In response to the DOJ alumni letter on the Flynn case

I read the “DOJ Alumni Statement on Flynn Case,” as well as the Department of Justice’s motion to dismiss further prosecution of former national security adviser and retired Lt. Gen. Michael Flynn. The assumption by all those who signed the alumni letter seems to be that Attorney General William Barr’s primary motivation to accept U.S. Attorney Jeff Jensen’s recommendation to dismiss the case was politically motivated, to curry favor with President Trump — and, for this, AG Barr must resign. 

Regarding the dismissal, the DOJ alumni letter states: “The Department’s purported justification for doing so does not hold up to scrutiny, given the ample evidence that the investigation was well-founded and — more importantly — the fact that Flynn admitted under oath and in open court that he told material lies to the FBI in violation of longstanding federal law.”

“Purported justification … does not hold up to scrutiny” — those words leave me wondering if the letter’s signers actually read the DOJ’s motion to dismiss. If they did, can they honestly say, as former federal prosecutors, that the government’s motion to dismiss is not well-grounded in objective facts and adheres to the rule of law, not to mention DOJ policy? Should we assume that the DOJ alumni also are calling for the resignations of U.S. Attorney Jensen, of U.S. Attorney Timothy Shea whose D.C. office filed the dismissal motion, and perhaps even of U.S. Attorney John Durham, who continues to investigate the origins of the FBI’s Russia probe?

The letter makes reference to some of President Trump’s public comments cheering the dismissal and claiming Flynn’s exoneration, but it makes no attempt to critique DOJ’s reasoning in support of the motion. In fact, the letter completely ignores the recent disclosures that led to the Flynn dismissal, such as:

1. Exculpatory notes, which were not provided to defense counsel, showed that investigators were setting up Flynn in a perjury-trap interview;
    
2. The FBI already had conducted a months-long counterintelligence (CI) investigation of Flynn, resulting in the “absence of any derogatory information,” to justify further investigation; thus, the case had been submitted for closure on Jan. 4;
3. After the CI investigation fizzled, there was no apparent investigative basis to then conduct a criminal investigation of Flynn. What violation of federal law was the FBI investigating when it interviewed Flynn on Jan. 24? And why question him on his conversations with Russian Ambassador Kislyak, when the bureau already had a verbatim transcript? In fact, during his interview, Flynn stated that he assumed the FBI had monitored his phone conversation with  Kislyak; 
4. A senior FBI official told Flynn he didn’t need a lawyer — a highly improper statement, since Flynn was the subject of some kind of FBI investigation; and
5. In February 2017, senior FBI officials and others apparently altered the initial report (known as a “302”) of Flynn’s interview, in violation of FBI regulations.

According to DOJ’s motion to dismiss, the interviewing agent’s initial assessment of Flynn’s Jan. 24 interview was that he did not intentionally lie to the FBI. Sometime later, that assessment changed.

Yes, Flynn’s guilty pleas under oath are problematic when evaluating DOJ’s justification to dismiss the case. However, as an investigator seeking the truth, I would really want to know the facts and circumstances on which special counsel Robert Mueller relied to charge Flynn with violating the federal criminal code’s Section 1001 (False Statements), in order to understand the significance — or materiality — of Flynn’s false statements: What were the specific questions the FBI asked Flynn, and what were his answers? That way, I might understand if Flynn had ample motive to simply take a plea, despite believing in his own innocence, in order to stop the financial hemorrhage of his defense and to preclude the government from prosecuting his son.

I would ask the DOJ Alumni to objectively evaluate DOJ’s motion to dismiss the Flynn case, and then to see if they still can make an argument that the FBI and the DOJ’s unscrupulous, unethical actions during the investigation of Michael Flynn do not justify the Department of Justice’s motion to dismiss. 

The DOJ Alumni’s letter highlighted a quote: “Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.” These exact words describe my feelings as well.

Mark D. Ferbrache was an FBI agent from 1983 to 2011, including white-collar criminal investigations and assignments to field offices in Seattle, New York, London, Bucharest and Prague, as well as the FBI’s headquarters in Washington. He worked in the bureau’s National Security Division overseeing counterterrorism investigations and at the CIA’s Counterterrorism Center. He is currently employed as an intelligence contractor.