Flynn v. United States

1

MICHAEL T. FLYNN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 8:23-cv-00485-MSS-CPT

United States District Court, M.D. Florida, Tampa Division

December 10, 2024

ORDER

MARY S. STRIVEN UNITED §TATES DISTRICT JUDGE

THIS CAUSE comes before the Court for consideration of Defendant United States of America's Motion to Dismiss (Dkt. 38), Plaintiff Michael T. Flynn's response in opposition, (Dkt. 39), and Defendant's reply thereto. (Dkt. 43) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Defendant's Motion.

I. BACKGROUND

Plaintiff initiated this action against the United States for malicious prosecution and abuse of process under the Federal Tort Claims Act on March 3, 2023. (Dkt. 1) Plaintiff filed the operative Amended Complaint on July 24, 2023 (the “Complaint”). (Dkt. 34) Therein, Plaintiff alleges the following salient facts.

In 2016, Plaintiff began consulting for several of the Republican candidates for president. (Id.) In February 2016, Plaintiff became a foreign policy advisor to Donald Trump, who was then a Republican candidate for the presidency. (Id. at ¶ 25) Plaintiff served in this role through the election, which Trump won in November 2016, and during the transition of presidential administrations. (Id.) Plaintiff then served as then-President Trump's National Security Advisor. (Id.)

As an outgrowth of an FBI counterintelligence investigation called Crossfire Hurricane, in August 2016, the FBI opened a sub-investigation of Plaintiff called Crossfire Razor. (Id. at ¶ 32) The purported purpose of Crossfire Razor was to determine whether Plaintiff knowingly or unknowingly was involved in activity on behalf of the Russian government that could constitute a federal crime or a threat to national security. (Id.)

Plaintiff alleges William Barnett, the lead FBI agent assigned to Crossfire Razor, could not find any evidence of criminal activity and determined that one potential lead was uncorroborated and implausible. (Id. at ¶ 57) Some of the agents assigned to Crossfire Razor were eager to close the case as early as November 8, 2016. (Id.) Other agents and analysts assigned to the investigation however, believed they would find evidence Plaintiff committed a crime. (Id.)

In late December 2016, Barnett's superiors permitted him to close the Crossfire Razor investigation without interviewing Plaintiff. (Id. at ¶ 60) In Barnett's closing memorandum, he wrote, “Per the direction of FBI management, [Plaintiff] was not interviewed as part of the case closing procedure.” (Id.) The memorandum stated that the Crossfire Razor investigation failed to produce any information upon which to predicate further investigative efforts regarding Plaintiff. (Id. at ¶ 61) Despite Barnett's having written the closing memorandum, however, the case remained open. (Id. at ¶¶ 62-64)

At some point prior to January 4, 2017, FBI senior staff obtained a transcript of a December 28, 2016 phone call between Plaintiff and Russian Ambassador Kislyak. (Id. at ¶ 62) Plaintiff contends the FBI-specifically, FBI Agent Peter Strzok and Deputy FBI Director McCabe-and the Executive Office of the President knew that his statements to Kislyak were legitimate diplomatic communications. (Id. at ¶¶ 62, 87) Nonetheless, Strzok instructed agents to keep the Crossfire Razor investigation open based on Plaintiff's call with Kislyak. (Id. at ¶ 68)

On January 24, 2017, Deputy FBI Director McCabe called Plaintiff to request a meeting, and Plaintiff agreed. (Id. at ¶ 100) Plaintiff claims McCabe told him that the requested meeting would be an informal interview, the goal of which was to resolve the discussions about the Kislyak calls in the media. (Id.) Plaintiff alleges that McCabe stated that he wanted the interview done as quickly, quietly, and discreetly as possible, and then advised that if Plaintiff wished to have anyone else at the meeting, including the White House Counsel, the FBI would have to elevate the issue to the DOJ. (Id.)

Plaintiff consented to the interview, and, later that day, Agent Strzok and Agent Joe Pientka interviewed Plaintiff in Plaintiff's office at the White House. (Id. at ¶ 101) The agents acted casually and and in a friendly manner toward Plaintiff. (Id.) Plaintiff alleges they did not put him on notice of the consequences of making a misstatement. (Id.) Plaintiff alleges that during the interview, Strzok and Pientka attempted to trap Plaintiff in a misstatement or omission related to the Kislyak calls so they could charge him with a false statement violation of 18 U.S.C. § 1001. (Id. at ¶ 102) Plaintiff alleges this malicious intent continued for the remainder of the FBI's investigation and the subsequent investigation and prosecution by the SCO. (Id.)

Plaintiff alleges the “White House” was briefed on the misstatements made by Plaintiff to the FBI, and, as a result, on February 13, 2017, Plaintiff resigned from his position as National Security Advisor. (Id. at ¶ 110)

Strzok and Pientka submitted their notes three weeks after the interview with Plaintiff, approximately in mid-February 2017. (Id. at ¶ 111)

On May 17, 2017, Deputy Attorney General Rod Rosenstein appointed Robert S. Mueller to serve as Special Counsel to oversee the investigation into Russian interference in the 2016 election. (Id. at ¶ 116) This appointment resulted in the creation of the SCO within the DOJ. (Id.) The SCO assumed the investigation and assumed the DOJ's role in working with the FBI investigative teams assigned to the relevant investigations. (Id.)

Plaintiff alleges that during its investigation of Plaintiff, the SCO, under Mueller, regularly issued search warrants. (Id. at ¶ 120) The SCO attorneys drafted the search warrants and had case agents act as affiants. (Id.) Plaintiff alleges that the SCO investigators disregarded possible non-incriminating interpretations of information gathered about the targets of their investigation. (Id. at ¶ 121)

On November 30, 2017, the SCO procured a criminal information against Plaintiff, initiating a felony criminal prosecution against him. (Id. at ¶ 124) The information charged Plaintiff with one count of making false statements in violation of 18 U.S.C. § 1001(a)(2). (Id.) In the information, the SCO asserted that Plaintiff had intentionally omitted and denied speaking with Russian Ambassador Kislyak during an interview with FBI agents Strzok and Pientka on January 24, 2017. (Id.) Plaintiff alleges this assertion was false. (Id.)

By way of background, Plaintiff alleges that in December 2016, he received a letter from the DOJ requesting FARA filings related to a consulting firm Plaintiff founded, Flynn Intel Group (“FIG”). (Id. at ¶ 125) Plaintiff's son was FIG's chief of staff. (Id.) Plaintiff hired attorneys to prepare and file the requested paperwork. (Id.) The chief of the FARA unit of the DOJ's National Security Division, Heather Hunt, personally handled the case and repeatedly urged Plaintiff's lawyers to file the paperwork quickly. (Id. at ¶ 126) The DOJ counterintelligence chief, David Laufman, also became personally involved in the FARA case related to FIG. (Id.)

The SCO took over the FARA case, and in August 2017, Plaintiff's lawyers learned of the Crossfire Razor investigation into Plaintiff. (Id. at ¶ 127) Plaintiff's lawyers also learned that the SCO was looking into both Plaintiff and his son for potential crimes related to the FARA filings. (Id.) Plaintiff alleges, “On December 1, 2017, [Plaintiff] entered into a plea agreement, not because he thought he had done anything wrong-he hadn't-but because [the] SCO had threatened his son with prosecution, and he was told that [the] SCO would let his son go if he cooperated.” (Id. at ¶ 128)

Plaintiff alleges that employees and agents of both the FBI and the SCO are Defendant's investigative and law enforcement officers. Thus, he alleges Defendant's investigative and law enforcement officers procured the prosecution of Plaintiff despite knowing he had not made false statements and that, even if he did make false statements, they were unintentional and were not material to the Crossfire Razor investigation. (Id. at ¶ 129) Plaintiff alleges the FBI and the SCO had no reasonable belief that Plaintiff had committed the criminal offense and therefore had no probable cause to procure or bring the information. (Id.)

Specifically, Plaintiff alleges that at the time the information was filed, the FBI and the SCO knew or should have known that Strzok and Pientka wrote in their interview notes they did not believe Plaintiff had lied during their January 24, 2017 interview. (Id. at ¶ 130) Furthermore, they knew the FBI only kept the Crossfire Razor investigation of Plaintiff open to investigate the Kislyak calls, and no independent criminal investigation into the Kislyak calls was ever properly opened. (Id.) Further, at the time the information was filed, Defendant's law enforcement and investigative officers, including the SCO, possessed Strzok's notes that described the January 10, 2017 meeting in the Oval Office. (Id. at ¶ 131) In sum, Plaintiff contends that at the time the information was filed, the FBI and the SCO lacked evidence Plaintiff had illegal contacts with a foreign power or had made material misstatements to the FBI; rather, Plaintiff alleges, the FBI and the SCO knew Plaintiff was innocent. (Id. at ¶ 133)

Plaintiff alleges the FBI and the SCO had malicious intent when they investigated Plaintiff and procured the prosecution. (Id. at ¶ 134) Plaintiff contends the FBI and the SCO knew Plaintiff was not a Russian agent and that they lacked a basis for further investigation or for a prosecution. (Id. at ¶ 137) Nevertheless, FBI and SCO officers...