Get ready for lots and lots of palace-intrigue coverage of this major bombshell. The Department of Justice has filed a motion today ending all prosecution of Michael Flynn for obstruction of justice, ending one of the key cases developed by special counsel Robert Mueller. In fact, the DoJ all but accused Mueller of violating the scope of his investigation — a curious position given the memo Rosenstein issued that explicitly named Flynn as a target:
The Justice Department on Thursday said it is dropping the criminal case against President Donald Trump’s first national security adviser, Michael Flynn, abandoning a prosecution that became a rallying cry for Trump and his supporters in attacking the FBI’s Russia investigation.
The move is a stunning reversal for one of the signature cases brought by special counsel Robert Mueller. It comes even though prosecutors for the last three years had maintained that Flynn had lied to the FBI about his conversations with the Russian ambassador in a January 2017 interview. Flynn himself admitted as much, and became a key cooperator for Mueller as he investigated ties between Russia and the 2016 Trump campaign.
In court documents being filed Thursday, the Justice Department said it is dropping the case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.” The documents were obtained by The Associated Press.
The Justice Department said it had concluded that Flynn’s interview by the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that the interview on January 24, 2017 was “conducted without any legitimate investigative basis.”
The DoJ and Mueller certainly have room for criticism in pursuing Flynn on a flimsy obstruction charge, but this argument is curious in relation to the special-counsel prosecution. Here’s the language from Rosenstein’s memo to Mueller, which looks as though the DoJ tethered Flynn itself:
The prosecution of Flynn specifically related to the explicit language of the second bullet point. That interview never should have taken place, but Rosenstein very explicitly made it part of Mueller’s portfolio. Why did Rosenstein do that? And if that’s the case, then it’s a legitimate question to ask why Mueller pursued it, even if it was within the scope of his appointment, especially when the FBI initially concluded that Flynn wasn’t lying.
However, that’s not the only action that took place today in court. Lead prosecutor Brandon Van Grack abruptly petitioned to be removed from the case before the DoJ filed for dismissal, a move that should raise some eyebrows on Capitol Hill:
The top prosecutor in the case against former national security adviser Michael Flynn withdrew abruptly and without explanation, a development that comes amid mounting pressure by President Donald Trump and his allies to have the entire matter thrown out of court.
Brandon Van Grack, one of special counsel Robert Mueller’s top investigators, informed Judge Emmet Sullivan that he would be quitting the case in a terse, one-sentence filing with the court.
That can be read in a couple of ways. Van Grack might have withdrawn in protest over the DoJ’s decision to end the prosecution. As one of Mueller’s team, Van Grack might have objected to that decision as a political move designed to placate Donald Trump — which is exactly how it will be viewed in some quarters.
On the other hand, Van Grack might have had other reasons to withdraw, especially with two separate probes into Mueller’s operations at the DoJ:
The move by Van Grack came four days before a court deadline for the prosecution to respond to an ongoing effort by Flynn’s defense team to have the case against him dismissed on the grounds of egregious government misconduct.
In recent weeks and months, Flynn’s defense — headed by Texas lawyer Sidney Powell — had escalated its attacks on Van Grack personally, alleging that he withheld evidence favorable to Flynn in defiance of an order from Sullivan requiring the prosecution to turn over such material.
A defense filing two weeks ago accused Van Grack of “incredible malfeasance” and of coercing Flynn’s guilty plea in the fall of 2017 by making “baseless threats” to indict Flynn’s son, Michael G. Flynn Jr.
It’s very possible that the disclosures from investigating US Attorney Jeffrey Jensen made Van Grack’s continued presence untenable. That might have been explained to Van Grack by someone high up at the DoJ — like AG William Barr, perhaps — or maybe Van Grack just read the writing on the wall.
This also leaves Judge Emmet Sullivan in an awkward position. Not all that long ago, Sullivan accused Flynn of treason when Flynn first came up for sentencing, even though Flynn was never accused of anything approaching such a crime. Sullivan issued a thinly veiled threat to throw the book at Flynn unless he did more cooperating with the DoJ and Mueller’s team, even though the latter expressed satisfaction with Flynn’s assistance. Sullivan then hinted at getting even tougher if Flynn withdrew his plea. What will Sullivan say now? He can’t press forward on a case that prosecutors want to drop, not without getting reamed by the court of appeals. Sullivan might have some answering to do on his own behavior at the end of this.
The bottom line is that Michael Flynn is now a free man again, or should be shortly. Has he been vindicated? That’s a tougher question, but let’s at least say that he’s not coming out as badly as Mueller, Rosenstein, James Comey, and the FBI are. He might even come out better than the DoJ, given the nature of this rather strongly worded statement against interests. It’s fair to wonder just how this decision got made, even if it’s also fair to wonder how Flynn ended up in the dock in the first place.
The Department of Justice's motion to dismiss Flynn's case is an extremely well written defense argument that would absolutely fail if made by the defense, and will be quoted extensively (to no avail) in future 1001 prosecutions. It's transparently corrupt.
— IncitementToResurrectionHat (@Popehat) May 7, 2020
Update: Looks like Van Grack’s on his way out of the DoJ, one way or the other:
It's not just the Flynn case.
Van Grack is withdrawing as counsel for the Govt in other cases as well.
I wouldn't be surprised if that's it for Van Grack at the DOJ. pic.twitter.com/tfBIrw8rxT
— Techno Fog (@Techno_Fog) May 7, 2020
That could still be a protest move, or something else. Whatever the issue, though, it’s clear that it goes beyond Michael Flynn — one way or the other.