Bombshell documents showing FBI officials discussed whether they wanted to interview Michael Flynn in order to “get him to lie” have the potential to unravel the Justice Department’s case against the former national security adviser entirely, former federal prosecutors and legal analysts told Fox News on Thursday.
The documents, unsealed late Wednesday, revealed that top FBI officials openly questioned if their “goal” in interviewing Flynn in January 2017 was “to get him to lie, so we can prosecute him or get him fired.”
The handwritten notes were penned by the FBI’s former head of counterintelligence Bill Priestap after a meeting with then-FBI Director James Comey and then-FBI Deputy Director Andrew McCabe, and before Flynn’s interview.
Former federal prosecutors told Fox News that the documents reveal “exculpatory” material that could cause the case to be dismissed.
“The Flynn case needs to be dismissed,” former U.S. Attorney for Utah Brett Tolman told Fox News. “It is not only exculpatory evidence that was withheld, which shows the innocence of Flynn, but it is evidence that they created out of nothing. The investigation and case are for an illegal purpose.”
Tolman added that FBI officials are “authorized to investigate criminal activity, not to create the crime by manipulating the target and or the facts.”
“They were doing this to ‘make him lie’ in order to prosecute him or ‘get him fired,’” Tolman added.
The notes suggested that agents also considered getting Flynn “to admit to breaking the Logan Act” when he spoke to former Russian Ambassador Sergey Kislyak during the presidential transition period.
The Logan Act is an obscure statute that has never been used in a criminal prosecution and was intended to prevent individuals from falsely claiming to represent the United States government abroad.
"What is our goal?" one of the notes read. "Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
"If we get him to admit to breaking the Logan Act, give facts to DOJ + have them decide," another note read. The memo appears to weigh the pros and cons of pursuing those different paths, while cautioning: "If we’re seen as playing games, WH [White House] will be furious.”
Unclear at this stage is whether a decision on the future of the case could come from U.S. District Judge Emmet Sullivan of the District of Columbia or the Justice Department (DOJ) itself.
“I don’t think the judge will throw the case out, as a matter of law, but what he should do is vacate the plea, which puts the ball in the Justice Department’s court,” former Assistant U.S. Attorney for the Southern District of New York Andy McCarthy told Fox News.
“The question to the DOJ is then, do you dare come into federal court with this piece of garbage case with everything we now know about all of the misconduct about how they fiddled with the 302 [interview summary], the renegade interview orchestrated outside of protocol and the fact this was an obvious perjury trap where they had no reason to be investigating this guy?” McCarthy continued. “And I think the Justice Department’s answer to this question is they should dismiss the case.”
Flynn earlier this year moved to withdraw his guilty plea for making false statements to the FBI regarding his communications with Kislyak. His legal team, at the time, said that the move was “because of the government’s bad faith, vindictiveness and breach of the plea agreement.”
“In most cases, a motion to withdraw a guilty plea falls apart because, in essence, the defendant is saying there is something fundamentally wrong with the process of taking his or her plea -- that becomes very personal to the judge,” Jim Trusty, a former senior Justice Department official and now-white collar criminal defense attorney for Ifrah Law, told Fox News. “Typically, a defendant loses a motion to withdraw a guilty plea and loses the benefits of the plea agreement and is stuck with the conviction in run-of-the-mill cases.”
“But here, there may be a death by a thousand cuts,” Trusty continued. “There is not one single moment that has transformed this into a problematic case from the judge’s perspective or from Attorney General Barr’s, but there continues to be information, such as this latest document dump, that calls into question whether the government played fair.”
Sullivan, according to legal analysts, is known to be unpredictable. Sullivan presided over the federal corruption case involving the late Republican Sen. Ted Stevens and ultimately threw it out. Sullivan reportedly chastised the prosecutors in the 2009 case for “mistakes” they made in the case.
“Sullivan blew up that conviction based on prosecutorial misconduct,” Trusty said. “He has a track record of being pretty independent-minded, and is concerned about fair play from the government, so in that sense, he could be a good draw for Gen. Flynn.”
Trusty, though, warned that despite Sullivan’s nature and focus on government misconduct, he was unlikely to “swoon from the emotions of the moment.”
“No matter how aggressively Flynn’s counsel describes these new documents, it is not mutually exclusive to say and to have government bad faith but also a defendant who committed a crime,” Trusty said. “It’s going to be very hard to predict what Sullivan will do except to say he will look at it carefully and decide whether there is unfairness by the government that dictates undoing the guilty plea.”
But Trusty pointed out the document dumps are coming directly from the Justice Department.
“There is clearly oversight looking at how this case came to be, what agents did, etc. and that all suggests they are maintaining their discretion,” Trusty said. “They may get to a point and say ‘enough is enough, we need to undo this case.”
He added: “I’d be surprised if Sullivan didn’t go along with that decision.”
Meanwhile, another avenue for Flynn to walk from this years-long saga could be a pardon from President Trump. The president floated a “full pardon” for his ex-national security adviser last month, but has kept that option close to the vest amid the latest revelations.
“They tormented him," Trump said Thursday, but when asked directly whether he would pardon Flynn, he did not answer. “General Flynn is a fine man. You don’t get to be where he is by being bad.”
The president did not say whether he would rehire Flynn, but prior to being asked about it, he said that after this matter is behind him, Flynn will "come back bigger and better.”
McCarthy, though, told Fox News he thought that a DOJ dismissal of the case would “in the long run be better” for Flynn than a pardon from the president.
“I thought Trump should have pardoned Flynn at the beginning. I always think it is a mistake to wait until someone is sentenced to pardon,” McCarthy said. “But I think the case will get thrown out.”
Should the case be thrown out, or further potentially exculpatory information be released, Tolman suggested Flynn “file a Bivens Action ... a civil lawsuit allowed against bad acting federal agents for violations of constitutional rights.”
Flynn’s attorney, Sidney Powell, in an email to Fox News said: “This persecution will have to be thrown out entirely.”
Neither the Justice Department nor the FBI responded to Fox News' request for comment.