The Justice Department didn’t merely abandon its case against President Donald Trump’s former national security adviser Michael Flynn on Thursday. It also reversed course on several key points about the case and renounced years of legal arguments put forward by special counsel Robert Mueller and career prosecutors.
After walking back those positions, political appointees at the Justice Department offered a new rationale for why the case should be dropped. The end result is closely aligned with Trump’s view; the President has repeatedly said Flynn didn’t do anything wrong and was mistreated by the FBI.
The Justice Department made the bombshell announcement in a court filing signed only by Timothy Shea, the US attorney in Washington, DC. Attorney General William Barr appointed Shea to the position this year after the departure of his predecessor, Jessie Liu. CNN reported that Liu was sidelined because Trump was unhappy with her handling of politically sensitive cases.
The Justice Department attributed many of its reversals to what it called “newly discovered” information that was surfaced during a Barr-ordered review of the case. After some of the materials were unsealed last week, Trump seized on the development, tweeting dozens of times about Flynn and publicly declaring that Flynn deserved to be exonerated.
Here are the major ways that the Justice Department shifted its views on Flynn:
Why was the FBI investigating Flynn?
The FBI was investigating Flynn’s communications with Russian government officials as part of the larger investigation into links between Trump’s presidential campaign and Russians. The overarching probe was launched in July 2016 and eventually became the Mueller investigation.
Then-FBI Director James Comey previously told Congress that he sent agents to question Flynn “to find out whether there was something we were missing about his relationship with the Russians.” The FBI was ready to close its collusion investigation into Flynn, but then top Trump officials started spreading false information in TV interviews about Flynn’s contacts with Russia.
Justice Department lawyers previously said that “the topic of sanctions,” which Flynn discussed with the Russian ambassador, “went to the heart of the FBI’s counterintelligence investigation.” In his phone calls, Flynn urged the Russians not to retaliate against new US sanctions, imposed by then-President Barack Obama as punishment for Russian interference in the 2016 election.
What the Justice Department says now:
In the new filing on Thursday, the Justice Department says the investigation into Flynn was no longer justified by the time Comey sent FBI agents to interview him on January 24, 2017.
“After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information … the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” the department wrote in its formal request to dismiss the criminal case.
After Trump fired Flynn, he repeatedly defended his former aide and said Flynn was “just doing his job” by talking to the Russians.
For the first time in Flynn’s legal case, the Justice Department agreed with that view, saying in Thursday’s filing that, “the calls were entirely appropriate on their face.” Barr told CBS News in an interview that Flynn’s calls were “laudable.”
Did Flynn lie to the FBI about Russia?
According to past court filings, Flynn told at least four lies during his FBI interview.
He agreed to a plea bargain in December 2017 and admitted to one count of lying. (As part of his cooperation deal, Flynn also admitted other illegal conduct regarding his pro-Turkey lobbying.)
Flynn said under oath that he was guilty of lying to the FBI. He made this sworn statement in 2017 and again in 2018, in front of two federal judges who handled different parts of his case.
Federal Judge Emmet Sullivan, who is currently overseeing the case, previously ruled that Flynn’s lie was “material,” or relevant, to the Russia investigation. Materiality is one of the key elements of the crime – prosecutors need to prove that the lie was relevant to the investigation.
What the Justice Department says now:
The Justice Department now says Flynn’s lies were not material to the investigation, and that he might not have been lying in the first place. Among other things, the filing cites comments from the FBI agents who interviewed him, who later said they weren’t certain if Flynn actually lied.
“The Government … does not believe Mr. Flynn’s statements were material even if untrue,” the filing says, reversing the position it held since 2017. “We (do) not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”
Did the FBI entrap Flynn?
Trump, Flynn’s lawyers, and their allies in right-wing media have fomented the conspiracy that Flynn was entrapped by anti-Trump partisans within the FBI and Justice Department, who duped him into lying because they wanted to throw him in jail and undermine Trump.
Flynn testified in 2018 that he knew it was a crime to lie during the interview, that he didn’t think his rights were violated, and that he didn’t want to challenge the circumstances of the interview.
But Flynn reversed course last year, hired new lawyers and tried to withdraw his guilty plea. Sometimes relying on conspiracy theories, they said investigators “suppressed evidence” and said they “virtually bankrupted him, and put his entire family through unimaginable stress.”
Justice Department lawyers defended the way the interview was handled, noting that the FBI agents gave Flynn “multiple opportunities” to correct his lies. The judge ruled that there wasn’t a secret government plot against Flynn, and said “the record proves” that Flynn wasn’t ambushed.
What the Justice Department says now:
Its position is now more aligned with Trump’s view of the case.
“The frail and shifting justifications for its ongoing probe of Mr. Flynn, as well as the irregular procedure that preceded his interview, suggests that the FBI was eager to interview Mr. Flynn irrespective of any underlying investigation,” the Justice Department said on Thursday.
The new filing also noted that FBI agents didn’t warn Flynn against lying, even though that isn’t required. They also noted that Flynn was dissuaded from bringing an attorney, which raises serious questions, but happens often when people are questioned by law enforcement.
In an interview with CBS News, Barr said Thursday that he believes the FBI kept its Flynn probe alive in 2017 “for the express purpose of trying to catch, lay a perjury trap for General Flynn.”
