The Status of the Michael Flynn Case

Update: On June 24, 2020, in a 2-1 decision, the D.C. Circuit granted the petition for mandamus and ordered Judge Sullivan to dismiss the case. Sullivan or one of the circuit judges may request en banc review by the full court.

The Michael Flynn case is no longer just about a senior government official who lied to the FBI. The prosecution of president Trump’s former national security advisor has become a symbolic struggle over the separation of powers and a showcase for allegations of corruption within the Trump Justice Department. Regardless of the outcome of these court proceedings, Flynn is unlikely ever to see the inside of a jail cell. But how the case plays out over the next few weeks will be an important test of the ability – and willingness – of the judiciary to push back against the Trump administration’s abuse of the justice system.

Michael Flynn
Michael Flynn

Procedural History of the Flynn Case

Flynn pleaded guilty in December 2017 to one count of lying to the FBI. During his guilty plea, Flynn admitted under oath that he had lied to FBI agents about his contacts with the Russian ambassador in December 2016 on behalf of the incoming Trump administration. He confirmed his guilt under oath a second time after his case was transferred to judge Emmet Sullivan. Flynn’s sentencing was substantially delayed while he cooperated with the government during the Mueller investigation.

Once the Mueller probe was concluded, however, Flynn changed his tune. Last summer he fired his respected defense team from the leading D.C. firm of Covington & Burling and hired Sydney Powell, a vocal DOJ critic and Fox News regular. In recent months Powell moved to withdraw Flynn’s guilty plea and to have the charges dismissed, claiming Flynn was an innocent victim of government misconduct. Those motions are still pending before Judge Sullivan.

But the real bombshell in the case landed last month. On May 7 the Justice Department filed a motion to dismiss Flynn’s case. After defending Flynn’s prosecution in court for more than two years, DOJ told the court it now believed Flynn had not actually committed a crime and never should have been prosecuted in the first place.

In response to this startling motion, Judge Sullivan made it clear he wasn’t simply going to accept the government’s claims at face value. Since Flynn and the DOJ were now on the same side, Sullivan appointed a respected former federal judge, John Gleeson, to present any legal arguments against the government’s motion. He also asked Gleeson to advise him on whether Flynn should be charged with contempt for lying during his plea proceedings.

Rather than wait for Judge Sullivan to rule, on May 19 Flynn’s attorney took the unusual step of asking the U.S. Court of Appeals for the D.C. Circuit to issue a writ of mandamus – an order telling Sullivan that he has to grant the motion to dismiss without any further proceedings or delay. The court of appeals asked to hear arguments on the mandamus petition, and Sullivan appointed prominent D.C. attorney Beth Wilkinson to represent him. The Justice Department filed a brief in support of Flynn, and the court of appeals heard arguments on the mandamus petition on Friday, June 12.

As of today, the posture of the case is that Sullivan has a hearing set for July 16 on the motion to dismiss. But before that happens, we expect to hear from the D.C. Circuit on whether it will grant Flynn’s petition for mandamus. If it does, it will order Sullivan to grant the motion and the case will be over. If the circuit court denies the petition, Sullivan will hold the hearing and then either grant the motion to dismiss or deny it and set Flynn’s case for sentencing.

There are two different types of issues presented by these various legal maneuvers: the merits and the process. The merits issue is whether the government’s motion to dismiss should be granted and how much discretion, if any, Judge Sullivan has to review the government’s purported reasons for the dismissal. The process issue is who gets to decide those questions in the first instance: Judge Sullivan, or the Court of Appeals?

U.S. District Judge Emmet Sullivan

Who Gets to Decide?

The process issue is far easier. There are definitely novel and difficult questions raised by the government’s motion to dismiss. But in the ordinary course of legal proceedings, it’s the trial judge who gets to decide those issues first. Sullivan may well end up granting the motion to dismiss, and the case will be over. If he denies the motion, Flynn could appeal to the D.C. Circuit at that time. But there is no justification for the extraordinary remedy of a writ of mandamus, which would allow Flynn (and the government) improperly to sidestep the proceedings before Sullivan.

Flynn and the DOJ argue that mandamus is appropriate because Judge Sullivan has no discretion here. There is no longer an active dispute before the court, because both the defense and the prosecution agree they want the case dismissed. Because the executive branch has sole discretion to decide whether to prosecute, they argue, the judge lacks the constitutional authority to keep the case alive.

One difficulty with this argument is that Federal Rule of Criminal Procedure 48(a), which governs motions to dismiss, says the government may dismiss a case only “with leave of court.” As Judge Wilkins repeatedly pointed out during the D.C. Circuit argument on Friday, that language must mean something. It suggests there is a role for the court to play and that the judge is not merely a rubber stamp. Attorneys for Powell and the DOJ have struggled to explain how “with leave of court” actually means that the court has no choice.

Whether a judge has the authority to deny a motion to dismiss that is agreed to by both sides is an unsettled question. In Rinaldi v. United States the Supreme Court stated:

The words “leave of court” were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, the circumstances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the “leave of court” requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection. But the Rule has also been held [by lower courts] to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest. (emphasis added, citations omitted)

That’s the issue presented in Flynn’s case: whether Judge Sullivan has the authority to deny the motion to dismiss based on a finding that the motion was prompted by “considerations clearly contrary to the public interest” – namely corruption within the DOJ and the fact that Flynn is a political ally of president Trump’s.  The Supreme Court did not decide in Rinaldi whether a judge has that kind of authority, and that question remains unresolved.

The Need for “Regular Order”

The fact that Sullivan’s authority is unsettled is why the mandamus petition should be denied. Mandamus is an extraordinary and unusual remedy. It requires the law to be so clear that there is no possible debate about the proper outcome; the movant must be “clearly and indisputably” entitled to relief and have no other adequate remedy. That’s simply not true in this case. The legal standards governing this motion are unresolved, not “clear and indisputable,” and Flynn has an adequate remedy: let the judge decide his motion, as in any other case.

As Judge Henderson repeatedly pointed out during the D.C. Circuit argument, “regular order” demands that the trial judge, Judge Sullivan, gets to decide those difficult issues in the first instance. That will allow the facts to be fully developed and the arguments on both sides to be heard, and will allow Sullivan to make findings of fact and rulings of law. An appeal to the D.C. Circuit could then follow, if necessary. That’s how our court system works. You don’t get an exception for being the president’s pal.

The mandamus petition argues that Sullivan has no authority to deny the motion to dismiss. Sullivan may well end up agreeing. But Flynn is saying Sullivan can’t even consider the question; can’t even hear the arguments on both sides and make a decision. That’s wrong.

I think the D.C. Circuit is likely to deny the mandamus petition. Judge Sullivan should get to decide the motion to dismiss before the court of appeals gets involved.

Former federal judge John Gleeson

The Merits of the Motion to Dismiss

On the merits, the government’s motion to dismiss is remarkably weak. Judge Gleeson, the amicus appointed by Judge Sullivan, concluded that the arguments advanced by the government are “pretextual” and that the motion is “riddled with inexplicable and elementary errors of law and fact.” I think Gleeson is correct. The legal arguments are frankly laughable. They are also inconsistent with arguments the government itself has made repeatedly over the more than two years this case has been pending.

The government argues first that it now does not believe Flynn’s lies to the FBI were material, as required by the false statements statute. But materiality is a very low bar — a statement need only have the potential to influence some government decision. Flynn’s lies to the FBI about his Russian contacts, made in connection with the FBI’s investigation of Russia and the Trump campaign, easily meet that standard. As Judge Gleeson put it: 

In short, pursuant to an active investigation into whether President Trump’s campaign officials coordinated activities with the Government of Russia, one of those officials lied to the FBI about coordinating activities with the Government of Russia. It is hard to conceive of a more material false statement than this one.

The government claims the lies could not be material because they were not related to a properly predicated investigation of Flynn. This too is nonsense. You don’t have to be the subject of an active investigation yourself to lie to the FBI, or for the FBI to have a reason to interview you. Whether a particular investigation was properly opened or was about to be closed are, as Judge Gleeson noted, simply matters of “bureaucratic happenstance that had no bearing on whether the FBI could or should interview Flynn” about his Russian contacts. In other words, even if the FBI screws up some internal paperwork or procedure before your interview, you don’t get a free pass to lie.

The government also claims it now believes it could not prove that Flynn intentionally lied. Of course, it doesn’t have to prove that, because Flynn himself has already admitted it repeatedly, under oath. He also lied to others in the Trump administration, which is why he was fired after only a couple of weeks on the job. In his brief, Judge Gleeson describes in meticulous detail the various false statements Flynn made during his interview and why they were false.

Judge Sullivan has already ruled – agreeing with earlier arguments made by the prosecutors – that Flynn’s statements were material. Flynn himself has repeatedly acknowledged under oath that he lied to the agents. But the government now claims it could not prove materiality or that Flynn lied. It’s easy to see why Gleeson concluded that the government’s arguments are legally unsound and are a transparent effort to drop the case simply to benefit an ally of president Trump.

What Should Sullivan Do?

The legal arguments in support of the government’s motion to dismiss may be laughable, but that doesn’t necessarily mean that Sullivan should, or can, deny the motion. As noted above, the “leave of court” requirement in Rule 48(a) indicates the court does not have to simply serve as a rubber stamp in the face of such obviously pretextual arguments for dismissal. And the Supreme Court’s footnote in Rinaldi at least notes the possibility that the motion could be denied if contrary to the public interest. But when both the prosecutor and defense agree a case should be dismissed, can the judge really insist that the case go forward?  And what would that look like?

In his brief filed on June 10, Judge Gleeson argued that Sullivan should deny the motion and proceed to sentence Flynn. Gleeson pulled no punches, accusing the DOJ of a “gross abuse of prosecutorial power.” He argued that the motion to dismiss was an “unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.”

As Gleeson points out, the integrity of the judicial branch is at stake here too. The judge is not required to be complicit if he finds an abuse of the prosecutor’s authority:

The Executive Branch had the unreviewable discretion to never charge Flynn with acrime because he is a friend and political ally of President Trump. President Trump today has the unreviewable authority to issue a pardon, thus ensuring that Flynn is no longer prosecuted and never punished for his crimes because he is a friend and political ally. But the instant the Executive Branch filed a criminal charge against Flynn, it forfeited the right to implicate this Court in the dismissal of that charge simply because Flynn is a friend and political ally of the President. Avoiding precisely that unseemly outcome is why Rule 48(a) requires “leave of court.” 

Gleeson argues that accepting the government’s false reasons for dismissal would undermine the public’s confidence in the rule of law by demonstrating that the Trump DOJ may act to benefit the president’s political cronies with impunity.

Admittedly, denying a motion to dismiss supported by both sides could present difficulties in some cases. As Flynn and the government’s lawyers argued in the D.C. Circuit, a judge has no mechanism to compel prosecutors to move forward with a case they want to dismiss. But in the current posture of Flynn’s case, that’s not really an issue. Flynn’s prosecution is essentially over; there is nothing more that prosecutors need to do. All that remains is sentencing, and prosecutors have already filed memoranda setting forth their positions on that. Sullivan could easily proceed to sentence Flynn even if the current prosecutors decline to speak at the hearing.

I don’t know how Judge Sullivan will ultimately decide the motion to dismiss. I wouldn’t be surprised if he grants it in the end. But if he does, it won’t be because the government is right on the merits. It will be because he agrees that in our constitutional structure the executive branch has absolute authority over decisions to prosecute. He may rule that even if a prosecution is dropped for corrupt reasons, the remedy has to lie elsewhere. The remedy is not to try to force the prosecution to proceed — which, in most cases if not this one, would be impossible anyway. But if Sullivan decides a judge does indeed have the authority to deny a motion to dismiss because it is contrary to the public interest, he will likely deny the motion. The posture and facts of this case make it a great candidate for such a denial.

Won’t Trump Just Pardon Flynn Anyway?

Many feel that this entire proceeding is an exercise in futility. After all, even if Sullivan ended up denying the motion to dismiss, sentenced Flynn to prison, and that was upheld on appeal, it seems almost certain that president Trump would step in and pardon him. So as I mentioned at the outset, no matter how this all turns out, Flynn is unlikely ever to see the inside of a jail cell.

But regardless, this is a case where the process is important. It’s important first to uphold the principle that the president’s buddies, just like everyone else, have to pursue “regular order” in the court system. They don’t get to go over the head of a judge whose rulings they might not like and get the court of appeals to order the judge to rule their way. They need to play by the rules, present their arguments to the judge, and then appeal if necessary, just like everyone else.

Denial of the motion followed by a pardon would actually be a better result because, oddly enough, it’s more honest. If Trump wants to exercise his pardon power to benefit his political allies, he should have to take whatever political heat goes along with that. The motion to dismiss was Attorney General Barr’s attempt to do Trump’s dirty work for him – to get Flynn off the hook by pretending that justice demanded it. That should not be allowed. If Trump wants to use his power corruptly to benefit his political crony, he should have to own it.

Finally, even if Sullivan ultimately grants the motion, holding a hearing where the government has to defend the motion will provide a public airing of the government’s actions and purported reasons for the dismissal. Those who argue Sullivan must grant the motion say that even if there is corruption underlying the motion, the remedy is for the public to hold that against the politically-accountable executive branch. But that accountability can’t happen if the true reasons for the dismissal remain concealed.

During the D.C. Circuit argument, the government’s attorney objected to the idea of a hearing where the government may “have to explain itself.” That objection is telling. The “leave of court” requirement must mean, at the very least, that Judge Sullivan is entitled to an explanation. He’s entitled to explore why the government has reversed course after pursuing a case before him for more than two years. By accepting briefs, holding a hearing, and issuing a ruling containing findings of fact, Judge Sullivan can shine some sunlight on DOJ’s misconduct, even if he ultimately grants the motion. That will provide voters with information they can use to evaluate the conduct of Trump’s DOJ when they go to the polls in November.

In the end, that might be the most helpful outcome of all.

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The Rot at the Department of Justice

Almost exactly one year ago, I wrote this post about the resilience of the Department of Justice in the face of president Trump’s onslaught. I argued that although Trump had repeatedly tried to thwart the Mueller investigation, he had been largely unsuccessful due to the strength of the norms mandating that DOJ criminal investigations be free from White House interference. And like many others, I was cautiously optimistic that this would continue under the new Attorney General, William Barr. I wrote:

Whatever you may think of his policies, Barr is a serious person and former Attorney General who understands his role. Once again, if Trump thought that by appointing Barr he was installing someone who would make protecting the president his top priority, I think he is going to be disappointed.

Yikes. You have to grant me this: when I blow it, I really blow it. It took Barr only a few months to prove how spectacularly wrong I was.

Under Barr, the norms of DOJ independence have been shredded. He repeatedly acts like a personal attorney for the president, not like an Attorney General charged with safeguarding the rule of law for the entire country. Barr and Trump have deployed DOJ as a weapon to advance Trump’s political interests and petty personal feuds. And Barr has personally intervened, in an unprecedented way, in criminal cases involving the president’s cronies.

There’s an old saying that a fish rots from the head down. Well, the head of the Department of Justice is rotten. The only question now is how far the rot will extend, and how long it will endure once Barr and Trump are gone.

Richard Nixon
President Richard Nixon

The Tradition of DOJ Independence from the White House

Under president Richard Nixon, the Department of Justice was weaponized and used to further the president’s political interests. Nixon’s Attorney General John Mitchell went to jail for his role in Nixon’s crimes and the subsequent cover-up. Nixon’s case highlighted the dangers of allowing a president to use the awesome power of DOJ, including the power to control criminal investigations, to serve his private political interests. As part of post-Watergate reforms, a figurative wall was erected between the White House and DOJ when it came to criminal investigations.

In the nearly fifty years since Watergate, DOJ criminal investigations have been largely insulated from political influence by the White House. As a general rule, discussion of individual criminal cases between a president and the attorney general has been considered off limits, and presidents generally avoid weighing in on the merits of particular criminal cases. No one claims this rule was never stretched or breached, of course, but in general, administrations of both parties recognized that this norm of DOJ independence was important and worthy of respect.

The example from my own experience that this always brings to mind involves the prosecution of former Illinois Congressman Dan Rostenkowski. Rosty was the chair of the House Ways and Means Committee and one of the most powerful Democrats on Capitol Hill. When Bill Clinton defeated George H.W. Bush and was elected president in 1992, I was part of a team of prosecutors at the U.S. Attorney’s Office in Washington, D.C. in the midst of a lengthy criminal investigation of Rostenkowski for looting various accounts at the House of Representatives.

Rosty was a key political ally of Clinton’s and was critical to his (ultimately unsuccessful) efforts to pass health care reform. But there was never even a suggestion that we should back off the investigation in order to further Clinton’s political goals. None of us involved in the case even really gave that possibility a moment’s thought — we knew that was not how DOJ operated. The investigation, begun under a Republican administration and Republican U.S. Attorney, was completed under a Democratic administration and Democratic U.S. Attorney. Rostenkowski was indicted, convicted, and sent to prison. As Eric Holder, Jr., who was the U.S. Attorney at the time, recently confirmed, there was never any interference from the White House.  That’s how it’s supposed to work.

Jeff Sessions
Former Attorney General Jeff Sessions

Trump’s Early Attempts to Breach the Wall

It was always clear that Trump has no appreciation for the importance of DOJ independence and simply sees the Department, like the government in general, as a tool to be used to benefit himself. Even before he was elected, he threatened that he would direct his Attorney General to prosecute Hillary Clinton and that she would “be in jail” if he became president. Trump spoke repeatedly about wanting an Attorney General who would protect him like Roy Cohn, his former personal lawyer and chief counsel for the McCarthy hearings. Trump thought he had found that when he picked Alabama Senator Jeff Sessions, one of Trump’s earliest and most steadfast supporters, to be his attorney general.

But Sessions, a former United States Attorney, resisted Trump’s efforts to use DOJ to serve his personal interests. When questions arose about his own contacts with Russian officials, Sessions properly recused himself from all matters involving the Russia investigation, which infuriated the president. According to the report by Special Counsel Robert Mueller, Sessions thereafter repeatedly resisted entreaties from Trump to “un-recuse” himself so that he could step back in and shut down the Mueller investigation. Sessions maintained the independence of DOJ in other ways as well. For example, his DOJ indicted two Republican members of Congress in the fall of 2018, shortly before the mid-term elections – an act for which the president, naturally, criticized him on Twitter.

During the first two years or so of Trump’s presidency, others who also respected the tradition of DOJ independence thwarted his efforts to interfere with the Mueller probe. Trump requested “loyalty” from FBI Director James Comey, and later asked him to go easy on Michael Flynn, Trump’s former national security advisor, who was ultimately convicted of lying to the FBI about his Russian contacts during the campaign. When his efforts to pressure Comey failed, Trump fired him. That didn’t work either, because Deputy Attorney General Rod Rosenstein, another career DOJ employee, promptly appointed Mueller as special counsel.

The Mueller report also details how White House Counsel Don McGahn resisted Trump’s efforts to obstruct justice. At one point Trump demanded that McGahn have Mueller fired, but McGahn refused to follow that order and was prepared to resign in protest if necessary. Trump later ordered McGahn to create a document falsely denying that this had ever taken place, and McGahn once again refused.

The Mueller investigation proceeded to its conclusion largely unimpeded. Trump was able to do little more than rage-tweet incessantly about the “witch hunt.” There were some guardrails still in place, people who would stand up to Trump’s improper demands – or at least fail to carry them out until he moved on to something else. Trump’s efforts to bend DOJ to his will were largely unsuccessful. That’s what I wrote about in that earlier post.

Now all that has changed.

Attorney General William Barr
Attorney General William Barr

Barr’s Politicized Department of Justice

After more than a year with Barr as the Attorney General, it’s become clear that he has no intention of upholding DOJ’s tradition of independence from White House influence. On the contrary, Barr appears only too willing to use the power of DOJ to protect the president and advance Trump’s personal political interests.

The first real sign of trouble was Barr’s handling of the Mueller report. His incredibly misleading press conference and letter after he had received the final report “spun” the results and created the impression that Mueller had found no wrongdoing by the president. Although Mueller had declined to make a call on obstruction of justice, Barr himself declared that there had been no obstruction. When the report was finally released weeks later, it became apparent how misleading Barr’s characterization of the report had been, but by that time the “no obstruction, no collusion” narrative was firmly implanted in the public’s mind.

There have been many other troublesome events. For example, in the wake of the phone call with the president of Ukraine that ultimately resulted in Trump’s impeachment, DOJ quickly concluded there was no campaign finance violation and did not even investigate the possibility of bribery, which was clearly implicated by the call. During the Trump administration’s ongoing battles with Congress, Barr’s DOJ has repeatedly supported the administration’s complete refusal to cooperate  with Congressional oversight and blanket assertions of absolute immunity prohibiting testimony by any administration officials. In court pleadings, DOJ has argued that Congress essentially lacks the power to investigate any possible criminal misconduct by the president. Barr announced he has created an intake process to accept information from Rudy Giuliani about the Bidens and Ukraine, part of the efforts that led to Trump’s impeachment. He has appointed another U.S. Attorney, John Durham, to examine whether the investigation into Russian interference in the 2016 election was begun improperly, part of Trump’s claim that the entire Russia investigation was a hoax.

But in recent weeks, it’s been Barr’s interference in the criminal cases of Trump allies who were prosecuted by Mueller that has really set off alarm bells about the lack of DOJ independence.

Roger Stone
Roger Stone

The Roger Stone Case

Republican political operative and Trump advisor Roger Stone was convicted by a jury last November of seven felony counts of lying to Congress, obstruction of justice, and witness tampering. The jury found that Stone repeatedly lied to a Congressional committee about his role as an intermediary between the Trump campaign and Wikileaks concerning the stolen Democratic emails that were released in the weeks leading up to the 2016 election. Stone also threatened another witness, Randy Credico, including sending text messages telling Credico to “prepare to die” and threatening to harm Credico’s dog.

The federal sentencing guidelines call for Stone to be sentenced to between 7 and 9 years in prison. That’s a pretty stiff sentence for this kind of case, but it was largely driven by the threats to a witness and by the pervasiveness of Stone’s misconduct. The sentence was calculated by the U.S. Probation Office, which prepares a pre-sentence report for the judge that includes the guidelines calculations.

The career prosecutors who convicted Stone filed a sentencing memorandum on Monday, February 10. They took a pretty hard line on Stone and his misconduct, and agreed that a sentence within the guideline range recommended by the probation department would be appropriate. At the same time, they acknowledged the court might find that some of the guidelines enhancements should not apply, and that such a finding could result in a lower sentence. Overall, it was a tough but measured position and, considering that it was right in line with probation’s recommendation, it was certainly nothing unusual. In fact, they were following DOJ policy; Sessions had issued a memorandum in 2017 instructing prosecutors that in most cases they should request sentences within the guideline range.

But at around 2:00 am the following day, Trump tweeted out what he thought about the proposed sentence:

Hours later on Tuesday, senior DOJ officials announced that they thought the proposed sentence “extreme, excessive, and grossly disproportionate” and that they would be filing a new sentencing memorandum. That memorandum was filed later on Tuesday, with the Department now recommending a much lower sentence. On Wednesday, Trump tweeted out a congratulations to William Barr for “taking charge” of the Stone case.

The Tuesday Night Massacre

None of the names of the four career prosecutors who worked on the Stone case appeared on the new sentencing memo. They all moved to withdraw from the case in protest, and one of them quit the Department of Justice entirely. Some have dubbed this the “Tuesday Night Massacre,” a reference to the Watergate “Saturday Night Massacre” when Nixon’s Attorney General and Deputy Attorney General both resigned rather than carry out his order to fire Watergate special prosecutor Archibald Cox. (In this sequel, the role of Solicitor General Robert Bork, who ultimately agreed to fire Cox, is played by John Crabb, Jr., a supervisor at the U.S. Attorney’s Office, who signed the pleading after the other prosecutors refused and quit.)

Barr subsequently claimed in an interview that he had already decided to intervene in the Stone case before Trump’s tweet, and that he had no communication with the White House about it. But even if true, that’s beside the point. Everyone, including Barr, could predict how Trump would react to Stone’s proposed sentence. And there is absolutely nothing unusual or extraordinary about Stone’s case that would justify the personal attention of the Attorney General.

Former DOJ officials have been commenting on social media about how many cases they can recall where the Attorney General personally intervened about a sentencing recommendation. So far, the total for everyone I’ve seen – including me – is zero. And it would be ridiculous to suggest that Barr suddenly developed a newfound concern about the harshness of the federal sentencing guidelines. There’s no plausible explanation for Barr’s intervention other than that it was done to appease the president and try to cut one of his political cronies a break.

Michael Flyy
Michael Flynn

The Michael Flynn Case

The case of Michael Flynn, Trump’s former national security advisor, has seen some strange twists and turns. Flynn pleaded guilty to one count of lying to the FBI about his contacts with the Russian ambassador in the weeks leading up to Trump’s inauguration. He agreed to cooperate with the Mueller investigation. At the time of his initial sentencing date in December 2018, prosecutors told the court that Flynn’s cooperation was extensive and they did not oppose a sentence of probation. However the judge did not seem satisfied, and looked like he was poised to send Flynn to prison anyway. The sentencing was then continued to allow Flynn to cooperate further by testifying in the trial of his former business associate about their work on behalf of Turkey.

Leading up to that trial, however, prosecutors decided Flynn was lying to them, and they never put him on the stand. They went back to his sentencing judge and withdrew their recommendation of a sentence of probation, arguing for a sentence within the guideline range – which was still only 0-6 months.

Flynn’s new lawyer, Fox news regular and conspiracy theorist Sydney Powell, flipped out (that’s a legal term). She filed motions to withdraw Flynn’s guilty plea and to dismiss the case entirely, accusing prosecutors of gross misconduct. Prosecutors responded to those motions by returning to their earlier recommendation of a sentence of probation. That seemed odd, but not earth-shattering, since probation was always an option within the recommended guideline range.

But now it appears Barr may have had a hand in that reversal as well. There are reports that Barr has appointed an outside prosecutor to review the entire Flynn prosecution. And during the time the government softened its sentencing position, Trump removed the U.S. Attorney who had convicted Stone, Jessie Liu, and replaced her with Timothy Shea, a former close aide to Barr. The government’s backing off harsher sentencing recommendations as to both Stone and Flynn coincides with the arrival of Barr loyalist Shea as the acting U.S. Attorney.

The Fallout from Barr’s Actions

Barr’s very public interference with the criminal investigations of Trump’s political cronies has resulted in some extraordinary blowback. More than 2,000 former DOJ employees, from both parties, have signed a letter demanding that Barr resign. Barr’s former colleague in the George H.W. Bush Justice Department, former Deputy Attorney General Donald Ayer, wrote an article in the Atlantic demanding the same thing. The Federal Judges Association convened an emergency meeting to discuss the “deepening crisis” involving Barr and the DOJ. There are rumors that Barr is thinking about resigning, although I find that very hard to believe.

Trump, meanwhile, tweeted that he believes he has every right to intervene in criminal cases prosecuted by DOJ:

As disturbing as this Tweet may be, Trump is technically correct: there is no law that prohibits such interference. Only the norm of DOJ independence, and our traditional adherence to the rule of law, stand in his way. This norm is what separates us from authoritarian regimes, where leaders use criminal prosecution as a political weapon against their enemies. Events over the past year have shown us what a fragile norm that is, and how easily it can be discarded by an administration with no regard for the rule of law and concerned only about maintaining power.

You have to wonder what else might be coming between now and the election. What will become of all the other investigations that were referred out by Mueller, and with the ongoing investigations in the Southern District of New York that may implicate Trump, his business, his family, and his close associates? There seems little reason to be confident that they will be allowed to proceed unimpeded.

It also now seems entirely predictable that, at some point later this year, we are going to hear an announcement from DOJ of some kind of investigation that benefits the president. Maybe it will be a criminal investigation of whoever ends up being Trump’s Democratic opponent, or a report concluding that the entire Russia investigation was a sham and part of a “deep state” effort to take down Trump. Under Barr, the politicization of DOJ appears to be nearly complete.

There are still a few guardrails remaining. One is the independent judiciary. The judges in the Stone and Flynn cases will have the final word on their sentences, regardless of the DOJ recommendations – although Trump will, of course, always have the final card to play in the form of a possible pardon. And the dedicated career people at DOJ, who still believe in its mission, will continue to fight and protest from the inside. Perhaps more will follow the lead of the Stone prosecutors by stepping down rather than agreeing to go along with Barr’s corruption.

One day, one way or another, Trump and Barr will be gone. I hope that DOJ can recover from the damage they have done. It’s not easy to restore public trust once an institution’s integrity has been so badly tarnished. But the country did it after Watergate, and hopefully it can do it again. If not, then the damage to our system of justice and belief in the rule of law may become one of the most tragic legacies of the Trump administration.