‘Never Seen Anything Like This’: Experts Question Dropping of Flynn Prosecution

  

Category:  News & Politics

Via:  john-russell  •  2 months ago  •  20 comments

‘Never Seen Anything Like This’: Experts Question Dropping of Flynn Prosecution
“A pardon would have been a lot more honest,” said Samuel Buell, a former federal prosecutor who now teaches criminal law at Duke University. The law regarding what counts as “material” is extremely forgiving to the government, Mr. Buell added. The idea is that law enforcement is permitted to pursue possible theories of criminality and to interview people without having firmly established that there was a crime first.

S E E D E D   C O N T E N T




WASHINGTON — The Justice Department’s   decision to drop the criminal case against Michael T. Flynn , President Trump’s former national security adviser, even though he had twice pleaded guilty to lying to investigators, was extraordinary and had no obvious precedent, a range of criminal law specialists said on Thursday.



“I’ve been practicing for more time than I care to admit and I’ve never seen anything like this,” said Julie O’Sullivan, a former federal prosecutor who now teaches criminal law at Georgetown University.



The move is the latest in a series that the department, under Attorney General William P. Barr, has taken to undermine and dismantle the work of the investigators and prosecutors who scrutinized Russia’s 2016 election interference operation and its links to people associated with the Trump campaign.



The case against Mr. Flynn for lying to the F.B.I. about his conversations with the Russian ambassador was brought by the office of the former special counsel, Robert S. Mueller III. It had become a political cause for Mr. Trump and his supporters, and the president had signaled that he was considering a pardon once Mr. Flynn was sentenced. But Mr. Barr instead abruptly short-circuited the case.



On Thursday, Timothy Shea, the interim U.S. attorney in the District of Columbia, told the judge overseeing the case, Emmet G. Sullivan, that prosecutors were withdrawing the case. They were doing so, he said, because the department could not prove to a jury that Mr. Flynn’s admitted lies to the F.B.I. about his conversations with the ambassador were “material” ones.



The move essentially erases Mr. Flynn’s guilty pleas. Because he was never sentenced and the government is unwilling to pursue the matter further, the prosecution is virtually certain to end, although the judge must still decide whether to grant the department’s request to dismiss it “with prejudice,” meaning it could not be refiled in the future.



A range of former prosecutors struggled to point to any previous instance in which the Justice Department had abandoned its own case after obtaining a guilty plea. They portrayed the justification Mr. Shea pointed to — that it would be difficult to prove to a jury beyond a reasonable doubt that the lies were material — as dubious.



“A pardon would have been a lot more honest,” said Samuel Buell, a former federal prosecutor who now teaches criminal law at Duke University.



The law regarding what counts as “material” is extremely forgiving to the government, Mr. Buell added. The idea is that law enforcement is permitted to pursue possible theories of criminality and to interview people without having firmly established that there was a crime first.



James G. McGovern , a defense lawyer at Hogan Lovells and a former federal prosecutor, said juries rarely bought a defendant’s argument that a lie did not involve a material fact.



“If you are arguing ‘materiality,’ you usually lose, because there is a tacit admission that what you said was untrue, so you lose the jury,” he said.



No career prosecutors signed the motion. Mr. Shea is a former close aide to Mr. Barr. In January, Mr. Barr   installed him as the top prosecutor   in the district that encompasses the nation’s capital after maneuvering out the Senate-confirmed former top prosecutor in that office, Jessie K. Liu.



Soon after, in an extraordinary move, four prosecutors in the office abruptly quit the case against Mr. Trump’s longtime friend   Roger J. Stone Jr.   They did so after senior Justice Department officials intervened to recommend a more lenient prison term than standard sentencing guidelines called for in the crimes Mr. Stone was convicted of committing — including witness intimidation and perjury — to conceal Trump campaign interactions with WikiLeaks.



It   soon emerged   that Mr. Barr had also appointed an outside prosecutor, Jeff Jensen, the U.S. attorney in St. Louis, to review the Flynn case files. The department then began turning over F.B.I. documents showing internal deliberations about questioning Mr. Flynn, like what warnings to give — even though such files are usually not provided to the defense.



Mr. Flynn’s defense team has mined such files for ammunition to portray the F.B.I. as running amok in its decision to question Mr. Flynn in the first place. The questioning focused on his conversations during the transition after the 2016 election with the Russian ambassador about the Obama administration’s imposition of sanctions on Russia for its interference in the American election.



The F.B.I. had already concluded that there was no evidence that Mr. Flynn, a former Trump campaign adviser, had personally conspired with Russia about the election, and it had decided to close out the counterintelligence investigation into him. Then questions arose about whether and why Mr. Flynn had lied to administration colleagues like Vice President Mike Pence about his conversations with the ambassador.



Because the counterintelligence investigation was still open, the bureau used it as a basis to question Mr. Flynn about the conversations and decided not to warn him at its onset that it would be a crime to lie.   Notes from Bill Priestap , then the head of the F.B.I.’s counterintelligence division, show that he wrote at one point about the planned interview: “What’s our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?”



Mr. Barr   has let it be known   that he does not think the F.B.I. ever had an adequate legal basis to open its Russia investigation in the first place, contrary to the judgment of the Justice Department’s inspector general.



In   an interview on CBS News   on Thursday, Mr. Barr defended the dropping of the charges against Mr. Flynn on the grounds that the F.B.I. “did not have a basis for a counterintelligence investigation against Flynn at that stage.”



Anne Milgram , a former federal prosecutor and former New Jersey attorney general who teaches criminal law at New York University, defended the F.B.I.’s decision to question Mr. Flynn in January 2017. She said that much was still a mystery about the Russian election interference operation at the time and that Mr. Flynn’s lying to the vice president about his postelection interactions with a high-ranking Russian raised new questions.



But, she argued, the more important frame for assessing the dropping of the case was to recognize how it fit into the larger pattern of the Barr-era department “undercutting the law enforcement officials and prosecutors who investigated the 2016 election and its aftermath,” which she likened to “eating the Justice Department from the inside out.”



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JohnRussell
1  seeder  JohnRussell    2 months ago

We are suffering through the most corrupt administration in history, and that most definitely includes William Barr.  

I hope Barr is stupid enough to indict Comey, Mccabe and Strzok for something so that we can get all this ridiculousness out in the open once and for all. 

 
 
 
Dulay
1.1  Dulay  replied to  JohnRussell @1    2 months ago

I'll be interested to see if Judge Emmet G. Sullivan will overrule himself. In Dec. 2019 Sullivan ruled that Flynn's lies were material. 

https://int.nyt.com/data/documenthelper/6597-michael-flynn-ruling-brady-material/09adec234490b7ff0b7b/optimized/full.pdf#page=1

 
 
 
XDm9mm
1.2  XDm9mm  replied to  JohnRussell @1    2 months ago
We are suffering through the most corrupt administration in history,

Sorry JR...   we already did that from 2009-2017.  Need I remind you who was President then?

 
 
 
MUVA
2  MUVA    2 months ago

Some like corruption this seed and comments prove it.

 
 
 
Jeremy Retired in NC
3  Jeremy Retired in NC    2 months ago
"A pardon would have been a lot more honest,” 

A pardon would have triggered the left claiming that Trump is taking care of his cronies.  The DOJ dropping the charges amidst the declassification and revelation of the last administration illegal activity is far better.  

 
 
 
It Is ME
3.1  It Is ME  replied to  Jeremy Retired in NC @3    2 months ago
The DOJ dropping the charges amidst the declassification and revelation of the last administration illegal activity is far better.  

They've changed the narrative.

It's now …… "Trumps Cronies" are taking care of "Trumps Cronies". jrSmiley_10_smiley_image.gif

" Got my boys back ".....just isn't as popular as it once was. jrSmiley_98_smiley_image.gif

 
 
 
Jeremy Retired in NC
3.1.1  Jeremy Retired in NC  replied to  It Is ME @3.1    2 months ago

Seems the only ones that are changing their narrative are the Democrats.  But then again we've seen them change the narrative with each failed attempt to remove the POTUS.

And the precedent is there.  Not that anybody on the left is willing (or able) to do any research:

https://jonathanturley.org/2020/05/09/president-obama-declares-there-is-no-precedent-that-anybody-can-find-for-the-flynn-motion-he-may-want-to-call-eric-holder/

 
 
 
It Is ME
3.1.2  It Is ME  replied to  Jeremy Retired in NC @3.1.1    2 months ago
 
 
 
It Is ME
3.1.4  It Is ME  replied to  Jeremy Retired in NC @3.1.3    2 months ago

Pelosi Just doesn't want to talk about this, as Chucky Schumer curls up in the corner and cries !

 
 
 
Jeremy Retired in NC
3.1.5  Jeremy Retired in NC  replied to  It Is ME @3.1.4    2 months ago

Of course Pelosi doesn't want to talk about it.  She's guilty.  As far as Schumer, that sniveling little bitch just needs to go away.

 
 
 
bugsy
3.1.6  bugsy  replied to  It Is ME @3.1.4    2 months ago
Pelosi Just doesn't want to talk about this,

Probably why she does not want to bring the House back to Washington. She knows she will be wide open to questioning and she certainly doesn't want that.....because just like the Biden sexual assault charge, she will not answer any more questions about it..

 
 
 
bugsy
3.1.7  bugsy  replied to  Jeremy Retired in NC @3.1.5    2 months ago
As far as Schumer,

As much as a dumbass he is, I think he is irrelevant in most of this. Shitty Schiff had to go through Nancy to do pretty much everything he was doing. She knew from the beginning what the transcripts said, yet still gave the OK for Shiff to continue in his charade.

She is a co conspirator.

 
 
 
Jeremy Retired in NC
3.1.8  Jeremy Retired in NC  replied to  bugsy @3.1.7    2 months ago

I agree that Schiff is irrelevant but he was still an active participant that can't be dismissed.  

 
 
 
dennis smith
3.1.9  dennis smith  replied to  It Is ME @3.1.4    2 months ago

Is Pelosi still in the House. She seems to have disappeared and is letting her flunky Schiff take all the heat. 

 
 
 
dennis smith
3.1.10  dennis smith  replied to  bugsy @3.1.6    2 months ago

The tables have turned, the coming investigations are against the Dems regarding everything Flynn. 

Pelosi and Schumer are quiet, Schiff looks and acts more like Barney Fife every day with his goofy comments. Even Obama is trying to deflect from what he allowed his admin to do.

The dems are out of material and out of time. Perhaps in 2024 they will find a better candidate than Hillary or Biden.

 
 
 
bugsy
3.2  bugsy  replied to  Jeremy Retired in NC @3    2 months ago
The DOJ dropping the charges amidst the declassification and revelation of the last administration illegal activity is far better.  

And it STILL triggered the left claiming Trump is taking care of his cronies.

I honestly believe the Obama admin officials know that their little house of cards is collapsing around them, that's why all of a sudden many of them have gone stone cold quiet.

Sure wasn't that way during the 3 years of the Mueller "investigation".

 
 
 
Jeremy Retired in NC
3.2.1  Jeremy Retired in NC  replied to  bugsy @3.2    2 months ago
Sure wasn't that way during the 3 years of the Mueller "investigation".

During Bobbie's "investigation" they could control what was released and cover up their actions. Not so much now and they are freaking out.  

 
 
 
JohnRussell
4  seeder  JohnRussell    2 months ago
REPORTER: How will history look back on your decision to drop charges against Flynn?

BILL BARR: “Well, history is written by the winners. So it largely depends on who’s writing the history.”

Barr seems to be acknowledging his decision is not objectively "justice". If it was he wouldnt have to depend on his side writing "history". 

 
 
 
Jeremy Retired in NC
4.1  Jeremy Retired in NC  replied to  JohnRussell @4    2 months ago
Barr seems to be acknowledging his decision is not objectively "justice".

Given the charges are being dropped because the suspect was coerced, it's justice.  Just because YOU don't like it, doesn't change that fact.

 
 
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