Blog No. 259. The Flynn Debacle (Part I)

On May 7, Attorney General Bill Barr’s Department of Justice stunned the legal world by filing a motion to withdraw all charges against General Michael Flynn—charges to which Flynn had pled guilty in writing and in open court. That extraordinary step can only be understood as the latest chapter in Barr’s efforts to assist Donald Trump’s attempt to rewrite history. It is the aim of Trump and Barr not only to discredit the Mueller investigation, but to indict—perhaps literally—those who initiated the investigation of the 2016 Trump Campaign and its ties to Russian interference in the election.

Many distinguished Republicans who have recognized the grievous damage Trump has done to the Republican Party and the country, have left the party. In my case, I have remained a registered Republican, awaiting the November election and hoping for a decisive rejection of Trump that might provide the seeds for a rebirth and rebuilding. One price I pay for that decision is that I continue to receive copious Trump literature through the mail and online. Friday’s email brought this rancid morsel:

The reckless allegations against Biden are, of course, utterly groundless, as are Trump’s vague and sinister references to “Obamagate” as “the biggest political crime and scandal in the history of the USA.” The media has grown so accustomed to groundless accusations from Trump that it has scarcely noticed, but we are clearly in for more.

For his part, Barr initially sought to bring the Trump counter-narrative to life by accusing the FBI of “spying” on the Trump campaign and he then commissioned a U.S. Attorney, John Durham, to investigate the investigators of the Russia probe, including not only the FBI but others in the intelligence community, such as CIA Director John Brennan and Director of National Intelligence, James Clapper. Then he brought in another U.S. Attorney, Jeff Jensen, to review (and second guess) the work of the career prosecutors handling the Flynn case. Jensen clearly understood what was required and he performed as expected.

In the context of all that, the withdrawal of charges against Flynn should have been unsurprising, but it was no less alarming. As the New York Times perceptively observed on May 7:

[Trump] said Thursday in an Oval Office appearance that the officials involved in the Russia investigation and the Flynn case were guilty of “treason” and would “pay a big price.”

It’s hard to overstate how dangerous this is. It is a small step from using the Justice Department to protect your friends to using it to go after your political enemies. In other words, watch out, Joe Biden.

Quite so. And if Trump is reelected, it is probably not only Joe Biden who will have to watch out. Other potential targets within Trump’s range might include James Comey, Andrew McCabe, Peter Strzok, Linda Page, John Brennan, James Clapper and that old favorite, Hillary “Lock Her Up” Clinton. On Monday, the Attorney General sought to slow things down a bit:

As to President Obama and Vice President Biden, whatever their level of involvement, based on the information I have today, I don’t expect Mr. Durham’s work will lead to a criminal investigation of either man.

Barr’s comment was far from a categorical rejection of Trump notions, and Trump himself seemed unpersuaded. Later that day at the White House Trump told reporters he was “surprised” by Barr’s comment “because Obama knew everything that was happening.” That is a view Trump is unlikely ever to relinquish. Accordingly, there is no guarantee that Barr will not come up with “newly discovered evidence” or that in a second term Trump will not find another Attorney General even more responsive to his wishes than Barr. We may well have a menu of show trials that would do Joe Stalin proud.

In the meantime, however, Trump and Barr may have made a tactical blunder with the Flynn maneuver. The government’s motion, made before Judge Emmett G. Sullivan, has received push back well beyond the extensive media criticism that they no doubt expected. Among the more significant responses on May 11:

• Over 2,000 DOJ alumni who served under both Republican and Democratic administrations released a letter that excoriated the action, saying that Barr had “assaulted the rule of law.”

• Sixteen former Watergate prosecutors filed a notice of intent to file an application to submit an amicus curiae brief to challenge the government’s motion.  

• Retired federal judge John Gleeson co-authored an op-ed in the Washington Post pointing out that, “There has been nothing regular about the department’s effort to dismiss the Flynn case. The record reeks of improper political influence.” The op-ed suggested that the court could “appoint an independent attorney to act as a “friend of the court,” ensuring a full, adversarial inquiry.”

Judge Sullivan was quick to respond. On May 12, the judge issued an order stating that he would set a schedule for amicus curiae submissions. The following day, he issued a   second order appointing Judge Gleeson as amicus to a) present opposition to the government’s motion, and b) address whether the court should issue an Order To Show Cause why Flynn should not be held in contempt for perjury.

On Monday, Lawfare published an article titled “Judge Sullivan Can Reject the Government’s Motion to Drop Flynn’s Case.” The article contains a link to a draft amicus brief to be submitted on behalf of “over 960 former federal prosecutors and former high-ranking Justice Department officials (the number continues to grow).”

While nothing is certain at this point, it appears that the Court may be headed for an evidentiary hearing with testimony of live witnesses. If so, that could be a highly informative event, more important than the ultimate determination of whether Flynn does or does not get to spend a few months behind bars. The lead counsel would presumably be Judge Gleeson, who seems highly qualified for the responsibility. Before his distinguished career on the federal bench, Gleeson was a highly successful prosecutor whose most celebrated victory was the conviction of mafia kingpin John Gotti, a fitting credential for taking on the Trump/Barr gang.

Gleeson, in his Washington Post op-ed, emphasized the importance of disclosing the transcripts of the Flynn/Kislyak phone calls. That makes sense, and there are many other important avenues to explore, some of which were only touched upon or ignored altogether in the government’s motion papers.

The legal and factual deficiencies in the government’s motion will be considered in Part II of this blog.