Former FBI Director James Comey lamented that the “DOJ has lost its way” as he expressed disappointment over the news that the Justice Department moved Thursday to drop the case against former White House national security adviser Michael Flynn.
“The DOJ has lost its way,” Comey tweeted just after the Justice Department filed the motion. “But, career people: please stay because America needs you.”
Comey, who led the FBI at the time the bureau began investigating Flynn, said: “The country is hungry for honest, competent leadership.”
Republicans hit back at the comments from the former FBI director, whom President Trump fired in May 2017.
"Comey still believes unelected bureaucrats -- not the American people -- should get to decide who runs the country & will break any law or protocol to subvert our choice. Imagine being this sanctimonious after all that's come out," tweeted Elizabeth Harrington, a spokeswoman for the Republican National Committee (RNC).
The announcement about Flynn's case 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.
In late 2017, Flynn pleaded guilty to making false statements during a White House interview with FBI agents. But his team has sought to withdraw his guilty plea, citing "egregious" FBI misconduct.
In filings Thursday, DOJ officials said they concluded that Flynn's 2017 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.”
Even though the Justice Department has moved to drop the case, the federal judge overseeing the case still has to make a final determination over whether or not to dismiss it.
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 Trump himself could extend a pardon.
The DOJ move to dismiss the case would appear to put an end to that process.
Earlier Thursday, the top prosecutor on the case, Brandon Van Grack, abruptly withdrew from the case, without explanation, in a brief filing with the court.
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 he was essentially 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 stated noted Flynn's false statement plea pertains to a crime that requires a statement "to be not simply false, but 'materially' false with respect to a matter under investigation." 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.
Meanwhile, DOJ’s filing revealed that the FBI opened a counterintelligence investigation into Flynn on August 16, 2016 "as part of the larger Crossfire Hurricane umbrella" investigation into the Trump campaign, the filing states.
The FBI predicated the counterintelligence investigation of Flynn on "an articulable factual basis," which according to the filing including: Flynn's service as a foreign policy adviser to the Trump campaign, his publicly documented connection to state-affiliated Russian entities, and that he had traveled to Russia in December 2015.
But according to the filing, after four months of investigating Flynn, the FBI determined he was "no longer a viable candidate as part of the larger Crossfire Hurricane umbrella case" and prepared to close the investigation.
In early January 2017, the FBI had drafted a "closing communication" to effect the termination of the case, which noted the specific "goal" and predication for ht investigation. It also laid out investigative steps which yielded "no derogatory information" on Flynn.
"The investigation had failed to produce 'any information on which to predicate further investigative efforts,'" the filing said.
The draft said that no interview of Flynn was required "as part of the case closing procedure," before concluding with: "The FBI is closing this investigation.”
The filing noted, however, that the document also stated that "If new information is identified or reported to the FBI regarding the activities of CROSSFIRE RAZOR, the FBI will consider reopening the investigation if warranted.”
But before the intended case closing took effect, the filing stated that the FBI learned of communications between Flynn and Russian ambassador Sergey Kislyak “that had taken place in late December 2016 and which touched on matters of foreign policy.”
The filing stated that the FBI had in their possession transcripts of the "relevant" calls between Flynn and the Russian ambassador.
The FBI, at the time, considered opening a new criminal investigation based on a potential violation of the Logan Act. The filing, though, stated that “the FBI never opened an independent FBI criminal investigation.”
Meanwhile, 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, calling him an "innocent man."
“He was an innocent man... Now in my book he’s an even greater warrior," Trump said Thursday, while criticizing Obama administration officials. “They’re human scum. ... It’s treason.”
Aside from swiftly being ensnared in Mueller’s investigation in the fallout from that interview, Flynn was fired from his prominent post as national security adviser in February 2017. The resignation came as he was accused of misleading Vice President Pence and other senior White House officials about his communications with Kislyak.
Flynn’s communications with Kislyak in December 2016 had been picked up in wiretapped discussions, unbeknownst to him. The FBI agents in January 2017 questioned him on the communications, and later used his answers to form the basis for the false statement charge and his guilty plea.
Flynn's supporters have insisted he is innocent but was pressured to plead guilty when his son was threatened with prosecution and he exhausted his financial resources. The release of the handwritten FBI notes fueled accusations from Flynn's defenders that agents did not conduct themselves properly in the case.