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Why does DOJ want to drop its case against Michael Flynn?

Two and a half years after former National Security Adviser Michael Flynn pleaded guilty to lying to the FBI about his contact with Russian officials, the Justice Department has asked a federal judge to drop the case against him. Judy Woodruff talks to Neal Katyal, who was acting solicitor general in the Obama administration, and Brett Tolman, a former U.S. attorney for the district of Utah.

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  • Judy Woodruff:

    Now to another story making headlines: a stunning reversal.

    Two-and-a-half years after Michael Flynn pleaded guilty to lying to the FBI about contacts he had with the Russian ambassador, today, the Department of Justice asked a federal judge to drop the case against President Trump's former national security adviser.

    In the court filing, U.S. attorney Timothy Shea wrote: "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."

    President Trump reacted to the news this afternoon.

  • President Donald Trump:

    I didn't know that was happening at this moment. I felt it was going to happen just by watching and seeing, like everybody else does.

    He was an innocent man. He is a great gentleman. He was targeted by the Obama administration. And he was targeted in order to try and take down a president. And what they have done is a disgrace. And I hope a big price is going to be paid.

  • Judy Woodruff:

    To help us examine the Justice Department decision, I'm joined now by Neal Katyal. He served as acting solicitor general in the Obama administration. And Brett Tolman, he is a former federal prosecutor. He also worked as chief counsel for Republicans on the Senate Judiciary Committee.

    Gentlemen, thank you both for being here.

    Brett Tolman, to you first.

    How could a case, after two-and-a-half years, when General Flynn pled guilty, suddenly disintegrate?

  • Brett Tolman:

    Well, you know, the disintegration comes as a result of, I think, an honest assessment of the facts.

    And what I mean by that is you have to understand what the facts are at the time when the decisions were made. Here, there's no question it's not just about misconduct of the FBI. There's that. It's concerning. There are statements, there are notes. We have all seen them.

    We're concerned when an FBI agent asks the question, what's our goal? Is it to get somebody to do something criminal, as opposed who, what if they lie in our investigation? What will happen? Instead, he said, are we going to get them to lie?

    The problem, however, I think — and you asked the key question — is, how does a prosecution disintegrate? It disintegrates because you exercise proper prosecutorial discretion.

  • Judy Woodruff:

    Well, Neal Katyal, we know what Brett Tolman is referring to is information that FBI agents may have been asking questions, planning this investigation in a way that was improper.

    But at its core, why is it that this case should stand up? You read the filing by the Justice Department, and they're saying that this is something they can't stand by anymore.

  • Neal Katyal:

    Yes, I don't think the Justice Department's filing today stands up.

    I think it's a devastating decision, Judy, that guts the rule of law. This is a president who has been trying to interfere with this prosecution since the start. He told Jim Comey, let him go, and stuff like that.

    That was the whole reason to have a special counsel investigation, to assure that there would be an independent investigation. And nothing, I think, is more corrosive than the idea that the Justice Department is now weaponized to help Trump's friends and hurt his enemies.

    And here the evidence is really overwhelming. First of all, Flynn admitted himself twice in open court that he did it in two separate years, 2017 and 2018. And this isn't like some Obama prosecution. This is the FBI and Justice Department, and that prosecution was signed off by multiple checks.

    First, you have line attorneys, career prosecutors doing so. Then you had Trump's own guy, the deputy attorney general, Rod Rosenstein, signing off on it. And then you had a federal judge, Judge Sullivan, a very respected judge, also signing off on this.

    By contrast, today's decision, not a single line prosecutor signs that document. Indeed, the line prosecutor — the prosecutor, Brandon Van Grack, actually withdraws.

    Something is rotten in Denmark here.

  • Judy Woodruff:


  • Neal Katyal:

    This is really, really devastating and corrosive to the rule of law.

  • Judy Woodruff:

    And what about that, Mr. Tolman?

    Because what we have is a process that involved a number of people over a period of months has now been done away with by one prosecutor, under — acting under, presumably, the direction of the attorney genera.

    And we have accusation that the Justice Department has now been completely politicized.

  • Brett Tolman:

    Well, I'm glad Neal brought up the politicization of the Justice Department. There's no question. Jim Comey was at the heart of that political response.

    If you look at what he did, he sent in investigators with an agenda after the Department of Justice had already made a determination that there was not a Logan Act violation at issue and there was not a FARA Act issue to be investigated.

    So they sent them in with the strict purpose of being able to find something that they could bring. Now, I'm going to tell you, in Neal's world, then, no innocent person ever pleads guilty, and no misconduct ever occurs, and no prosecutor makes a mistake.

    Here, a big mistake was made. And you can argue as much as you want that Mr. Flynn appeared in court. There are other reasons why somebody would plead guilty. And I have seen it, having been in the criminal justice system 20 years.

    This was the right decision, not a political decision. And the individuals who reviewed this were reviewing the evidence at issue, absent any political mandate.

  • Neal Katyal:

    Of course I believe…


  • Judy Woodruff:

    You want to respond to that, Neal Katyal?

  • Neal Katyal:


    Of course I believe that there are sometimes people who plead guilty when they shouldn't. But when you have something like someone like this, with massive financial resources, who served his country as a general and has been accused of lying to the FBI, and he agrees to plea twice?

    Come on. Of course not. You fight for your honor in that circumstance. You don't plead guilty when you're someone like that with all the resources and the like.

    And, look, if they were so sure they couldn't make the case, which sounds thoroughly bizarre, since — true — since Flynn's own statements would be admissible in court, including his plea, let them prove it out in court and see what happens.

    But the idea you truncate that at the get-go, and for this one prisoner — there are 172,000 federal prisoners serving their sentences right now. But you have this one person who, magically, the Justice Department happens to single out who happens to be Trump's pal and ally.

    There's something seriously deeply, deeply wrong that has happened here.

  • Judy Woodruff:

    And Brett Tolman, quickly going back…


  • Brett Tolman:

    Yes. Sorry. Just briefly…

  • Judy Woodruff:

    Go ahead.


  • Brett Tolman:

    This same analysis was entirely absent when this same Justice Department determined not to go forward on the prosecution of Andrew McCabe, admittedly having found to have lied by the Office of Inspector General.

    It should give us great comfort that a decision is made in the McCabe case to not bring a case and a decision is made now to reverse a wrong that was going forward. It's political to say anything otherwise.

  • Judy Woodruff:

    I want to — we have only got a few seconds left.

    I want to ask both of you what you expect Judge Emmet Sullivan to do.

    Neal Katyal?

  • Neal Katyal:

    I think the judge should do what last year, when a different Justice Department set of attorneys had to withdraw because of lies the Trump administration had made, inquire into it.

    And so I expect Judge Sullivan will inquire into, why is this attorney withdrawing? And he, under Rule 48, has to approve the dismissal of this prosecution. And I think he has already suggested that — or already held that this evidence is material and the like.

    And so I think there should be a searching inquiry as to what happened here today.

  • Judy Woodruff:

    And, Brett Tolman, I mean, the judge — this is — the final decision is in the hands of the judge, correct?

  • Brett Tolman:

    Yes, it is.

    This same judge should dismiss this case for simply the Brady violations that have occurred in the case. He should know. He's the one who warns the government to make sure they turn everything over, having ruled on the prosecution of Ted Stevens case.

    So I think the decision is easy for him at this point.

  • Judy Woodruff:

    Brett Tolman, Neal Katyal, we thank you both.

  • Brett Tolman:

    Thank you.

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