Of all the unseemly and scandalous actions by the Department of Justice in the Trump era, the dismissal of charges against Michael Flynn is the worst.
Flynn was guilty: He pleaded guilty to lying and he said expressly he was pleading guilty because he was guilty. His conduct was inexcusable, particularly given his prior government service, and it jeopardized the national security. His prosecution was righteous and important.
The department’s decision Thursday to snatch defeat from the jaws of victory would be completely baffling were it not for the tweet assault on the prosecution from President Trump, and the department’s, or at least Atty. Gen. William Barr’s, record of genuflecting to Trump’s every idea of partisan, self-serving justice.
As it is, the only available hypothesis is that the move was as politically driven as it was unprecedented.
First, a quick review of Flynn’s guilt, and the importance of the prosecution. Some of Flynn’s defenders, including Trump, have suggested he did nothing wrong before he lied to the FBI. That is utter garbage.
Flynn, tapped by Trump as national security advisor, plainly carried on a rogue foreign policy in the weeks after the 2016 election but before Trump’s inauguration. In derogation of the then-current U.S. policy, he reached out to the Russian ambassador more than once and sought (successfully) to influence Russia’s official action in response to U.S. sanctions for Russian interference in the presidential election. Flynn's second contact involved an effort to quash a U.N. resolution on Israeli settlements. This kind of freelancing threatens the national security, and it flies in the face of the maxim that the United States has just one president at a time.
And then Flynn lied about it to the White House, which repeated that lie to the world. He lied to the newly elected vice president face to face, which gave Trump no choice but to fire him, an action that nobody questions. All that prevarication, of course, was the big tell that Flynn knew his contacts were improper.
The lies also gave the Russians ready ammunition to blackmail Flynn, a huge concern in itself. They knew he lied, that lying was a firing offense, and they therefore had a card to play against him anytime, a way to pressure him to play ball with them or lose his job in a public scandal. Blackmail potential was what caused then-Deputy Atty. Gen. Sally Yates to warn the incoming Trump administration that it had a problem on its hands.
When the FBI learned of Flynn’s efforts, it had no choice but to open a counterintelligence investigation. Why was the incoming national security advisor playing footsie with the Russian government? The FBI inspector general found that the investigation was adequately predicated, another point nobody has challenged. (The Logan Act, which critics note is rarely used, was also cited as a predicate for the investigation, but Flynn wasn’t charged under it.)
Flynn’s defenders have seized on notes the FBI prepared for the Flynn interview that include a comment about getting Flynn to lie. That isn’t a sign of entrapment or "deep state" machinations; it is by-the-book agency practice. The investigators' first goal was to get Flynn to admit to his rogue conduct. Failing that, they would have wanted to lock in the lie, both to neutralize the national security problems it created and to be in a position to prosecute. To do anything else would have been professional malpractice.
Flynn’s attempt — buoyed by Trump’s anti-FBI obsessions and abetted by a now-sycophantic Justice Department — to put the government on trial and portray himself as the victim of unjust, nefarious overreach is itself an attack on our justice system. Just as the system properly rewards prompt acceptance of responsibility, it properly rejects false exculpatory campaigns that undermine the public’s confidence in the justice system.
It is no wonder that the department’s announcement of dropping the Flynn case was preceded by the quieter motion to withdraw by one of the prosecutors in the Flynn matter, whose many years of hard work and forbearance were rewarded today with a swift kick in the teeth.
And here’s another indication that something is rotten at 950 Pennsylvania Ave.: The way the department explains its conduct doesn’t pass the smell test. The motion submitted to the judge in Flynn’s perjury case claims that the FBI interview was “untethered to, and unjustified by, the FBI's counterintelligence investigation into Mr. Flynn” and that the interview was "conducted without any legitimate investigative basis.” That flatly contradicts the statements of the agents and prosecutors on the case.
U.S. District Judge Emmet G. Sullivan will have to approve the motion to dismiss, and it’s a good bet that he will have plenty of questions about today’s about-face.
As for the the Department of Justice, many of its alumni of all parties and stripes have reacted with passionate and nearly unanimous outrage. It’s tempting in a travesty such as this to express sadness, or even heartbreak, about what has befallen the department, its utter departure from its rule-of-law mission. But sadness and even heartbreak is too mild and tender a sentiment for what happened Thursday. Far more than unfortunate, the decision is sickening.
Harry Litman is a former U.S. attorney and host of the podcast "Talking Feds." @harrylitman