LOW HANGING FRUIT OF THE TREASONOUS TREE:

The Justice Department's motion to dismiss the case against former National Security Adviser Michael Flynn is flawed in many ways, but one of its weakest arguments is that the investigation of Flynn was not properly "predicated." This argument not only lacks merit--it also opens the door to the same frivolous argument from future defendants in other criminal cases. And it creates a dangerous incentive that could dissuade the FBI from fulfilling its duty to fully investigate criminal and national security threats. [...]

According to the Justice Department inspector general, the Flynn investigation was properly predicated as a full investigation. In his report on the FBI's conduct in the Russia investigation, the inspector general stated, "[T]he quantum of information articulated by the FBI to open these individual investigations [that is, the investigations into Flynn as well as Carter Page, George Papadopoulos and Paul Manafort] was sufficient to satisfy the low threshold established by Department and FBI predication policy, particularly in the context of the FBI's separate and ongoing investigative efforts to address Russian interference in 2016 U.S. elections."

Key to the Justice Department's argument in its motion to dismiss is the fact that, after four months of investigation without finding any derogatory information, the FBI was prepared to close its case on Flynn. A draft internal FBI document dated Jan. 4, 2017, shows that the bureau had sketched out a memo closing the probe, though the document includes the usual caveat that if new information were identified, the FBI would consider reopening the investigation.

But before the case was actually closed, the FBI learned that Flynn had spoken to Russian Ambassador Sergey Kislyak in late December 2016. According to the Justice Department's motion, the FBI had transcripts of the relevant calls, likely obtained through surveillance of Kislyak authorized by the Foreign Intelligence Surveillance Court. By this time, Flynn had been named as Trump's national security adviser.

In those calls, Flynn had asked Russia not to retaliate for sanctions imposed by the Obama administration as punishment for election interference. Flynn had also asked Russia to vote against a United Nations resolution regarding Israeli settlements. On their face, these calls potentially undermined the foreign policy of the United States. What's more, on Jan. 15, 2017, Mike Pence, then the vice president-elect, made public statements that contradicted the transcripts of Flynn's calls-- a fact that, as documented in the Mueller report, "alarmed senior DOJ [Department of Justice] officials." And so, the FBI decided to keep the investigation open. FBI agents interviewed Flynn on Jan. 24, four days after Trump took office. During that interview, Flynn falsely denied his statements regarding sanctions and the U.N. vote. He later pleaded guilty to one count of false statements for telling these lies.

The Justice Department now insists that the Kislyak call did not establish adequate predication for the FBI to conduct this interview. But there was no need for new predication for the interview--because predication had already been established. 

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