Joe Biden could still prosecute former National Security Advisor Gen. Michael Flynn (Ret.) for perjury if the former vice president defeats President Donald Trump in the November election.
That is the view of former Deputy Independent Counsel Sol Wisenberg, who told Fox News on Thursday afternoon that even though the Department of Justice (DOJ) had decided to drop its prosecution of Flynn, a future Biden administration could still decide to pursue Flynn for perjury.
The problem, Wisenberg said, was that Flynn had originally pleaded guilty in 2017 to the crime of lying to the FBI on the advice of his lawyers at the time from Covington and Burling, and under pressure from prosecutors, who reportedly threatened to indict his son on unrelated matters.
In that guilty plea, Flynn told a federal court, under oath, that he had deliberately lied to the agents.
But as evidence emerged of misconduct by the Federal Bureau of Investigation (FBI) and DOJ in the case — and with a new lawyer, Sidney Powell — Flynn sought to withdraw his plea.
In its motion to drop the case on Thursday, the DOJ explained that while Flynn admitted to making a false statement to the FBI, that statement had not met the standard of “materiality”:
Mr. Flynn entered a guilty plea—which he has since sought to withdraw—to a single count of making false statements in a January 24, 2017 interview with investigators of the Federal Bureau of Investigation (“FBI”). See ECF Nos. 3-4. This crime, however, requires a statement to be not simply false, but “materially” false with respect to a matter under investigation. 18 U.S.C. § 1001(a)(2). Materiality is an essential element of the offense. Materiality, moreover, requires more than mere “relevance” or relatedness to the matter being investigated; it requires “probative weight,” whereby the statement is “reasonably likely to influence the tribunal in making a determination required to be made.” United States v. Weinstock, 231 F.2d 699, 701 (D.C. Cir. 1956) (emphasis added).
Wisenberg said that President Trump might still need to pardon Flynn to prevent his future prosecution.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.