The guiding tenet of the criminal justice system is that the government bears the burden of proving guilt beyond a reasonable doubt. All of the system’s rules are rooted in this principle. These include the prosecutor’s ethical obligation to dismiss a charge in the absence of a good-faith belief that a rational jury could convict the accused based on the government’s evidence.
The Department of Justice (DOJ) last week dismissed the prosecution of Michael Flynn, who fleetingly served as President Trump’s first national security adviser. In all the heated commentary over this decision, scant attention has been paid to the most compelling reason for vacating Flynn’s 2017 guilty plea to one count of making false statements to FBI agents: The government wouldn’t have a prayer of convicting Flynn at trial.
Allowing the conviction to stand would have been a travesty. This basic fact, this utter lack of sufficient evidence, is obscured by the DOJ’s heavy reliance on a legal rationale for dropping the case. In its 20-page memorandum in support of dismissal, the DOJ contends that any false statements by Flynn could not have been material because there was no legitimate basis to investigate or interview him. Federal law makes materiality an essential element of a false-statements charge.
The FBI opened a counterintelligence probe of Flynn in August 2016 on the absurd ground that he might be a clandestine Russian agent. (Flynn is a retired three-star Army general and decorated combat commander, who had then recently written a book identifying Russia as a committed global adversary of the United States.) This suspicion was frivolously supported.
The FBI’s then-director, James Comey, authorized closing the investigation in December 2016, and the paperwork to do so was completed on Jan. 4, 2017 — 20 days before the Flynn interview.
Then the FBI learned that Flynn, as an official in the Trump transition who was designated to become the president’s national security adviser, had had communications in December with Russian ambassador Sergey Kislyak. The government was monitoring Kislyak, and recordings showed that Flynn did nothing inappropriate; there was no ground to reopen or continue the counterintelligence investigation or to begin a criminal investigation.
Likewise, DOJ never would have charged Flynn criminally with violating the Logan Act — a moribund, unconstitutional prohibition against freelance diplomacy. In the DOJ’s 150-year history, the Logan Act has never been charged. No one has ever been convicted for violating it; there has been no case since 1852. To say it would be a preposterous basis for indicting a president-elect’s top security adviser puts it mildly.