FLYNN CASE: "MOTION TO DISMISS" BREAKDOWN.
Updated: Jul 27
MOTION TO DISMISS
[THE GOVERNMENT MOVES TO "DISMISS WITH PREJUDICE" THE CASE AGAINST GENERAL FLYNN.]
["In the formal legal world, a court case that is dismissed with prejudice means that it is dismissed permanently. A case dismissed with prejudice is over and done with, once and for all, and can't be brought back to court."]
THE MOTION - BY US ATTORNEY FOR DC, TIMOTHY SHEA
[ABRIDGED VERSION - EDITORIAL NOTES BETWEEN BRACKETS]
The Government has determined, based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.
Mr. Flynn entered a guilty plea to a single count of making false statements in a January 24, 2017 interview with FBI.
This crime, however, requires a statement to be not simply false, but “materially” false with respect to a matter under investigation.
It requires “probative weight,” whereby the statement is “reasonably likely to influence the tribunal in making a determination required to be made.”
The Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information".
[Flynn's] interview was [NOT] conducted with a legitimate investigative basis and therefore [the Government] does not believe Mr. Flynn’s statements were material even if untrue.
We not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.
Continued prosecution of the charged crime does not serve a substantial federal interest.
The Government respectfully moves to dismiss the criminal information with prejudice against Mr. Flynn.
[Flynn's FBI investigation began] “as part of the larger Crossfire Hurricane umbrella”.
“Crossfire Razor,” the investigation’s stated “goal” was to determine whether Mr. Flynn “was directed and controlled by and/or coordinated activities with the Russian Federation in a manner which is a threat to the national security and/or possibly a violation of the Foreign Agents Registration.
The FBI predicated the counterintelligence investigation of him on three facts: 1 Mr. Flynn’s service as a foreign policy advisor to the Trump campaign, 2 his publicly documented connection to state-affiliated Russian entities, and 3 the fact that he had traveled to Russia in December 2015.
After approximately four months of investigation, however, the FBI “determined that [Mr. Flynn] was no longer a viable candidate as part of the larger Crossfire Hurricane umbrella case”.
The numerous searches of holdings and investigative steps had at each step yielded “no derogatory information” on Mr. Flynn
The investigation had failed to produce “any information on which to predicate further investigative efforts.”
“The FBI is closing this investigation.”
Before the intended case closing took effect, the FBI learned of communications between Mr. Flynn and Russian ambassador Sergey Kislyak that had taken place in late December 2016 and which touched on matters of foreign policy.
By this time, Mr. Flynn had already been named by President-Elect Trump as his incoming National Security Advisor
[MOST IMPORTANT POINT:] The FBI had in their possession transcripts of the relevant calls.
Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership (“the 7th Floor”) determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act.
[A STATUTE THAT NOBODY HAS EVER BEEN PROSECUTED WITH.]
FBI Deputy Assistant Director Peter Strzok learned that “RAZOR’s closure” had not been timely executed, and the counterintelligence investigation into Mr. Flynn was, unexpectedly, still formally open.
Mr. Strzok immediately relayed the “serendipitously good” news to Lisa Page, the Special Counsel to FBI Deputy Director Andrew McCabe, remarking that “our utter incompetence actually helps us.”
Mr. Strzok, moreover, instructed agents to “keep it open for now” at the behest of “the 7th Floor.”
On January 12, 2017, the Washington Post reported the December 29 communications between Mr. Flynn and the Russian ambassador.
On January 15, Vice President-Elect Mike Pence stated in a news interview that Mr. Flynn had suggested that his conversation with Kislyak did not relate to sanctions.
FBI Director James Comey advised DOJ leadership of its investigation into Mr. Flynn,
Senior officials at both the FBI and DOJ had concerns that the incumbent White House officials’ descriptions of Mr. Flynn’s calls with Kislyak were not accurate.
[MAY I REMIND YOU THAT FBI HAD THE TRANSCRIPTIONS, SO THEY COULD NOT BE IN ANY DOUBT ABOUT ANYTHING.]
Comey took the position that the FBI would not notify the incoming Trump administration of the Flynn-Kislyak communications.
Deputy Attorney General Sally Yates and other senior DOJ officials took the contrary view and believed that the incoming administration should be notified.
Comey’s justifications for withholding the information from the Trump administration repeatedly “morphed,” vacillating from the potential compromise of a “counterintelligence” investigation to the protection of a purported “criminal” investigation.
The Deputy Attorney General, Director of National Intelligence, and Director of the Central Intelligence Agency all agreed that the FBI should notify the incoming Trump administration of what had actually been said on the calls.
Comey continued to refuse to brief the White House in a subsequent conversation with CIA Director John Brennan.
January 24, 2017.
Deputy Attorney General Sally Yates contacted Director Comey to demand that the FBI notify the White House of the communications.
When Director Comey called her back later that day, he advised her that the FBI agents were already on their way to the White House to interview Mr. Flynn.
[HERE THE JUDICIAL MOTION MAKES A FLASH BACK]
Mr. Strzok proposed to Bill Priestap, the FBI’s counterintelligence chief, that Mr. Flynn should be given a “defensive briefing” about an investigation under the Crossfire Hurricane umbrella or alternatively an “interview under light ‘defensive briefing’ pretext.”
Director Comey determined that they would go interview Mr. Flynn the following day without notifying either DOJ or the White House.
[COMEY:] “Something we, I probably wouldn’t have done or gotten away with in a  more organized administration.”
[BILL PRISTAP WAS STROZK'S BOSS, THE HEAD OF FBI COUNTER-INTELLIGENCE UNDER DEPUTY DIRECTOR MCCABE]
“Bill [Priestap]” had conducted “several conversations with Andy [McCabe]” because “he wanted to know why we had to go aggressively doing these things, openly.”
“Bill … brought [it] up – again, this time in front of D[irector Comey]” and that Deputy Director McCabe was “frustrated” and “cut him off.”
Priestap’s [handwritten] notes dated January 24 state, “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” “If we’re seen as playing games, WH will be furious. Protect our institution by not playing games.”
Deputy Director McCabe called Mr. Flynn to arrange the interview. He explained that recent media statements about his contacts with Kislyak merited a “sit down” and expressed the FBI’s desire to accomplish the interview “quickly, quietly and discretely as possible.”
Deputy Director McCabe further advised that if Mr. Flynn wished to have anyone else at the meeting, including the White House Counsel, the FBI would have to elevate the issue to DOJ.
Mr. Flynn, himself a former Director of the Defense Intelligence Agency, stated that he readily expected that the FBI already knew the contents of his conversations with the ambassador, stating: “you listen to everything they say.”
Mr. Flynn then agreed to meet with the interviewing agents in his office less than two hours later. He was “unguarded” in the interview and “clearly” viewed the agents as “allies.”
Nor did the agents give him, at any point, warnings that making false statements would be a crime.
When asked if he recalled any conversation in which he encouraged Kislyak not to “escalate the situation” in its response to American sanctions, Mr. Flynn responded uncertainly, stating, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’”
Mr. Flynn also stated that although it was possible, he did not recall any conversation in which the ambassador stated that Russia would moderate its response due to Mr. Flynn’s request.
After the interview, the FBI agents expressed uncertainty as to whether Mr. Flynn had lied. FBI agents reported to their leadership that Mr. Flynn exhibited a “very sure demeanor” and “did not give any indicators of deception.”
November 30, 2017, the Special Counsel’s Office filed a criminal information against Mr. Flynn charging him with a single count of making false statements in violation of 18 U.S.C..
Mr. Flynn pleaded guilty to that offense, but moved to withdraw that guilty plea on January 14, 2020.
Mr. Flynn also filed a “Motion to Dismiss Case for Egregious Government Misconduct and in the Interest of Justice,” and supplemented that motion on April 24 and 30, 2020 based on additional disclosures.
Both Mr. Flynn’s motion to withdraw his guilty plea and motion to dismiss the case remain pending before the Court.
[LEGAL GROUNDS FOR DISMISSAL.]
[THIS SECTION IS A CRITICAL ONE, IN WHICH IT IS DISCUSSED WHETHER OR NOT JUDGE EMMET SULLIVAN HAS DISCRETIONARY POWER OVER THE GOVERNMENT'S DECISION. HE HAS NOT, IT SEEMS]
Federal Rule of Criminal Procedure 48(a) permits the Government, “with leave of court,” to “dismiss an indictment, information or complaint.”
"Government may move to dismiss even after a complaint has turned into a conviction because of a guilty plea.”
The “leave of court” provision serves “primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial harassment’ of the defendant” through repeated prosecutions—a prospect not implicated by, as here, a motion to dismiss with prejudice.
The discretion accorded the DOJ under Rule 48(a) recognizes that “decisions to dismiss pending charges … lie squarely within the ken of prosecutorial discretion” and “‘at the core of the Executive’s duty to see to the faithful execution of the laws.’”
(“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”).
A court should not deny the Government’s motion to dismiss “based on a disagreement with the prosecution’s exercise of charging authority,” such as “a view that the defendant should stand trial” or “that more serious charges should be brought.”
Nor should a court second-guess the Government’s “conclusion that additional prosecution or punishment would not serve the public interest.”
The Government should not prosecute a defendant “unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”
Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation.
Because the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt, the Government now moves to dismiss the criminal information under Rule 48(a).
[Law] prohibits “knowingly and willfully ... mak[ing] 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.”
“[T]o be ‘material’ means to have probative weight”—that is, to be “reasonably likely to influence the tribunal in making a determination required to be made.”
[THIS] prevents law enforcement from fishing for falsehoods merely to manufacture jurisdiction over any statement—true or false—uttered by a private citizen or public official.
In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI.
Indeed, the FBI itself had recognized that it lacked sufficient basis to sustain its initial counterintelligence investigation by seeking to close that very investigation without even an interview of Mr. Flynn.
The FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA.
The communications between Mr. Flynn and Mr. Kislyak […] did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation.
Mr. Flynn, as the incumbent National Security Advisor and senior member of the transition team, was reaching out to the Russian ambassador in that capacity.
Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power.
Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States.
[THE CALLS] provided no factual basis for positing that Mr. Flynn had violated FARA. Nor did the calls remotely transform Mr. Flynn into a “viable candidate as part of the larger umbrella case” into Russian interference in the 2016 presidential election.
The FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak.
The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime.
This is apparent from the FBI’s rush to revive its old investigation rather than open and justify a new one.
Deputy Attorney General Yates thought that the FBI leadership “morphed” between describing the investigation into Mr. Flynn as a “counterintelligence” or a “criminal” investigation.
Having the ability to bootstrap the calls with Mr. Kislyak onto the existing authorization obviated the need for the “7th Floor” of the FBI to predicate further investigative efforts.
Nor did anything about the statements by Vice President Pence or Sean Spicer […] provide a separate or distinct basis for an investigation.
Whether or not Mr. Flynn had been entirely candid with the future Vice President or Press Secretary did not create a predicate for believing he had committed a crime or was beholden to a foreign power.
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
As is undisputed, the agents breached the common practice of arranging for the interview through the White House Counsel.
Deputy Director McCabe effectively discouraged Mr. Flynn from procuring counsel or even notifying the White House Counsel.
The interviewing agents failed to issue the common Section 1001 admonitions about lying to investigators.
Nor did the FBI even notify Acting Attorney General Yates that the interview was happening until the interviewing agents were already en route to Mr. Flynn.
Under these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are “material” to an investigation that seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.
Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.
[YOU SEE, ABOVE, MENTION TO THE JEFF JENSEN REVIEW OF THE CASE.]
[THIS SECTION BELOW IS A CRITICAL ONE.]
The Government appreciates that the Court previously deemed Mr. Flynn’s statements sufficiently “material” to the investigation. It did so, however, based on the Government’s prior understanding of the nature of the investigation, before new disclosures crystallized the lack of a legitimate investigative basis for the interview of Mr. Flynn.
And even if they 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.7
The statements by Mr. Flynn also were not material to the umbrella investigation of Crossfire Hurricane.
Most importantly, his interview had nothing to do with this subject matter and nothing in FBI materials suggest any relationship between the interview and the umbrella investigation.
[THEY DO NOT ADDRESS THE FALSIFICATION OF THE ORIGINAL 302 OF FLYNN'S INTERVIEW, OTHER THAN ALLUDE TO "EVIDENTIARY PROBLEMS".]
The evidentiary problems that have emerged create reasonable doubt as to whether Mr. Flynn knowingly and willingly lied to investigators during the interview.
Mr. Flynn previously pleaded guilty to making false statements. In the Government’s assessment, however, he did so without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him.
“The advocacy function of a prosecutor includes seeking exoneration and confessing error to correct an erroneous conviction.” Warney v. Monroe Cty
So in the final analysis, irrespective of Mr. Flynn’s plea, “prosecutors have a duty to do justice.”
“The citizen’s safety lies in the prosecutor who … seeks truth and not victims, who serves the law and not factional purposes, and who approaches [the] task with humility.”
The Government has concluded that the evidence is insufficient to prove its case beyond a reasonable doubt.
The Government therefore moves to dismiss the criminal information under Rule 48(a).
The Government respectfully moves under Rule 48(a) to dismiss the criminal information against Mr. Flynn.