Oral arguments in the Justice Department’s motion to compel the federal judge to dismiss the case against Michael Flynn have been set for June 12 before the U.S. Court of Appeals for Washington, D.C.
The three-judge panel hearing the case will consist of judges appointed by Presidents George H.W. Bush, Obama and Trump.
On May 7 the DOJ moved to drop its case against the former national security adviser, in a stunning development that came after internal memos were released raising serious questions about the nature of the investigation that led to Flynn’s late 2017 guilty plea of lying to the FBI.
The announcement came in a court filing “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information,” as the department put it. DOJ officials said they concluded that Flynn’s interview by the FBI 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.”
The retired Army lieutenant general for months has been trying to withdraw his plea, aided by a new attorney aggressively challenging the prosecution’s case and conduct. But, the case has been plodding through the court system with no resolution ever since his original plea, even amid speculation about whether President Trump himself could extend a pardon.
Breadcrumbs were being dropped in the days preceding the decision that his case could be reconsidered. Documents unsealed a week ago by the Justice Department revealed agents discussed their motivations for interviewing him in the Russia probe – questioning whether they wanted to “get him to lie” so he’d be fired or prosecuted, or get him to admit wrongdoing.
Flynn allies howled over the revelations, arguing that he essentially had been set up in a perjury trap. In that interview, Flynn did not admit wrongdoing and instead was accused of lying about his contacts with the then-Russian ambassador – to which he pleaded guilty.
The latest DOJ filing noted Flynn’s false statement plea pertained to a crime that required a statement “to be not simply false, but ‘materially’ false with respect to a matter under investigation.” The filing showed that the government “is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.”
The U.S. attorney reviewing the Flynn case, Jeff Jensen, recommended dropping the case to Attorney General William Barr last week and formalized the recommendation in a document this week.
“Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” Jensen said in a statement. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”
President Trump reacted from the Oval Office just minutes after the DOJ filing surfaced. “He was an innocent man… Now, in my book, he’s an even greater warrior,” Trump said, while criticizing Obama administration officials. “They’re human scum. … It’s treason.”