A former top Department of Justice official said Sunday that Attorney General Bill Barr and the federal agency he runs "twisted" her words from an FBI interview cited 25 times in the recent motion to dismiss criminal charges against former Trump national security adviser Michael Flynn.
The Justice Department last week filed an extraordinary motion to dismiss the case against Flynn, even though he twice pleaded guilty to lying to the FBI about his discussions with a top Russian diplomat during the presidential transition in 2016. The memo, signed by close Barr confidante Timothy Shea, argued that Flynn's prosecution "would not serve the interests of justice."
"The government is not persuaded that the Jan. 24, 2017, interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn's statements were material even if untrue," Shea wrote.
The motion repeatedly cited an FBI report of a July 2017 interview with Mary McCord, the former acting assistant attorney general for national security, in which she detailed a disagreement between the Justice Department and the FBI about how to handle the case.
"But the report of my interview is no support for Mr. Barr's dismissal of the Flynn case," McCord said in a New York Times op-ed. "It does not suggest that the F.B.I. had no counterintelligence reason for investigating Mr. Flynn. It does not suggest that the F.B.I.'s interview of Mr. Flynn, which led to the false-statements charge, was unlawful or unjustified. It does not support that Mr. Flynn's false statements were not material. And it does not support the Justice Department's assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, 'would not serve the interests of justice.'"
McCord noted that the Justice Department did not argue in its motion that the FBI had violated Flynn's constitutional rights nor that officials had coerced him into an interview.
"By the government's own account, the interview with Mr. Flynn was voluntary, arranged in advance and took place in Mr. Flynn's own office," she wrote as she argued that the Justice Department motion made a "contorted argument" to insist that Flynn's false statements were not "material" to the case.
The Justice Department argued in its motion that the statements were not material, because the investigation was part of a larger probe into possible coordination between the Trump campaign and Russia and was set to close in Jan. 2017 before the FBI learned of Flynn's conversations with then-Russian Ambassador Sergey Kislyak. But McCord said her account "doesn't help support this conclusion, and it is disingenuous for the department to twist my words to suggest that it does."
McCord said the disagreement between the Justice Department and FBI was about whether to inform the incoming Trump administration that Flynn had lied about the conversations to Vice President Mike Pence — who publicly echoed the denial — or to keep the revelations under wraps while pursuing its counterintelligence investigation. There was no disagreement on whether Flynn's false statements were a "counterintelligence threat," she said.
"Mr. Pence's denial of this on national television and his attribution of the denial to Mr. Flynn put Mr. Flynn in a potentially compromised situation that the Russians could use against him," she said. "The potential for blackmail of Mr. Flynn by the Russians is what the former Justice Department leadership, including me, thought needed to be conveyed to the incoming White House."
Amid the dispute, then-FBI Director James Comey went rogue and sent FBI agents to interview Flynn without notifying the Justice Department, McCord wrote. She claimed that her criticism of the FBI decision in her 2017 interview "has no bearing on whether the FBI was justified in engaging in a voluntary interview with Mr. Flynn" and "has no bearing on whether Mr. Flynn's lies to the FBI were material to its investigation."
"Perhaps more significant, it has no bearing on whether Mr. Flynn's lies to the F.B.I. were material to the clear counterintelligence threat posed by the susceptible position Mr. Flynn put himself in when he told Mr. Pence and others in the new administration that he had not discussed the sanctions with Mr. Kislyak. The materiality is obvious," McCord said. "In short, the report of my interview does not anywhere suggest that the F.B.I.'s interview of Mr. Flynn was unconstitutional, unlawful or not 'tethered' to any legitimate counterintelligence purpose."
After the motion was filed, Barr denied that the Justice Department had moved to drop the case because of pressure from President Donald Trump.
"I think easy because once I saw all the facts and some of the tactics used by the FBI in this instance and also the legal problems with the case, it was an easy decision," he told CBS News, arguing that there was no "basis" to investigate Flynn when he was interviewed and that his calls with Kislyak were "perfectly legitimate."
Pence said in an interview with Axios that he would be "happy to see Flynn" return to the administration, even though the former national security official had lied to him.
The comments were a departure from Flynn's praise of the president for firing the former adviser.
"What I can tell you is that I knew that he lied to me," he told CBS News at the time. "And I know the president made the right decision with regard to him."
Former President Barack Obama said in a leaked discussion with former administration aides that Barr's decision defied the "rule of law."
"There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free," the former president said. "That's the kind of stuff where you begin to get worried that basic — not just institutional norms — but our basic understanding of rule of law is at risk. And when you start moving in those directions, it can accelerate pretty quickly, as we've seen in other places."