National security lawyer blows apart key Justice Dept argument in dismissing Mike Flynn's charges

A former national security prosecutor blew apart the Justice Department's reasoning for dismissing the case against Michael Flynn.

Flynn, a retired U.S. Army general and President Donald Trump's first national security adviser, pleaded guilty to lying to FBI agents, and former U.S. Attorney Barbara McQuade wrote a column for Lawfare unraveling the Department of Justice's claim that the investigation was not properly "predicated."

"Key to the Justice Department’s argument in its motion to dismiss is the fact that, after four months of investigation without finding any derogatory information, the FBI was prepared to close its case on Flynn," McQuade wrote. "A draft internal FBI document dated Jan. 4, 2017, shows that the bureau had sketched out a memo closing the probe, though the document includes the usual caveat that if new information were identified, the FBI would consider reopening the investigation."

New information turned up a short time after, when the FBI learned that Flynn had spoken to Russian Ambassador Sergey Kislyak in late December 2016.

"According to the Justice Department’s motion, the FBI had transcripts of the relevant calls, likely obtained through surveillance of Kislyak authorized by the Foreign Intelligence Surveillance Court," McQuade wrote. "By this time, Flynn had been named as Trump’s national security adviser."

The Justice Department inspector general has already found the Flynn investigation to be predicated, as part of a probe of fellow Trump campaign operatives Carter Page, George Papadopoulos and Paul Manafort and their possible ties to Russia as part of the FBI's investigation of 2016 election interference.

"The Justice Department now insists that the Kislyak call did not establish adequate predication for the FBI to conduct this interview," McQuade wrote. "But there was no need for new predication for the interview — because predication had already been established. The case was still open after having been properly predicated, as found by the inspector general."

The Flynn interview in late January was "perfectly appropriate," McQuade said, and compared that to an interview with Hillary Clinton just before the conclusion of the investigation into her emails.

"Clinton’s FBI interview was the last step in the investigation before it was closed — and then reopened months later," McQuade wrote.

Even if a new predication were required, McQuade argued that Flynn's requests to Kislyak ahead of President Donald Trump's inauguration involved a potential criminal violation of the Logan Act and false statements made to Vice President Mike Pence.

"By lying to Pence about facts known to Russia, Flynn had compromised himself as national security adviser," McQuade wrote. "Flynn, who had access to the nation’s most sensitive secrets, was now susceptible to blackmail by a hostile foreign adversary. Surely this constitutes 'an articulable factual basis for the investigation that reasonably indicates' a threat to the national security."