice’s concerns that Russia had leverage over Flynn based on his lies and could use that derogatory information to compromise him.”  Either all of these Administration officials were deliberately lying, or Flynn had lied to them and therefore had something to hide from even some of the highest officers in the government.  That was plenty disturbing in and of itself, but it also exposed Flynn to possibly being compromised by Russia.  As Mary McCord—then the Acting head of the DOJ National Security Division—recently wrote:

[T]he Russians would have known what Mr. Flynn and Mr. Kislyak discussed. They would have known that, despite Mr. Pence’s and others’ denials, Mr. Flynn had in fact asked Russia not to escalate its response to the sanctions.  Mr. Pence’s denial of this on national television, and his attribution of the denial to Mr. Flynn, put Mr. Flynn in a potentially compromised situation that the Russians could use against him.

The potential for blackmail of Mr. Flynn by the Russians is what the former Justice Department leadership, including me, thought needed to be conveyed to the incoming White House.  After all, Mr. Flynn was set to become the national security adviser, and it was untenable that Russia—which the intelligence community had just assessed had sought to interfere in the U.S. presidential election—might have leverage over him.

Under these circumstances, the FBI obviously had ample justification for continuing to investigate Michael Flynn–indeed, it would have been derelict not to do so.  The only real questions, which I discuss below, were how it should do so and whether and when it should inform the incoming President about what it knew concerning his National Security Advisor.

  1. President Obama’s Reaction

In late December and in early January 2017, the Obama Administration was surprised that Russia did not respond as expected, with harsh countermeasures, to the U.S.’s sanctions and the expulsion of 35 Russian diplomats.  President Obama asked the intelligence agencies to search their resources for a possible explanation, and it was then that the FBI discovered the Flynn/Kislyak conversation from December 29.  The President and his administration were, for very good reason, deeply concerned about the Flynn/Kislyak calls, particularly given that the Intelligence Community was then reading Flynn into many highly classified matters.  Obama explained to National Security Advisor Rice, Vice President Biden, FBI Director Comey and Deputy Attorney General Yates that he needed to know whether the White House should be treating Flynn any differently, in terms of information-sharing regarding Russia.  He stressed, however, that he was not “asking about, intimating or instructing anything from a law enforcement perspective”—in sharp contrast to the way in which President Trump would later brazenly violate the longstanding norms precluding presidential involvement in law enforcement decision-making.  Obama told the gathered officials that “our law enforcement team needs to proceed as it normally would—by the book.”

That was proper way of dealing with the matter.

  1. What About “Unmasking” Flynn’s Identity?

The “unmasking” issue is a red herring.  The FBI reportedly didn’t “mask” Flynn’s name to begin with in the transcript of the December 29 Kislyak conversations, presumably because those calls were discovered during an effort by the Intelligence Community to find an explanation for what might have caused Russia not to retaliate.  (In any event, even if the FBI had originally redacted Flynn’s name from the transcript and then disclosed his involvement to officials in the Intelligence Community so that they understood what had happened and what the possible continuing threats were—that’s what “unmasking” is—there’d have been nothing remotely wrong with doing so.  That would have been the sort of entirely appropriate and uncontroversial unmasking that happens every day within the executive branch.)

  1. The Leak to David Ignatius

On January 12, 2017, David Ignatius reported in the Washington Post that “[a]ccording to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the [Russian election] hacking.”  (Ignatius also reported that a “Trump official” confirmed that Flynn had spoken with Kislyak by phone, “but said the calls were before sanctions were announced and didn’t cover that topic.”  That was, of course, incorrect.  The Trump official in question was K.T. McFarland.  Flynn himself asked McFarland to contact the Washington Post to convey false information about his communications with Kislyak, and she did so, insisting that Flynn and Kislyak had never discussed sanctions and that they had actually spoken before the administration’s sanctions announcement—all of which she knew to be untrue.)

Ignatius’s story didn’t reveal any of the contents of the December 29 conversations, and it almost certainly didn’t tell the Russians anything they didn’t already know: they undoubtedly assumed the United States was monitoring the Ambassador’s calls.  The national security damage therefore was probably negligible (although it’s possible it was more problematic for reasons to which I’m not privy).  Even so, there are diplomatic reasons not to publicly confirm the fact that was implicit in this leak—namely, that the U.S. and Russia try to surveil one another’s diplomats.  And even if it didn’t cause much harm, the leak was at a minimum a violation of the conditions of the official’s access to classified information, and it might have violated a criminal law, too (unless the official was the classifying authority or obtained permission from that authority, which I suppose is possible).  Moreover, I can’t think of any compelling justification for this improper leak, which occurred while the Obama Administration was considering how to deal with the Kislyak calls, and just a few days before Trump’s inauguration.

  1. Jim Comey’s Authorization for the FBI to Interview Flynn Before DOJ Informed the Trump White House Counsel About the Kislyak Calls

During the 2016 election campaign, Jim Comey’s unilateral, unjustifiable actions regarding the Clinton email investigation, in violation of important DOJ practices and protocols, might well have had a decisive impact on the election.  Yet less than three months after the election, Comey once again took it upon himself to breach relevant protocols and, in effect, to circumvent the wishes of the Acting Attorney General, Sally Yates.

The details can be found at pages 2-6 of the FBI’s “302” report of Yates’ interview with the Mueller investigators  and at pages 3-6 of Mary McCord’s 302 report.  In sum, Yates, Director of National Intelligence Clapper, and CIA Director Brennan all agreed that because Flynn was about to become the President’s National Security Advisor, the FBI should notify the incoming Trump administration of the substance of the Flynn/Kislyak calls, particularly after White House Spokesperson Sean Spicer and Vice President-Elect Pence publicly insisted that Flynn had not discussed sanctions with Kislyak.  But Comey refused to do so, for reasons that remain somewhat obscure.

Once Trump was inaugurated on January 20, and Flynn took office on January 22, Yates, who by then was the Acting Attorney General, decided not to wait for Comey any longer and to inform White House Counsel Don McGahn of the Kislyak calls.  When she called to inform Comey of that decision, however, he told her he had already sent two FBI agents to the White House to interview Flynn.  Remarkably, Comey later said in an interview that in an ordinary administration such as the Bush 43 and Obama administrations, the protocol would have been for the Bureau to notify the White House Counsel before sending FBI agents to the White House to interview a senior official, but that he decided to take advantage of the fact that the new Trump Administration wasn’t “organized.”  (Comey apparently thought this explanation somehow justified what he did.)

When Comey told Yates of the impending interview, she was “dumbfounded” and the team of senior DOJ officials dealing with the issue were “flabbergasted”; they “hit the roof.”  As Mary McCord recently wrote, “[w]e objected to the rogueness of the decision by the F.B.I. director, Jim Comey, made without notice or opportunity to weigh in.”

“Rogueness” is a polite way of putting it.  Comey’s sanctimony, his belief that he alone understood the best interests of the Department and the Nation, and his willingness to repeatedly disregard important and longstanding DOJ norms and the chain of command, bordering on insubordination, were his modus operandi throughout (at least) the last year of his tenure.  It was a lethal combination.

  1. The FBI’s Strategy and Objectives in its January 24 FBI Interview with Flynn

In a sentencing memorandum it filed in January 2020, the Department of Justice explained that after Flynn’s calls with Kislyak and the false stories that Pence and others were purveying, the FBI “did not know the totality of what had occurred between the defendant and the Russians,” and that “determining the extent of [Flynn’s] actions, why [he] took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.”  This was particularly true because “[a]ny effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia.”

As I hoped I’ve shown above, that was precisely correct—the principal objective of any interview with Flynn should have been to get to the bottom of the potential counterintelligence threat.  FBI Director Comey himself later testified that he sent his agents to interview Flynn on January 24, 2017 at least in part because there was a “disconnect” between what the Vice President was saying in public and what Flynn had in fact said to Kislyak, and Comey wanted his agents “to sit before [Flynn] and say ‘what is the deal?’”  And FBI Counterintelligence Chief Bill Priestap apparently agreed.  His notes from that morning state his view that “if [Flynn] initially lies, then we present him [redacted] and he admits it, document for DOJ, and let them decide how to address it.”

As far as the available public record shows, however, the agents who interviewed Flynn didn’t take that route.  Instead, it appears that Bureau leadership apparently decided before the interview that if Flynn didn’t confirm to the agents what they knew he had said to Kislyak, “they would not confront him or talk him through it.”  (The quote is from a later 302 report of an interview with one of the agents, Peter Strzok.  Unfortunately, the reasons for that decision appear to be redacted from Strzok’s 302 Report.  Nor is it clear who made this tactical decision.)  In the interview itself, Flynn said he couldn’t recall any discussion with Kislyak of the sanctions and expulsions, even after the agents used his own words from those conversations in order to jog his memory (and/or to subtly signal to him that they had a recording).  And then the agents left it at that.  They didn’t confront Flynn with evidence of what he had said to Kislyak; didn’t ask him why he said such things; about who else, if anyone, he discussed the call with, before or after; why he had disregarded the Obama administration’s pointed request that he not have such conversations; why he had lied to Pence, et al.; etc.  In other words, they didn’t do any of the things one might expect investigators to do if their goal was to get to the bottom of the case, and assess the scope and degree of any possible counterintelligence threat, during that interview.  Instead, all they appeared to accomplish was to confirm that Flynn was committed to lying about his calls with Kislyak.

This isn’t my area of expertise—not by a longshot.  I’ve never been involved in a counterintelligence investigation nor an FBI witness interview.  So I inquired with several people much more experienced in these matters than I am.  They’ve mostly shared my bafflement about the apparent interview strategy, and view the interview itself–at least based upon what is publicly known about it–as having been ineffective at figuring out what Flynn was up to and why.

The new DOJ motion to dismiss the charge against Flynn insinuates that the FBI undertook the interview primarily as a perjury trap.  The interview, it asserts, “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.”  And in an interview on May 7, Attorney General Barr stated unequivocally that the FBI continued the investigation of Flynn for the “express” purpose of “lay[ing] a perjury trap for General Flynn.”

If that were what happened—if the agents were simply trying to set a “perjury trap”—that wouldn’t have been unlawful or especially unusual, nor would it justify or exculpate Flynn’s lies during the interview.  For what it’s worth, however, the experienced prosecutors with whom I’ve consulted are uniformly certain it wasn’t such a trap—at least, not a trap designed to successfully prosecute Flynn for a violation of 18 U.S.C. § 1001(a)(2).  If it had been, the agents probably would have warned Flynn about § 1001 in advance, which makes it much easier to prove “willfulness” in the case of a § 1001 trial given the federal government’s current view that that element requires proof beyond a reasonable doubt that the defendant made a false statement with knowledge that his conduct was unlawful.  Most importantly, it’s unlikely the Bureau was trying to trick Flynn into violating § 1001 because it almost certainly didn’t expect him to continue his false denials—especially not when the agents used his own statements in forming their questions—given that Flynn had already acknowledged to Deputy Director Andrew McCabe that he assumed the FBI “probably knew what was said in these calls because [you] listen to everything they [i.e., Russian diplomats in the U.S.] say.”

But if the Bureau wasn’t trying to induce Flynn to make false statements, then the question remains:  Why did the FBI conduct the interview as it did—especially after it had ignored the Acting Attorney General and refused to coordinate with the Justice Department?

Quite honestly, I’m not sure of the answer to this question.  The best I’ve come up with is this, but concededly it’s speculative:  The two agents and others in the Bureau expected Flynn to come clean and, in part for that reason, the agents hadn’t been authorized to acknowledge to Flynn that they had a recording or transcript of his conversations with Kislyak.  They also didn’t know for certain that Sally Yates was about to reveal that information to the President through White House Counsel McGahn.  Therefore, when Flynn continued his denials, even after being prompted with his own words, the agents had little option but to return to FBI headquarters and report the somewhat surprising results of the interview, which would allow officials at the Bureau and DOJ to discuss and agree upon the next steps, which might include, e.g., a follow-up interview with Flynn; interviewing others; searching for further evidence of communications with Kislyak; disclosing to McGahn and Trump what the FBI already knew: etc.  Perhaps, in other words, the agents thought their best (or only) course of action was to leave all the options on the table until their superiors reached a view on which course to take, given the curve ball Flynn had thrown them.

  1. Flynn’s Knowing and Willful False Statements During the January 24 Interview

Did Flynn knowingly and willfully lie in his interview with the FBI agents?  As noted below, the new DOJ motion to dismiss shockingly suggests that this is a close question.

It’s not.

For one thing, less than a year later Flynn admitted that he did so, under penalty of perjury.

Even if Flynn hadn’t attested to it, however, the evidence is overwhelming that Flynn was deliberately lying to the agents–that he hadn’t forgotten the very reasons that he had called Kislyak and what they had discussed.

Recall, for example, that in mid-January President Trump had Reince Priebus direct Flynn to “kill the story.”  Flynn then instructed K.T. McFarland to call the Washington Post and deny that Flynn had discussed sanctions with Kislyak, and Flynn made the same denials to Priebus, Pence, and Spicer.  Flynn was obviously committed, in other words, to doing what Trump wanted of him, perhaps fearing that his job depended upon it.  (Flynn told the Mueller investigators that “he felt a lot of pressure because Priebus had spoken to the ‘boss’ and said Flynn needed to ‘kill the story.'”)  In other words, this was something Flynn had been thinking a great deal about over the course of the preceding weeks.

Trump’s pressure on him to “kill the story” also likely explains why Flynn repeatedly made false statements about his communications with Kislyak during the January 24 FBI interview, even though he suspected (as he told McCabe) that the FBI had the goods on the calls.  In particular:  Flynn stated that he didn’t request that any countries take any particular action on the UNSC Resolution.  But on December 22, 2016, Flynn called Kislyak, informed him of the incoming Trump Administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution.  Flynn also stated that Kislyak never relayed to Flynn Russia’s response to his December 22 request regarding the resolution.  That was false, too.  Kislyak in fact told Flynn in a conversation on December 23, 2016, that Russia would not vote against the resolution if it came to a vote.  Flynn stated to the agents that he didn’t ask Kislyak on December 29 to refrain from escalating the situation in response to sanctions the United States had imposed against Russia.  But that is exactly what he asked Kislyak to do.  (Flynn even said to the agents that he spoke to Kislyak before he was aware that Obama had imposed sanctions, which was obviously fabricated.)  And Flynn told the agents that he didn’t recall a follow-up conversation in which Kislyak told him that Russia had decided to temper its response as a result of Flynn’s request—but that, too, was untrue.

These falsehoods were certainly willful and knowing.  Flynn couldn’t possibly have forgotten about these things that had occurred less than a month previously:  They were a very big deal for him and the other transition team members at the time; he had even boasted about his responsibility for Russia’s response; the President had sent word that he had to “kill the story”; he had specifically instructed McFarland to deny to the press that he had discussed sanctions; and when the issue had become a public controversy, he had told Pence, Priebus and others that he hadn’t discussed the sanctions.  This wasn’t something that had slipped his mind in the first three weeks of January.  Flynn also knew it was unlawful to lie to the Bureau in this setting.

All of which explains why White House Counsel McGahn and Chief of Staff Priebus, upon learning of the content of Flynn’s calls with Kislyak, “concluded that Flynn could not have forgotten the details of the discussions of sanctions and had instead been lying about what he discussed with Kislyak.”  Indeed, no reasonable observer could conclude otherwise.  And Flynn’s own sworn declaration confirms it.

  1. What Acting Attorney General Yates and White House Counsel McGahn Did After the January 24 Interview

In contrast to Comey and the FBI, Acting Attorney General Yates did exactly the right thing, given that Flynn had just become the National Security Advisor.  She realized that the possible counterintelligence threat wasn’t something that could or should be kept secret from the President, so she informed White House Counsel Don McGahn of the Kislyak calls and the fact that Pence’s and Spicer’s account of them was untrue.

One of McGahn’s Deputies, Jon Eisenberg, reviewed the evidence of the Kislyak calls on February 2, and told McGahn what they revealed.  McGahn, in turn, concluded that Flynn had been lying, and recommended that the President remove him.  (This wasn’t necessarily the only precipitating event.  Back on January 4, Flynn disclosed to McGahn that he was under federal investigation for secretly working as a paid lobbyist for Turkey during the campaign.)

President Trump requested Flynn’s resignation, and Flynn resigned on Monday, February 13, 2017.

All of this was the system working just as it should have.

This can’t be stressed enough.  The most important part of the story here—far more significant than the FBI interview; the leaks; the question of “materiality”; and whether Michael Flynn is ever convicted of a federal offense—is that Flynn was a man of very questionable judgment and temperament, something he demonstrated repeatedly in just the seven months or so between the Republican Convention and his few weeks in office.  He would have posed a risk of significant danger as National Security Advisor.  Thankfully, Barack Obama, Sally Yates, Don McGahn, Reince Priebus, and others—perhaps even Donald Trump—realized as much, and took steps that led to his removal from office after only 24 days.

  1. The February Leak(s) to the Washington Post

On February 9, 2017, one week after the White House Counsel’s Office reviewed the Flynn/Kislyak transcripts, the Washington Post published a story (written by Greg Miller, Adam Entous and Ellen Nakashima) reporting that, contrary to the public assertions of Pence, et al., Flynn and Kislyak had discussed the U.S. sanctions on December 29, and that some U.S. officials interpreted Flynn’s statements “as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.”  The story also reported that the previous day, February 8, Flynn had continued to (falsely) deny he had discussed sanctions with Kislyak.

The Post story stated that “[n]ine current and former officials, who were in senior positions at multiple agencies at the time of the calls, spoke on the condition of anonymity to discuss intelligence matters”; that all nine officials “said ­Flynn’s references to the election-related sanctions were explicit”; and that two of them “went further, saying that Flynn urged Russia not to overreact to the penalties being imposed by President Barack Obama, making clear that the two sides would be in position to review the matter after Trump was sworn in as president.”

As Ryan Goodman wrote, we don’t know whether all nine of those officials actually revealed to the reporters any new classified information.  Some of them, for example, might have discussed information the reporters told the officials they already had, in order to provide context or warn the reporters about possible mistakes.  Recall also that these officials spoke to the Post only after the Trump administration itself had already publicly acknowledged the December 29 Kislyak call and had made false public representations about its content—denying that sanctions were discussed.  It’d certainly be understandable if these former and current officials were deeply concerned that the administration was offering the public a bogus account of the Kislyak communications, and that President Trump appeared not to be doing anything about Flynn, even after his disinformation was spread widely.  To the extent the officials’ discussions with the Post prevented the government from continuing to provide the public with false information about an alarming exchange between the incoming National Security Advisor and the nation that had just manipulated the U.S. election, and/or prompted Trump to do something about Flynn (which he did just four days later), they may have served a very valuable function.  Moreover, the information discussed with the Post did not involve the actions of persons who were U.S. officials on December 29, and therefore the tangible harm to national security was probably negligible.

Nevertheless, to the extent any of the officials in question revealed classified information from intercepted communications, that was at a minimum a violation of obligations imposed upon them as a condition of their access to such information, and very possibly a violation of criminal law, as well.  Of course it’s hazardous to make any general or categorical assessments:  I’m completely in the dark about the circumstances and specifics of the officials’ communications with the Post reporters, and for all I know this might have been one of those very rare cases in which such civil disobedience was morally justified.  But from what’s in the public record, it’s not obvious why that would be so and, in any event, even if such discussions could be morally justified, that wouldn’t affect the fact that they were a breach of legal obligations.

  1. Trump’s Effort to Shake Down Comey

White House Counsel McGahn had advised President Trump that he should refrain from communicating directly with the Department of Justice on open investigations in order “to avoid the perception or reality of political interference in law enforcement.”  Yet on February 14, the day after Flynn’s resignation, Trump pulled FBI Director Comey aside and said to him “I hope you can see your way clear to letting this go, to letting Flynn go.  He is a good guy.  I hope you can let this go.”  The Mueller Report rightly concluded that “the circumstances of the conversation show that the President was asking Comey to close the FBI’s investigation into Flynn.”

This was merely the first of many times that President Trump has publicly or privately tried to influence particular law enforcement (or military) investigations and prosecutions.  (Volume II of the Mueller Report extensively describes many such examples.)  It’s a grave breach of the longstanding norm that McGahn implored Trump to honor.  And because it was manifestly done—here and in virtually all of the subsequent cases—primarily or exclusively to advance Trump’s own interests, it was also a violation of his oath of office and of his constitutional duty to take care the laws are faithfully executed.  As Ben Wittes wrote:

[Trump] isolated Comey in order to ask that he drop a sensitive FBI investigation in which he had a personal interest.  He did this knowingly and intending to interfere with the investigation of Russian interference in the election and contacts between his transition team and Russian officials.  It is a quintessential abuse of power, and while there may be viable technical defenses against a criminal charge, there simply is no plausible way to understand it as a good-faith exercise of presidential power.

  1. Trump’s Effort to Induce McFarland to Exonerate Him

Five days after his attempted shakedown of Comey, President Trump (through Priebus and Bannon) told K.T. McFarland, Flynn’s Deputy at the NSC, that he wanted her to resign, too, and suggested he might appoint her to be Ambassador to Singapore.  Trump asked Priebus to have McFarland draft an internal email that would “confirm” that Trump had not directed Flynn to call Kislyak about sanctions in December.  McFarland told Priebus that because she didn’t know whether or not Trump had directed Flynn to speak with Kislyak about sanctions, she wouldn’t draft such an email.  According to the Mueller Report, “[t]he President’s request … was sufficiently irregular that McFarland … felt the need to draft an internal memorandum documenting the President’s request, and [Jon] Eisenberg was concerned that the request would look like a quid pro quo in exchange for an ambassadorship.”

Unless Trump did not direct Flynn to discuss sanctions with Kislyak (something that remains uncertain) and believed that McFarland knew of that fact, his request that she draft an exonerating email was not only very irregular but very troubling, too.

  1. The Mueller Team’s Treatment of the Flynn Case (Including Flynn’s FARA Violations)—and Its Decision to Charge Him with a Violation of Section 1001

In May 2017, after Flynn and Comey were no longer in office, Acting Attorney General Rod Rosenstein appointed Robert Mueller as Special Counsel to oversee the Russia investigations.  On August 2, 2017, Rosenstein specifically authorized Mueller to investigate allegations that Flynn (i) committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition; (ii) committed a crime or crimes by making false statements to the FBI when interviewed about his contacts with the Russian government; (iii) committed a crime or crimes by failing to report foreign contacts and income on a Form SF-86 that he completed in anticipation of his being selected to serve as the National Security Adviser to President Trump; and (iv) committed a crime or crimes by acting as an unregistered agent for the government of Turkey.

Using further, more probing interviews with Flynn—at least 19 in all—and with other Trump transition team officials (such as McFarland and Kushner), and an examination of numerous emails, Mueller’s team was able to discover much of the information about the Kislyak calls that the FBI agents didn’t follow up on during their January 24 interview with Flynn.  The results appear at pages 167-173 of Volume I of the Mueller Report and at pages 24-26 of Volume II.  During this 2017 investigation, Flynn admitted that he had knowingly and willfully lied to the FBI, and on November 30, he declared under penalty of perjury the details of his acknowledged, deliberate falsehoods.

Importantly, apart from the Kislyak calls, Flynn also attested that he made several false statements and omissions on March 7, 2017, when he filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey:  (a) Flynn falsely stated that FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project; (b) he falsely stated that the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey; (c) he falsely stated that he initiated the writing of an op-ed he published in The Hill on November 8, 2016; and, most significantly, (d) he confessed to omitting from his FARA reports the material fact “that officials from the Republic of Turkey provided supervision and direction over the Turkey project.”

Flynn thus effectively admitted, under oath, to violating FARA, a statute that generally makes it illegal to act as an agent of a foreign principal by engaging in certain (largely political) activities in the United States without registering with the Attorney General, and that also makes it a crime to willfully make false statements or omissions of material facts in FARA registration statements or supplements.  As DOJ wrote in a recent sentencing memo about Flynn: 

FARA ensures that the public and our government know when foreign actors are behind activity intended to influence policy or opinion, so that policymakers and the public can properly evaluate the activity.  Here, [Flynn] was working under the “supervision and direction” of the Government of Turkey, but never made such disclosures.  During the entirety of the defendant’s time as the National Security Advisor and a senior advisor to the Presidential Transition Team, the public and our government did not know about his relationship with the Government of Turkey.  When he published an op-ed seeking to remove a U.S. resident from the United States, the public was not informed that he and his company had been paid to do so at the behest of the Government of Turkey.  Instead, he falsely represented in his FARA filings that the op-ed was written at his own initiative.  And when individuals hired by his company lobbied federal and state officials, those individuals never disclosed that their activity was all being done under the “supervision and direction” of the Government of Turkey.

As the former DOJ prosecutors recently told Judge Sullivan, they could have indicted Flynn for FARA violations, which are just as serious as, if not more serious than, a § 1001 offense, subject to maximum penalties of up to five or ten years in prison plus hefty fines.  Yet the Government didn’t do so, presumably because (i) Flynn was willing to cooperate with the Mueller investigation in many important respects; (ii) he was willing to attest to facts constituting FARA violations; (iii) he was willing to plead guilty to his § 1001 offense involving the lies he told the FBI agents in the January 24 interview; and, perhaps, (iv) Mueller didn’t think it was very important for Flynn to spend any considerable time in prison, at least as long as he cooperated fully.

The § 1001 offense to which Flynn pleaded guilty, in other words, is not a slim reed on which Flynn’s culpability depends—it is, instead, a more lenient fallback resolution of the sort that’s very common when prosecutors negotiate with cooperative targets of investigations.  Accordingly, the prosecution here didn’t come anywhere close to “railroading” Michael Flynn.  Quite the opposite:  It offered him a very generous deal, primarily because Robert Mueller was (appropriately) much more concerned with getting to the bottom of the Russia investigation than with harshly punishing Flynn for his concededly criminal conduct.

  1. DOJ’s New Arguments for Dismissing the Charge Against Flynn

And so we come, finally, to DOJ’s recent motion to dismiss the single charge to which Flynn has twice pleaded guilty.  I’ll explain below why I think that motion is groundless.  But before I do, I should stress again that whether Judge Sullivan ultimately grants this motion—and whether Flynn is convicted—is truly the tail wagging the dog.  The matters I’ve already discussed are, in many respects, far more important—as is what the motion itself reveals about the current Attorney General.

Flynn pleaded guilty to 18 U.S.C. § 1001(a)(2), which makes it unlawful to “knowingly and willfully … make[] 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.”  DOJ’s argument that this charge should be dismissed rests on three primary contentions:

(i) that as of January 24, 2017, the FBI had no “legitimate” basis for investigating Flynn at all;

(ii) that because the FBI “had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak,” there was “[no] justification or need to interview Mr. Flynn as to his own personal recollections of what had been said”;


(iii) that even if Flynn’s statements “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.”

Each of these three legs of the DOJ argument is flimsy, to say the least.

(i) The contention that there’s insufficient evidence that Flynn willfully lied

Let’s start with the third and final proposition—the notion that DOJ couldn’t prove to a jury beyond a reasonable doubt that Flynn knowingly and willfully made any false statements in the January 24 interview.  First of all, DOJ wouldn’t have to prove it to a jury—Flynn attested to the knowing and willful falsehoods as part of a guilty plea.  But even if DOJ did have to present the case to a jury, Flynn’s own acknowledgements that he lied—both in his interview with the Mueller investigators and in his plea agreement—would itself make this just about the easiest case imaginable to prove that fact.  And, in any event, as I explain in Point No. 11, above (see also Bob Litt here), the evidence is overwhelming—indeed, incontrovertible—that Flynn knew he was lying to the FBI about both sets of Kislyak calls.

This aspect of the DOJ argument is virtually frivolous.

(ii) DOJ’s insistence that there wasn’t any justification for the FBI’s investigation of Flynn at all in January 2017

The first leg of DOJ’s argument fares no better.  Of course the FBI had a compelling—indeed, an imperative—counterintelligence basis to investigate Flynn when it learned what he said to Kislyak on December 29, and especially after he induced McFarland, Spicer, Preibus and Vice-President-Elect Pence to publicly deny that he had discussed the sanctions with Kislyak.  DOJ’s argument to the contrary depends crucially on its assertion that the Kislyak calls “were entirely appropriate on their face.”  As I discuss in Point 3, above, that assertion simply blinks reality.  (See also Bob Litt, on why the Kislyak calls and Flynn’s dissembling about them were far more than necessary to constitute a sufficient “predicate” for continued investigation.)

(iii) The claim that Flynn’s lies couldn’t have affected the FBI’s investigation

That leaves, finally, DOJ’s second contention, which I understand to be, in effect, an assertion that Flynn’s lies to the FBI were harmless, and thus couldn’t have been “material” to the FBI investigation for purposes of § 1001, because the FBI “had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak.”  That is to say:  The FBI knew the statements were untrue, so Flynn’s lies couldn’t have had any detrimental impact on the investigation.  Indeed, according to the DOJ brief there was “[no] justification or need to interview Mr. Flynn as to his own personal recollections of what had been said.”

This theme of DOJ’s argument does, at first glance, have some intuitive appeal:  After all, Flynn’s lies simply confirmed what the investigators and other officials were worried about, namely, that Flynn was committed to trying to convince everyone in the Government and the public that he hadn’t discussed sanctions with Kislyak when in fact he had done so.

But insofar as DOJ is relying on this sort of a claim, it’s faulty on the facts and on the law.  As for the facts, Flynn’s lies did have an impact on even the FBI interviewers themselves.  Imagine if Flynn had told them the truth:  “Yes, I asked Russia to delay the U.N. vote, and I asked Russia not to escalate the sanctions situation, suggesting to them that the Trump Administration would be more forgiving of the election interference.”  In that instance, of course, the agents would have followed up in the January 24 interview itself with obvious questions about why Flynn did so; about who, if anyone, asked him to do so; about why they disregarded the Obama Administration’s admonitions not to do so; about why they were relatively indifferent to Russia’s election hacking; about why Flynn lied to Pence, Priebus and Spicer; about why Flynn directed McFarland to lie to the Washington Post; etc.  To be sure, and as I discuss in Point No. 10, above, the agents could have laid the predicate for such questions even after Flynn lied to them, by confronting him with the transcripts of his calls.  But, for whatever reason, the FBI had decided not to disclose to Flynn in that interview that it had intercepted the communications, and therefore his lies effectively prevented the interview from proceeding to those key questions.

More importantly, the law doesn’t require proof that the lies had an actual impact on the investigation.  You might not appreciate that from reading the DOJ brief, the very first page of which includes this (seemingly) very powerful citation of authority:

Materiality is an essential element of the offense.  Materiality, moreover, requires more than mere “relevance” or relatedness to the matter being investigated; it requires “probative weight,” whereby the statement is “reasonably likely to influence the tribunal in making a determination required to be made.”  United States v. Weinstock, 231 F.2d 699, 701 (D.C. Cir. 1956) (italics in DOJ brief).

If that’s all you knew of the law, you might think: well, gosh, Flynn’s lies didn’t turn out to have any “probative weight”; because the FBI already knew what Flynn said to Kislyak, Flynn’s denials weren’t “reasonably likely”—indeed, not likely at all—to influence any “determination” by the FBI, let alone a determination the FBI was “required” to make.

But DOJ here has egregiously and deliberately misstated the law.  The sole authority it cites is an introductory paragraph from a 64-year-old decision (reversing a red-baiting conviction) regarding the role of “materiality” in the law generally.  The very next paragraph of that opinion more accurately acknowledges that “[t]he test” under § 1001 is, in fact, whether the false statement “has a natural tendency to influence, or was capable of influencing,” an agency’s actions—not that it was “reasonably likely” to do so.  Weinstock, 231 F.2d at 701 (emphasis added); see, e.g., United States v. Gaudin, 515 U.S. 506, 509 (1995).  And the suggestion in DOJ’s Weinstock quotation that the determination in question must be one that the agency is “required” to make is obviously mistaken, as the D.C. Circuit has already held, see United States v. Stadd, 638 F.3d 630, 638 (D.C. Cir. 2011) (Henderson, J.).

It’s worth noting that Flynn himself made this same argument (i.e., that because the FBI “knew exactly what was said,” nothing in Flynn’s answers to the agents “impeded [the FBI’s] purported investigation”) just a few months ago, also “without citation to any legal authority.”  United States v. Flynn, 411 F. Supp. 3d 15, 41 (D.D.C. 2019).  Judge Sullivan unceremoniously and correctly rejected the argument then because it’s “foreclosed by D.C. Circuit precedent.”  Id. (citing United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010)).  The Judge’s analysis then, id. at 41-42, explains why DOJ’s resuscitation of that argument now is frivolous:

Mr. Flynn has a fundamental misunderstanding of the law of materiality under 18 U.S.C. § 1001(a)(2), which requires a false statement to be “material.” . . .  The Supreme Court has instructed that “[t]he statement must have ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.’”  United States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); accord United States v. Diggs, 613 F.2d 988, 999 (D.C. Cir. 1979) (“Proof of actual reliance on the statement is not required; the Government need only make a reasonable showing of its potential effects.”).  But “a statement need not actually influence an agency in order to be material.”  Moore, 612 F.3d at 701.

As a matter of law, the government need not prove that Mr. Flynn’s false statements impeded the FBI’s investigation in order to establish the materiality elementSee id. at 702 (holding that defendant’s false statement “was capable of affecting the Postal Service’s general function of tracking packages and identifying the recipients of packages entrusted to it” and defendant’s false information “could have impeded the ability of the Postal Service to investigate the trafficking of narcotics through the mails”).  And Mr. Flynn’s multiple false statements were material regardless of the interviewing FBI agents’ knowledge of any recordings and transcripts of his conversations with the Russian Ambassador—the existence or non-existence of which have neither been confirmed nor denied by the government, see Gov’t’s App. A, ECF No. 122-1 at 5—and whether the FBI had knowledge of Mr. Flynn’s exact words during those conversationsSee United States v. Safavian, 649 F.3d 688, 691 (D.C. Cir. 2011) (rejecting defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them”).

DOJ knows all of this law, of course.  Indeed, for many years the Department has consistently insisted that the argument Flynn made, and that DOJ now apparently adopts, fundamentally misunderstands the meaning of “materiality” under § 1001.  This is what the Department argued, for example, in a brief it filed in the U.S. Court of Appeals for the Second Circuit just three days before it filed its motion in the Flynn case:

“It has never been the test of materiality that the misrepresentation or concealment would more likely than not have produced an erroneous decision.”  Kungys v. United States, 485 U.S. 759, 771 (1988).  Indeed, “the phrase ‘natural tendency’ connotes qualities of the statement in question that transcend the immediate circumstances in which it is offered and inhere in the statement itself.’”  United States v. McBane, 433 F.3d 344, 351 (3d Cir. 2005) (quoting United States v. Gaudin, 515 U.S. 506, 512 (1995)) . . . .  In other words, the inquiry is entirely objective. . . .  Thus, where the “point” of a false statement was to influence an agency’s decision and the statement had “in the ordinary course … an intrinsic capability” to do so, the materiality standard is met.  [United States v.] Turner, 551 F.3d [657,] 664 [7th Cir. 2008].

This longstanding DOJ and judicial view undoubtedly explains why, later in its brief in support of its motion to dismiss the Flynn charge (p.17), DOJ acknowledges in passing that “it does not matter that the FBI knew the truth and therefore was not deceived by Mr. Flynn’s statements” (citing Safavian and Moore).  That’s right.  And it also explains why DOJ’s highlighted reliance on the quotation from Weinstock to suggest just the opposite is so disingenuous.

* * * *

In sum, each of the three predicates for DOJ’s motion is shockingly threadbare.  There’s no “there” there.

  1. What Can and Should Judge Sullivan Do Now?

Rule 48(a) of the Federal Rules of Criminal Procedure provides that “[t]he government may, with leave of court, dismiss an . . . information.”  The DOJ motion asks Judge Sullivan for the required “leave of court.”

Judge Sullivan’s power to deny such leave is fairly narrow—which is a good thing.  A prosecutor’s motion to dismiss pending charges protects individuals from punishment that might be unwarranted or unduly severe.  And ordinarily it’d be very troubling for a court to effectively require the Executive branch to take affirmative steps to prosecute a case where the officials in charge have concluded that it wouldn’t be just (or in some cases that it wouldn’t be lawful) to do so.

Of course, this isn’t the usual case.  A denial of DOJ’s Rule 48(a) motion here would not require the Executive branch to take any affirmative steps to continue prosecuting the case:  That job is finished, and all that remains before entry of judgment is the judge’s own sentencing.

Even so, however, Rule 48(a) doesn’t afford a court the power to deny leave to dismiss a charge based simply on the judge’s personal view “that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges,” United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016), or “on the ground that the prosecution has been too lenient,” id. at 746.  But cf. Rinaldi v. United States, 434 U.S. 22, 34 (1977) (Rehnquist, J., dissenting) (“This proviso [“leave of court”] was specifically added as an amendment to the original draft, which had provided for automatic dismissal upon the motion of the United States, and would seem clearly directed toward an independent judicial assessment of the public interest in dismissing the indictment.”).

In its only brief discussion of the Rule 48(a) standard, the Supreme Court indicated that a district court can deny leave to dismiss a charge where the prosecution is acting in “bad faith” or was “motivated by considerations” that were “‘clearly contrary to manifest public interest.’”  Rinaldi, 434 U.S. at 30 (majority opinion) (quoting United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975)) (emphasis added).  That’s a demanding standard, as it ought to be.  Is it satisfied here?

Perhaps.  As I explained in Point 17, above, the DOJ motion to dismiss the Flynn charge is predicated on a series of propositions, legal and factual, that border on the preposterous.  In an amicus brief filed (but apparently not yet docketed) in the Flynn case, more than a thousand former prosecutors and DOJ officials argue that the DOJ brief is “so clearly and unequivocally wrong” that it “bears the hallmarks of a brazen attempt to protect an ally of the President,” and “appears to serve President Trump’s personal political interests, rather than the interests of the public whom the President and Attorney General Barr serve.”  [UPDATE:  In his brief filed on June 10, the court-appointed amicus, John Gleeson, likewise argues that “[t]he reasons offered by the Government are so irregular, and so obviously pretextual,” that they must be understood as “an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.”  Gleeson further notes that Trump has, inappropriately, tweeted or retweeted about Flynn at least 100 times from March 2017 to present; and that a week before the Government filed its motion to dismiss, Trump opined that Flynn’s case is a “scam[].”]

That might, indeed, explain why Barr (and then-Acting U.S. Attorney Timothy Shea) filed the motion.  And if Judge Sullivan were certain that such “bad faith” is the reason for DOJ’s Rule 48(a) motion to dismiss, perhaps it would then be appropriate for him to deny the motion, to sentence Flynn, and to enter a judgment of conviction.

There is, however, at least one other possibility—one that’s much more troubling but that doesn’t involve prosecutorial “bad faith,” as such:  It could be, as Charlie Savage recently put it, that Attorney General Barr sincerely “considers to be illegitimate the government’s counterintelligence effort to understand the scope of Russian election interference in 2016 and any links to the Trump campaign.”  That would explain the astounding assertions in the DOJ motion that Flynn’s calls with Kislyak “were entirely appropriate on their face” and that there wasn’t any “legitimate” basis for a counterintelligence investigation, even after Flynn lied to the Vice-President-Elect about the content of the calls.  Indeed, in a recent interview, Attorney General Barr asserted that the FBI investigation was “based on a perfectly legitimate and appropriate call [Flynn] made as a member of the transition.”  According to Barr, there “was nothing wrong with it whatever. In fact, it was laudable.”

If that’s the reason Barr insisted on moving to dismiss the Flynn charge, it raises a far, far greater problem than whether Michael Flynn is or isn’t convicted of a criminal offense.  Such a view reflects an alarming disregard for the constitutional difference between an incumbent President and the incoming administration.  It ignores the harms of engaging in such private diplomacy in secret, without the knowledge of the State Department.  It treats as “laudable” an effort to undermine the incumbent President’s conduct of foreign affairs in real time—and to do so in order to accommodate a hostile nation that had just engaged in a concerted effort to distort the U.S. presidential campaign in order to secure the election of the very President whose agent is engaged in the stealth diplomacy, and where that very President (and/or his agent engaged in the shadow communications) might possibly be in debt to that nation, and/or compromised by it.  It also assumes that the FBI should have turned a blind eye to all this even after several top officials of the new administration made repeated false representations to the public about the new National Security Advisor’s communications with that foreign power, either knowing that the statements were false or, more troubling still, having been assured by Flynn that the communications were very different from what the Bureau knew them to be.  If the Attorney General of the United States believes all of that conduct was “legitimate,” “appropriate” and “laudable,” and that there wasn’t any “legitimate” basis for investigating it, then how can anyone be confident that the Department of Justice under his stewardship will faithfully fulfill its constitutional responsibilities?

* * * *

In the end, I don’t have a strong, considered view of whether Judge Sullivan should grant the DOJ motion or not, in part because I don’t think it’s terribly important, in the grand scheme of things, whether Michael Flynn is actually convicted or is, as he might put it, “locked up.”  And anyway, President Trump will probably pardon him.

I do hope, however, that no matter what Judge Sullivan does with the DOJ motion, he will carefully and persuasively explain why DOJ’s rationales are so meritless; why, in particular, Flynn’s conduct was so inimical to the national interest; and why that conduct fully justified the profound concerns of the law enforcement and national security communities within the government, and the altogether proper responses of officials such as Barack Obama, Sally Yates and Don McGahn when they discovered what Flynn had done.


* What’s more, Flynn’s communications with Kislyak also violated the Logan Act, which makes it unlawful for a U.S. citizen to commence or carry on any correspondence or intercourse with any officer of a foreign government with the intent to influence the measures or conduct of that government “in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.”  I think the Logan Act is constitutional, at least in most applications, including where, as here, the citizen acts secretly, without knowledge of the State Department.  That said, there was no serious prospect of criminal culpability for Flynn under that law because it’s become, in effect, a dead letter via desuetude—there hasn’t been a Logan Act indictment in almost 170 years—and therefore any prosecution would raise serious fair notice problems unless the government were to clearly announce in advance that it was dusting off the statute and would begin to enforce it.

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