(CNN) In arguing that the case against President Donald Trump's former national security adviser Michael Flynn should be dropped, the Justice Department contradicted past testimony from key officials, according to one official and a CNN analysis.
The stunning decision to abandon the case, which the Justice Department pursued for two-plus years, came from political appointees handpicked by Attorney General William Barr. Their arguments in a recent court filing don't fully reflect the documents that underpin the case.
Mary McCord, the Justice Department's top national security lawyer at the time of Flynn's January 2017 interview with the FBI, highlighted in a New York Times op-ed some discrepancies. She said Barr is now twisting her words as justification for dropping Flynn's criminal case.
Other officials' testimony about Flynn and parts of the court record also appear to undercut new arguments from the Justice Department about why Flynn shouldn't be prosecuted.
The Justice Department last week argued the FBI shouldn't have interviewed Flynn in January 2017 because its reasons for investigating him weren't strong enough. Flynn's legal team has claimed the FBI's approach was evidence of a set-up. Flynn has said under oath he knowingly and intentionally lied to the FBI and did not believe he was entrapped, though he now claims in court he is innocent.
McCord and then-acting Attorney General Sally Yates never apparently disagreed with law enforcement's need to interview Flynn after the discovery of his discussions with the then-Russian ambassador Sergey Kislyak before Trump took office. They feared the Russians would know he had misled the Trump administration and that Flynn could be compromised.
But the Justice Department led by Barr now says that "whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia," according to Thursday's court filing.
McCord declined to comment further on Monday, saying she believed her op-ed spoke for itself. Yates did not respond to requests for comment.
The Justice Department's decision to drop the case against Flynn case has prompted intense criticism from former prosecutors alleging Barr is skewing the law to help a Trump associate -- as they also say he did before the sentencing of political adviser Roger Stone. Until last week, the Justice Department had defended the FBI's and prosecutors' work on the Flynn case.
Here are more ways where the DOJ's latest approach has split from the public record in the Flynn case:
McCord says the Justice Department cherry-picked her statements about the seriousness of Flynn's calls with Kislyak and the national security risk at the time. That appears to be the case in the Justice Department's 20-page motion to dismiss, which leaves out quotations of the Flynn-Kislyak call -- details that the Justice Department has kept hidden from the public even following a judge's order. Nothing said on the calls "indicate an inappropriate relationship between Mr. Flynn and a foreign power," the Justice Department wrote last week.
In those December 2016 calls, Flynn undermined sanctions that President Barack Obama imposed as punishment for election meddling, and undercut the US position on a United Nations resolution about Israel, according to admissions Flynn made in his guilty plea.
The Justice Department filing glossed over potentially substantive parts of Flynn's calls: "In the words of one senior DOJ official: 'It seemed logical ... that there may be some communications between an incoming administration and their foreign partners.' Such calls are not uncommon when incumbent public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts."
That statement came from McCord's interview with Mueller prosecutors, which was captured in a 12-page memo called a 302. The memo makes it clear that McCord thought Flynn's having the call "seemed logical" at first for an incoming administration.
"However, that changed when Vice President Michael Pence went on Face the Nation and said things McCord knew to be untrue," the FBI memo says. "Also, as time went on, and then-White House spokesperson Sean Spicer made comments about Flynn's actions she knew to be false, the urgency grew."
That second part -- with the growing urgency -- was omitted from Thursday's Justice Department filing.
There also is no complete public record of what Flynn said to Kislyak on those calls -- and how clearly he made the asks of the Russians on behalf of the incoming Trump administration.
Exact quotes from Flynn's call with Kislyak have not been admitted in public records or even disclosed to Congress. They are kept still redacted by DOJ when much of the rest of the record is being declassified and made public.
Earlier in Flynn's case, before his sentencing hearing, federal Judge Emmet Sullivan demanded the release of any audio transcripts of the Flynn-Kislyak calls. But the prosecutors told the judge more information about what was said on the calls wasn't relevant to Flynn's sentencing. The case moved on without the disclosure.
The Justice Department's rationale for dropping the Flynn case largely revolves around arguing there wasn't a legitimate reason for the FBI to interview him.
In court papers, the Justice Department focuses on the Logan Act, an archaic and little-used law banning unauthorized Americans from negotiating with foreign diplomats, and standards the FBI needed to investigate Flynn. The filing last week argued that because the FBI was preparing to close a counterintelligence investigation into Flynn's ties with Russia in early January 2017, before learning about his policy discussions with Kislyak, the investigation had no reason to continue.
But Flynn's discussions with the Russian ambassador raised new questions about what was said on the calls and why. When the special counsel's office charged Flynn with lying in late 2017, it said he had communicated about his conversations with Kislyak to top Trump transition officials. More details about those back-and-forths are still unknown.
The Justice Department now argues that because the law was unlikely to be enforced in a criminal prosecution, there was essentially no legal basis to investigate Flynn.
"In short, Mr. Flynn's calls with the Russian ambassador—the only new information to arise since the FBI's decision to close out his investigation—did not constitute an articulable factual basis to open any counterintelligence investigation or criminal investigation," the Justice Department wrote last week.
But McCord and several former officials who handled the case say there were strong national security reasons to get to the bottom of Flynn's conduct. Primarily, Flynn's lies to senior Trump officials, including Pence, made him vulnerable to Russian blackmail.
Indeed, the labeling of the Flynn investigation is a bit fuzzy -- it began as a counterintelligence probe but expanded over time after Flynn's potentially criminal conduct was uncovered. This includes the phone call, his lies during the FBI interview and eventually undisclosed foreign lobbying for Turkey that he admitted to in his plea but was ignored by the DOJ last week.
The Justice Department cited McCord's testimony to Mueller and said the rationale for the investigation was "vacillating" between counterintelligence and criminal. But McCord pushed back in her op-ed, saying, "that 'vacillation' has no bearing on whether the FBI was justified in engaging in a voluntary interview."
Yates, too, never said she objected to an investigation of Flynn. His lies to other members of the administration, according to Yates, were serious and deserved the White House's attention, at very least, and raised questions that investigators should have pursued.
"There was a real problem with his underlying conduct," Yates explained to the House Intelligence Committee, according to a November 2017 interview transcript released last week.