The criminal case against Michael Flynn, President Trump’s disastrous first national security advisor, took the latest of many twists Thursday when the Justice Department moved to drop the prosecution against him. Never mind that Flynn pleaded guilty to lying to the FBI about his conversations with the Russian ambassador between the 2016 election and Trump’s inauguration. (He later tried to withdraw the plea and have the charge dismissed.)
In a motion filed with a federal court, Timothy Shea, the U.S. attorney in Washington, D.C., moved to dismiss the case against Flynn because “continued prosecution of this case would not serve the interests of justice.” Shea said that the interview that led to Flynn’s guilty plea was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.” Shea also said that Flynn’s statements during the interview, even if untrue, weren’t “material."
Given the recent history of the Trump Justice Department — including the softening of a sentencing recommendation for Trump loyalist Roger Stone — many Americans may find it hard to take that conclusion at face value. Either Congress or a federal court — or both — need to scrutinize the department’s case for clearing Flynn and make sure that politics played no part.
On Thursday, Trump said he didn’t know that the Justice Department motion “was happening at this moment. I felt it was going to happen just by watching and seeing, like everybody else does.” Despite the fact that Trump said he fired Flynn for lying to Vice President Mike Pence and the FBI about his Russian contacts, Trump has expressed sympathy for Flynn and even floated the possibility of a presidential pardon.
As for the Justice Department, Atty. Gen. William Barr asked Jeffrey Jensen, the U.S. attorney in St. Louis, to conduct a review of the case against Flynn. Jensen said on Thursday that "I concluded the proper and just course was to dismiss the case. I briefed Atty. Gen. Barr on my findings, advised him on these conclusions, and he agreed.”
In his motion, Shea tried to preempt any decision by a judge to refuse to dismiss the charges, arguing that a court should not deny a motion to dismiss “based on a disagreement with the prosecution’s exercise of charging authority” or because the judge believes the defendant should stand trial. But, as University of Texas law professor Stephen I. Vladeck pointed out, federal rules of criminal procedure say that dismissals are made with “leave of court” — that is, a judge’s permission.
But even if the court agrees to dismiss the case, the political overtones demand an effort by Congress to satisfy itself that considerations of law, not politics, drove this decision. Rep. Jerrold Nadler (D-N.Y.) said Thursday that he will question Barr about the decision. Nadler will also ask the Justice Department's inspector general to conduct an investigation. If Barr is confident that the department has acted correctly, he should welcome such an investigation.