By Dareh Gregorian and Tom Winter (NBC News)
The Justice Department is dropping criminal charges against Michael Flynn, President Donald Trump's former national security adviser.
In documents filed Thursday in federal court in Washington, D.C., the Justice Department said it was recommending that the judge dismiss the criminal case "after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information."
"The Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI's counterintelligence investigation into Mr. Flynn," the filing said.
Flynn pleaded guilty in 2017 to lying to the FBI as part of special counsel Robert Mueller's investigation of Russian interference in the 2016 election.
The filing said, "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."
Flynn tweeted out a video of his grandson waving an American flag Thursday evening, along with the message "...And JUSTICE for ALL."
The filing by U.S. Attorney Timothy Shea was submitted about an hour after the original prosecutor, Brandon Van Grack, filed papers withdrawing from the case.
Attorney General William Barr, who repeatedly criticized the Russia inquiry, had asked the U.S. attorney in St. Louis, Jeff Jensen, to review the case.
In a statement, Jensen said: "I concluded the proper and just course was to dismiss the case. I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed."
In an interview with CBS News, Barr said, "Our duty, we think, is to dismiss the case."
"A crime cannot be established here," he continued, adding that "people sometimes plead to things that turn out not be crimes."
It's not the first time senior Justice Department officials have intervened in Flynn's case during Barr's tenure. NBC News has reported that officials also stepped in in January, changing the government's sentencing recommendation for Flynn from six months in jail to probation.
Asked by CBS whether he was doing the president's bidding in the case, Barr said, "I'm doing the law's bidding."
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Trump told reporters in the Oval Office that he was happy about the Justice Department's recommendation.
"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," Trump said.
"He was an innocent man," he said of Flynn. "He is a great gentleman."
House Speaker Nancy Pelosi, D-Calif., said that "Barr's politicization of justice knows no bounds" and that his "Justice Department is dropping the case to continue to cover up for the President."
The chairman of the House Judiciary Committee, Jerry Nadler, D-N.Y., called the move "outrageous."
"The evidence against General Flynn is overwhelming. He pleaded guilty to lying to investigators. And now a politicized and thoroughly corrupt Department of Justice is going to let the President's crony simply walk away," Nadler said in a statement.
The judge, Emmet Sullivan, still has to sign off on the motion. Flynn reaffirmed his guilty plea before Sullivan in 2018, and the judge told him at a sentencing hearing that wound up being delayed that "I'm not hiding my disgust, my disdain for this criminal offense."
Flynn moved to withdraw his guilty plea this year, arguing that he hadn't intentionally lied and that his prosecution was in "bad faith."
Trump said in March that he was "strongly considering" pardoning Flynn, who initially cooperated with Mueller's investigation before later contending that he'd been railroaded.
Shea's filing said the FBI had opened a counterintelligence investigation into Flynn in August 2016 based in part on his "publicly documented connection to state-affiliated Russian entities." The agency was preparing to close down the inquiry in early January 2017 after it didn't find any "derogatory information," but that changed when investigators reviewed transcripts of his phone calls with Russia's ambassador to the U.S. in late December 2016.
In one of the calls, Flynn asked the ambassador, Sergey Kislyak, whether Russia would hold off on retaliatory sanctions against the U.S. because Trump would reverse the Obama administration's sanctions punishing Russia for its election meddling when he was in office.
Flynn denied having made the request to White House officials, including Vice President Mike Pence, who repeated the denial publicly. That led James Comey, then the FBI director, to order agents to interview Flynn about the calls, and Flynn lied about the substance of his conversations.
Shea's filing contended that Flynn's statements weren't "material" to any FBI investigation because the FBI knew what Flynn had said.
"In light of the fact that the FBI already had these transcripts in its possession, Mr. Flynn's answers would have shed no light on whether and what he communicated with Mr. Kislyak," the filing said.
"Under these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are 'material' to an investigation that — as explained above — seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn."
Former FBI Deputy Director Andrew McCabe said the agency was "obligated" to talk to Flynn.
"The Department's position that the FBI had no reason to interview Mr. Flynn pursuant to its counterintelligence investigation is patently false, and ignores the considerable national security risk his contacts raised. Moreover, the Department's position contradicts the findings by both the Special Counsel and the Office of the Inspector General," McCabe said. He called the Justice Department's move "pure politics designed to please the president."
Shea's filing also said Comey disregarded protocol and sent the agents without notifying or coordinating with the Justice Department.
"Acting Attorney General [Sally] Yates was 'flabbergasted' and 'dumbfounded,' and other senior DOJ officials 'hit the roof' upon hearing of this development," the filing said.
Yates warned the White House that Flynn was susceptible to blackmail from Russia, and he wound up resigning after 24 days on the job as national security adviser.
"Unfortunately, because of the fast pace of events, I inadvertently briefed the Vice President Elect and others with incomplete information regarding my phone calls with the Russian Ambassador. I have sincerely apologized to the President and the Vice President, and they have accepted my apology," Flynn said in his resignation letter.
Trump said he fired Flynn for lying to Pence.
"I had to fire General Flynn because he lied to the Vice President and the FBI," Trump tweeted. "He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!"
Trump adviser Hope Hicks told Mueller's investigators that the president thought Flynn had "bad judgment."
Trump said Thursday that he was "very happy" for Flynn and called the people who prosecuted him "human scum."
"He was targeted by the Obama administration, and he was targeted in order to try and take down a president. And what they've done is a disgrace, and I hope a big price is going to be paid," he said. "The Obama administration Justice Department was a disgrace. And they got caught, they got caught. Very dishonest people, but much more than dishonest. Treason. It's treason."
Comey, whom Trump fired in May 2017, tweeted: "The DOJ has lost its way. But, career people: please stay because America needs you. The country is hungry for honest, competent leadership."
CORRECTION (May 7, 2020, 7:22 p.m. ET): An earlier version of this article misstated the first name of the U.S. attorney who submitted the Justice Department filing suggesting that the charges be dropped. He is Timothy Shea, not Thomas.
