The Justice Department on Wednesday set an ominous new precedent when it agreed to pay former Trump national security adviser Michael Flynn $1.25 million to settle a baseless case of malicious prosecution.
It was also another windfall for a man who was rightly prosecuted and had rightly pleaded guilty to lying to the FBI before President Donald Trump’s DOJ dismissed the case and Trump pardoned him during his first term.
The payoff is a miscarriage of justice. Worse, it encourages others who Trump favors — such as the Jan. 6 defendants — to seek similar windfalls that support his efforts to rewrite history.
Transcripts of Flynn’s conversation with Ambassador Sergey Kislyak showed that Flynn had, in fact, asked that Russia not take any action that would “escalate . . . on a tit for tat.”
Some readers might need a refresher about the Flynn prosecution. The case stemmed from Flynn falsely telling the FBI, at the end of the Obama administration when he had been named incoming national security adviser to President-elect Trump, that he had not asked the Russian ambassador to urge Moscow not to escalate its response to sanctions the Obama administration had imposed for Russia’s interference in the 2016 presidential election.
That was a lie. Transcripts of Flynn’s conversation with Ambassador Sergey Kislyak showed that Flynn had, in fact, asked that Russia not take any action that would “escalate . . . on a tit for tat.” He told Kislyak that they needed “cool heads to prevail” because once the Trump administration took office, “we can then have a better conversation about where, where we’re gonna go.” The transcripts also showed that, two days later, Kislyak called Flynn back to “pass” a message to him “from Moscow” that the decision not to act was based on Flynn’s “proposal that we need to act with cold [sic] heads.”
The lies about the conversation mattered, among other reasons, because Flynn also lied to incoming Vice President Mike Pence about his conversations with Kislyak, causing Pence to convey inaccurate information to the American public. Indeed, on CBS’ “Face the Nation,” Pence said Flynn and Kislyak “did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.” In other words, Pence falsely claimed, based on what Flynn had told him, that Flynn had not discussed the Obama administration’s sanctions with Kislyak.
But of course “Moscow” would know that was not true because Kislyak made clear he had shared Flynn’s proposal with “Moscow,” which led to its decision not to escalate and to instead wait for a meeting with Trump once he became president. (Indeed, they even began planning that meeting for Jan. 21, 2017.) That means that Flynn had put himself in a potentially compromised position that the Russians could use against him. Flynn had also infuriated Pence, who didn’t learn of the lies until weeks later, leading to Flynn’s resignation on Feb. 13, 2017, less than a month into the new administration.
Given Flynn’s false statements to the FBI in a counterintelligence matter, it’s not surprising that he was criminally charged, and it’s not surprising that he pleaded guilty. What was a surprise was the Justice Department’s eleventh-hour decision to move to the dismiss the charges, at the direction of then-Attorney General Bill Barr, based on a concocted theory that the false statements could not have been “material” to any matter under investigation — and therefore not a crime — because the FBI did not have a valid basis for investigating Flynn in the first place.
This is wrong, as I’ve written previously. Although Barr partly tried to justify the dismissal based on an interview I gave to the Special Counsel’s team, in my role as acting assistant attorney general for national security at the DOJ when all of this was happening, nothing I said supported Barr’s theory. Yes, I had described a disagreement between Justice Department officials and the FBI about how to handle the Flynn situation, and in particular whether to tell the incoming administration about it, but I never suggested there was disagreement over whether Flynn’s compromised circumstances presented a counterintelligence threat. The DOJ’s argument that the FBI’s interview of Flynn was not “tethered” to any legitimate counterintelligence purpose found no grounding in my interview or in the facts.
The dismissal instead seemed based on wanting to reward a close ally of Trump, just like the last-minute decision by the DOJ to lower its sentencing recommendation for Roger Stone, who was convicted in 2019 of lying to Congress and obstruction related to the House’s own Russia investigation. The decision to withdraw its sentencing memo and file a new one seeking a lower sentence for Stone was made just hours after Trump complained that the first recommendation was “very horrible and unfair.” Stone, like Flynn, also received a pardon from Trump. Why shouldn’t the Jan. 6 defendants seek similar windfalls by bringing multi-million-dollar lawsuits against the government, arguing that their prosecutions were unlawful? Not content with his good fortune, in 2023, Flynn sued the government for $50 million. The DOJ defended the case, filed a motion to dismiss and prevailed. That’s right — in December 2024, the U.S. District Court for the Middle District of Florida granted the government’s motion to dismiss. That should have been the end, but so should have been Flynn’s guilty plea way back in 2018. Since the dismissal was “without prejudice,” however, it gave Flynn the chance to try again, though the judge warned that if he filed an amended complaint, it should “not run afoul” of the federal rule that prohibits baseless factual contentions and frivolous arguments. And it was in response to that amended complaint that the Trump Justice Department threw in the towel and decided to give Flynn yet another windfall. While this result is far from just, perhaps more concerning is what it invites others to do. Why shouldn’t the Jan. 6 defendants seek similar windfalls by bringing multimillion-dollar lawsuits against the government, arguing that their prosecutions were unlawful? Leaders of the Proud Boys have already done so. Payoffs like the one made to Flynn help solidify false narratives propounded by Trump. This payoff supports Trump’s insistence that the Russia investigation was a hoax. The next might support his obsessive need to show that he really won the 2020 election and that the Jan. 6 defendants were political prisoners wrongfully prosecuted. That would be an even bigger miscarriage of justice.
Mary McCord
Mary B. McCord is an MS Now legal and national security contributor, and co-host of the MS Now podcast "Main Justice." She is executive director of Georgetown Law's Institute for Constitutional Advocacy and Protection. She previously served as the acting assistant attorney general for national security at the Department of Justice and was an assistant U.S. attorney in the District of Columbia for nearly 20 years. 
