Bridgegate Decision Looms over NCAA and Varsity Blues Cases

One year ago the Supreme Court decided the “Bridgegate” case, Kelly v. United States, limiting the reach of federal fraud laws. It was immediately apparent that Kelly posed a potential threat to some major ongoing fraud prosecutions, including the NCAA recruiting scandal and the “Varsity Blues” college admissions scandal. I criticized both of those prosecutions before Kelly was decided. Now, as challenges work their way through the lower courts, those cases face serious threats from Kelly – and could result in the Supreme Court stepping in once more.

The Bridgegate Decision

In 2013 the Democratic mayor of Fort Lee, NJ refused to endorse Republican governor Chris Christie for re-election. Christie’s deputy chief of staff Bridget Anne Kelly and others conspired to punish the mayor by closing two of the three inbound lanes from Fort Lee onto the George Washington bridge, causing massive traffic jams for several days. They falsely claimed that the lanes were closed for a traffic study.

Kelly and her co-defendant William Baroni were convicted of federal fraud. Prosecutors charged they had defrauded the Port Authority, the government entity that controls the bridge, in two different ways: by “commandeering” the bridge lanes to further their scheme, and by depriving the Port Authority of the wages it paid to the workers who were necessary to carry it out.

In a unanimous opinion in May of last year, the Supreme Court threw out the fraud convictions. It began by noting that federal fraud requires a deprivation of money or property. That requirement was fatal to the government’s theory about commandeering the bridge lanes. The Court held the defendants did not deprive the Port Authority of its property interest in the lanes. They merely decided how use of the lanes would be allocated and which drivers had the right to access them at a particular time. Those “intangible rights of allocation, exclusion, and control,” the Court held, do not create a property interest.

The Court also rejected the theory based on the wages paid to the bridge workers. The object of a fraud scheme must be to obtain money or property; here the object of the scheme was to create a traffic jam as political retribution. The wages were not obtained by the defendants and were merely “an incidental byproduct of the scheme,” not the object of the scheme itself. As a result, even though those costs to the victim were foreseeable, they could not form the basis of a fraud conviction.

Kelly thus highlighted two characteristics of federal fraud that are keys in the NCAA and Varsity Blues prosecutions: 1) a fraud scheme must seek to deprive the victim of property, not something else; and 2) deprivation of that property must be the object of the scheme, not merely an incidental result.

NCAA Basketball logo

Kelly and the NCAA Prosecution

The NCAA case involves corruption in college basketball recruiting. (I wrote about the case on the blog here and here, and in the Washington Post here.) James Gatto, a marketing director for Adidas, and two co-defendants were prosecuted for secretly paying the families of star high school basketball players in exchange for their agreement to attend particular universities whose athletic programs were sponsored by Adidas. These payments were not unlawful, but they did render the students ineligible under NCAA rules that forbid athletes from being compensated. If the payments were later discovered, the universities would be subject to fines and other sanctions from the NCAA.

Gatto and his co-defendants were convicted at trial, and last January those convictions were upheld by the Second Circuit Court of Appeals. That court held that Kelly does not require reversal of the convictions – but that conclusion seems dubious.

The government argues that the defendants defrauded the university “victims” in two ways. First, by helping the ineligible players attend the universities and obtain athletic scholarships, they deprived the universities of property in the form of the scholarship money. Second, by concealing the payments that rendered the athletes ineligible, they deprived the universities of information necessary to decide how to allocate their scholarship assets – a fraud theory known as depriving a victim of the “right to control” its property.

The Scholarship Money and the Object of the Scheme

When it comes to the scholarship money, Kelly suggests the government’s case is flawed because that money was not the object of the scheme. The defendants themselves, of course, did not obtain that money. The object of their scheme was to have the athletes play at the university in question so Adidas would benefit from the anticipated success of the sponsored basketball program. Any scholarship money (which the universities were going to pay in any event, either to these players or to someone else) was merely an incidental byproduct of the scheme.

The government repeatedly conflates the goal of having the student attend a particular university with the goal of having that student receive scholarship money. For example, in its supplemental brief to the Second Circuit on the impact of Kelly, the government argued that “the object of the scheme with which the defendants were charged was to cause players, in return for cash payments, to attend—and thus accept scholarships from— Adidas-sponsored schools.” (emphasis mine). It’s the “and thus” leap that’s the problem. Attending a school and accepting scholarship money are not the same, and the object of the defendant’s scheme was only the former, not the latter.

To illustrate, consider this hypothetical: John Smith, a star high school basketball player, is debating between attending school A and school B. School A is not sponsored by Adidas, but would offer Smith a full-ride scholarship to attend. School B is sponsored by Adidas but cannot offer a scholarship because all those funds are committed for the year. However, Smith has an uncle who is an alumnus of school B and would love for Smith to play there, and who offers to cover Smith’s tuition and expenses if he will attend school B.

On these facts, the defendants would pay Smith to attend school B, not school A.  That’s because the object of the scheme is to have the star player at the school sponsored by Adidas, not to obtain the scholarship money. As long as Smith is at the right school, the defendants don’t care whether he received scholarship money or paid for it some other way. And because the scholarship money was not the object of the scheme, the payment of that money cannot support a fraud conviction.

It’s true that during the course of the scheme the universities paid scholarship money, just as it was true in Kelly that during the course of the scheme the Port Authority workers were paid. But as the Court emphasized in Kelly, just because someone spends money in the course of the scheme doesn’t mean that money was the scheme’s object. And although the value of the scholarship money was greater than the few days of wages paid to the workers, the amount of money isn’t the point; it’s the fact that the money, in whatever amount, was not the object of the scheme.

The Second Circuit addressed this issue in a rather perfunctory way. It asserted that the financial aid “was at the heart of the Defendants’ scheme,” but didn’t really grapple with the “object of the scheme” argument. It repeated the government’s error of essentially equating the goal of having a student attend a particular school with the goal of having that student receive scholarship money.

The “Right to Control” Theory

The government’s alternative theory is that Gatto and the other defendants deprived the universities of information necessary to allow them to decide how to spend their scholarship money. This argument rests on a controversial fraud theory known as “right to control.” That theory holds it is a fraud to deprive a victim of valuable information that would allow the victim to make informed economic decisions about his or her property. Courts that embrace the theory hold that the intangible right to decide how to use one’s property is itself a property interest.

The right to control theory has never been approved by the Supreme Court. The circuit courts of appeal are divided over whether it is valid. The Second Circuit, where the NCAA case is pending, has long recognized the theory. But other courts of appeal have rejected it and held that the intangible right to control one’s property is not itself a property interest.

The right to control theory was adopted by the lower courts in Kelly as an alternative basis to uphold the convictions. In overturning those convictions, the Supreme Court did not directly address the theory. But the opinion’s language suggests it would not fare well before the Court. Kelly squarely rejected the idea that the intangible rights of “allocation, exclusion, and control” of the bridge lanes created a property interest that could be the object of a fraud. That same idea — depriving the victim of control of his assets — is the basis of the right to control theory. And a scheme to withhold information about a victim’s property is not equivalent to a scheme to obtain the property itself.

The jury in the NCAA case was instructed that they could rely on the right to control theory to convict. The Second Circuit panel that upheld the convictions simply relied on Circuit precedent to hold that the right to control theory was valid. Despite compelling arguments from the defense in their supplemental brief, the Second Circuit did not address whether the right to control could survive Kelly. I don’t believe it can.  

Image of US Supreme Court

Will the Supreme Court Weigh In Again?

After the Second Circuit upheld their convictions, Gatto and his co-defendants petitioned that court to stay its ruling – thus allowing them to stay out of jail – until they were able to petition for review by the Supreme Court. On April 30, in a surprising ruling, the Second Circuit agreed. The defendants’ petition for certiorari is due on August 10.

The percentage of petitions that the Supreme Court accepts for review is almost vanishingly small. So it’s significant that the Second Circuit itself recognized the issues raised by the NCAA case are serious enough that SCOTUS might want to take a look. In addition to questions about the scope of Kelly, the circuit split on the right to control theory makes that issue ripe for Supreme Court review.

Gatto and his co-defendants have some compelling arguments in addition to those discussed above. I’ve always thought one of the strongest is their lack of any intent to defraud. The law distinguishes between defrauding someone and merely deceiving them. Fraud requires an intent that the victim would be injured in some way if the scheme is successful. But these defendants had no intent to injure the university “victims” – quite the opposite. They were trying to help them get the best basketball players in the country. And the defendants would only benefit from the scheme if the universities also benefited – they were all on the same team. The defendants may have conspired to deceive the universities about violations of the NCAA rules, but they didn’t conspire to defraud them.

A final interesting wrinkle is that just last week the Supreme Court decided another case involving the NCAA. In NCAA v. Alston the Court unanimously found that the NCAA rules limiting the amount of education-related benefits schools may provide to student athletes violate federal antitrust laws. The overall tone of the opinion is decidedly hostile to the NCAA and its rules governing student athletes. In particular, Justice Kavanaugh wrote a stinging concurrence harshly critical of the student compensation rules and noting that “The NCAA is not above the law.”

Alston is not a criminal case and is not directly on point. But it suggests the Court may not look kindly upon a case that effectively makes a mere violation of the NCAA compensation rules the basis for a criminal prosecution.

University of Southern California

The Varsity Blues Investigation

The Varsity Blues case is the massive college admissions scandal involving dozens of parents and coaches. (I wrote about the investigation on the blog here and here, and in the Washington Post here.) The mastermind of the scheme was admissions counselor Rick Singer, who helped parents cheat in order to get their children into elite universities. There were two different schemes involved. In the first, Singer would bribe proctors administering the SAT or ACT college admission exams in order to allow Singer’s co-conspirator either to take the exam for the student or to correct the student’s answers. In the second scheme, Singer would arrange for parents of high school students to make substantial payments either to a university athletic program or to Singer’s own sham foundation, and then would bribe coaches to admit those students as recruited athletes even though they were not qualified.

This investigation has been chugging along for a couple of years now, and many defendants have already pleaded guilty. But some are heading to trial, and as the cases proceed the impact of Kelly is being felt.

The fraud charges in the Varsity Blues cases allege two different deprivations of property. The parents generally paid full tuition, so (unlike the NCAA case) property in the form of scholarship money is not at issue. Instead, the government alleges that the defendants defrauded the testing companies of their property in the form of accurate student test scores. It also alleges they defrauded the schools of their property interest in their admissions slots by causing them to admit unqualified students. Both of these theories are called into question by Kelly.

The test scores theory seems particularly weak. It’s difficult to see how the testing companies have a property interest in the accurate scores of any particular student. A property interest is typically something of value that one can exclusively control and enjoy and potentially transfer to others. There is no market for test scores; they are not bought and sold. There may have been harm to the integrity of the testing process itself, but that seems like an intangible business interest that would not constitute property.

As for admissions slots, those definitely are valuable to the colleges, but it’s less clear they qualify as property as the Supreme Court has defined it. Again, they are not something routinely sold or traded in a commercial sense. The harm to the colleges also seems more like a harm to the integrity of their admissions process, not to any identifiable property interest.

The Varsity Blues cases are divided up among several different judges in the District of Massachusetts, and they have already reached different conclusions concerning the effect of Kelly. Back in June of last year in a case involving multiple Varsity Blues defendants, United States v. Sidoo, et al, Judge Gorton rejected a challenge to the indictment based on Kelly. Judge Gorton held that the admissions slots to universities are property interests for purposes of mail and wire fraud. He also held that the integrity of their testing process amounts to a property interest of the companies that administer the SAT and ACT exams.

But in a different Varsity Blues case last November, United States v. Ernst, Judge Talwani of the same court reached the opposite conclusion. She concluded that the case is really about harm to the integrity of the admissions process, which is not property under the fraud statutes. And last month in yet another Varsity Blues case, United States v. Khoury, the defendant urged yet another judge, Judge Casper, to find that college admissions slots don’t qualify as property. Judge Casper’s decision is still pending.

The Varsity Blues cases seem to fit more comfortably under a “right to control” theory: the universities were deprived of information about the students’ true qualifications, which would have been important to them in deciding how to allocate their admission slots. But the First Circuit Court of Appeals, which includes Massachusetts, has never explicitly approved that theory – which may explain why prosecutors are not emphasizing it. (In her decision, Judge Talwani did consider the right to control as an alternative and ruled that it did not apply.)

Kelly will not resolve all of the charges in the Varsity Blues cases. The different cases vary widely in their facts and legal issues raised. There are other charges, such as honest services fraud, not affected by Kelly. I continue to believe that some of the parents are going to have a strong defense by claiming a lack of knowledge of the details of Singer’s scheme. And as I explained here, I also still believe the money laundering and conspiracy charges in some of the cases are flawed. But with different Massachusetts district judges reaching different conclusions, the Kelly issues are destined for review by at least the First Circuit.

I continue to believe that both the NCAA and Varsity Blues prosecutions are, at best, marginal fraud cases and a poor use of prosecutorial resources. Kelly provides the defendants in those cases with some important new tools to persuade the courts that the cases are legally flawed.

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Bridgegate and Flynngate

Last Thursday was an eventful day in the white collar world. In the morning the Supreme Court decided Kelly v. United States, the “Bridgegate” case, a significant ruling concerning the scope of federal mail and wire fraud. Then in the afternoon came word that the Department of Justice had moved to drop the case against Trump’s former national security advisor Michael Flynn. The Bridgegate decision was not a surprise, and I think the Court got it right. As for the Flynn case, DOJ’s action was deeply troubling and, frankly, dishonest — the latest demonstration of Attorney General William Barr’s politicization of the DOJ.

Former NJ Governor Chris Christie

The Bridgegate Decision

The facts of Bridgegate are familiar by now. In September 2013, officials at the Port Authority of New York and New Jersey closed two of the three inbound lanes on the George Washington Bridge that spans the Hudson River between New Jersey and Manhattan. This caused several days of severe traffic gridlock that paralyzed the town of Fort Lee, New Jersey. School buses were unable to transport students, first responders had trouble responding to calls, and tens of thousands of commuters were stuck in hours-long traffic jams.

When the incident was investigated, officials falsely claimed they had closed the lanes to conduct a traffic study. The true purpose was to punish the Democratic mayor of Fort Lee for refusing to endorse then-Republican Governor Chris Christie for re-election. The scandal caused severe political damage to Christie, who once had presidential ambitions. Christie himself was not prosecuted, but federal prosecutors did charge his Deputy Chief of Staff Bridget Anne Kelly and Port Authority official William Baroni with fraud for their role in the scheme. They were convicted at trial and sentenced to prison.

The issue in the case was never whether or not the defendants had misbehaved. Everyone agrees their actions were deplorable. The issue was whether it was criminal, and in particular, whether it was federal fraud. In a unanimous opinion by Justice Kagan, the Court ruled it was not.

Before 2010, prosecutors almost certainly would have charged this case as honest services fraud. That popular theory charged defendants with scheming to deprive victims of the intangible right of fair and honest services that they were owed by someone – most often by a public official. The theory was used to prosecute a wide range of political misconduct that was not necessarily otherwise illegal. But in the 2010 case of Skilling v. United States, the Court ruled that honest services fraud must be limited to cases involving the payment of bribes or kickbacks – core corruption. There were no bribes or kickbacks involved here.

With honest services fraud off the table, prosecutors chose to charge the bridge-closing scheme as wire fraud and federal program fraud. Those fraud statutes require proof that the defendant sought to deprive the victim of money or property. Prosecutors had two different theories. The first was that the defendants had “commandeered” the bridge lanes to carry out their scheme and had thereby deprived the Port Authority of its property. The second was that the defendants had deprived the Port Authority of the salaries of the employees whose labor was necessary to execute the scheme, such as those who manned the toll collection booths.

The Limits of Fraud

The Supreme Court rejected both arguments. The Court first held the defendants did not deprive the Port Authority of property by shifting the bridge lanes. It relied primarily on a 2000 case called Cleveland v. United States. In Cleveland the defendants were convicted of defrauding the state of Louisiana when they obtained video poker licenses by lying on the license application forms. The Court  threw out those convictions, holding that an unissued license was not property in the hands of the state and so could not support a fraud conviction. The state’s interest in the unissued licenses was a regulatory interest, not a property one.

The Court in Bridgegate held that the same was true of the bridge lanes. The Port Authority was not deprived of any property; it still controlled the lanes and collected the tolls. All the defendants did was re-allocate the use of the lanes by different drivers. Like issuing a license, that is a government regulatory power, not a property interest. Even if the defendants made that decision for a bad reason and lied about it, that did not deprive the Port Authority of property for purposes of the fraud statutes.   

The Court likewise rejected the claim that the defendants had deprived the Port Authority of the salaries of the employees who carried out the scheme. Those employees were still doing the work they were hired to do, moving cones and collecting tolls. If the defendants lied about the true reason for having the employees carry out particular tasks, that was not enough to constitute fraud. The object of a fraud scheme must be to obtain money or property; here the object was to create a traffic jam. Salary payments to Port Authority employees were merely incidental side-effects of that scheme. For the payment of those salaries to constitute a fraud, the defendants would have had to order the employees to perform some personal task for them unrelated to their Port Authority duties. That was not the case here.

Not All Misconduct Is Criminal

Bridgegate was the latest example of federal prosecutors trying to use expansive fraud theories to pursue political misconduct that was not otherwise clearly criminal. The Bridgegate defendants did not use their public positions for personal financial gain, as in a bribery case. Closing the lanes was not otherwise illegal our outside of their authority. They just lied about why they were doing it. But politicians routinely lie – or more politely, engage in “spin” – about why they are taking actions that are otherwise within the scope of their duties. Without more, such political misconduct is usually not considered criminal.

Even if the conduct here could have been criminal, the Court said that was a matter for New Jersey state authorities, not the federal government. The Court expressly noted it was possible New Jersey criminal remedies could apply, and that “federal fraud law leaves much public corruption to the States (or their electorates) to rectify.” Even absent a state prosecution, the state’s residents have remedies at the ballot box and can exact political penalties, as they did by tanking Governor Christie’s career. But ever since the McNally case first rejected the sweeping honest services fraud theory in 1987, the Court has been wary of allowing federal prosecutors to use federal fraud statutes to set “standards of disclosure and good government for state and local officials.”

I’ve been critical of a number of the Court’s recent public corruption decisions, but I think they got Bridgegate right. This was bad and harmful behavior, but it wasn’t federal fraud. If the case had gone the other way, then almost any case of state or local political mischief could be the subject of a federal criminal prosecution, because there will almost always be a salary paid to someone in connection with it. Federal prosecutors should not try to stretch fraud theories to cover local political hardball that can be handled at the local level, either by state prosecutors or by the voters. More broadly, I think Bridgegate was one of several recent high-profile cases where the appropriate remedy was probably not a criminal prosecution.

Michael Flynn
Michael Flynn

The Flynn Motion to Dismiss

In last Thursday’s other news, the government filed a motion to dismiss the criminal case against former national security advisor Michael Flynn. Flynn pleaded guilty in December 2017 to lying to the FBI about his contacts with the Russian ambassador on behalf of the incoming Trump administration. He cooperated extensively with the government during the Mueller investigation. But in 2019, after the Mueller probe was completed, Flynn changed his mind.  He fired his attorneys from the top D.C. law firm of Covington and Burling and hired Sydney Powell, a vocal DOJ critic and Fox News regular. She began an aggressive campaign to withdraw Flynn’s guilty plea and have the case dismissed based on alleged government misconduct.

Attorney General Barr recently appointed the U.S. Attorney from St. Louis, Jeff Jensen, to review the handling of Flynn’s case. Now, reportedly on Jensen’s recommendation, Barr has decided DOJ should drop the Flynn case altogether and that it never should have been brought in the first place. But the government’s arguments in support of this motion to dismiss are dishonest and disingenuous.

Flynn pleaded guilty to one count of false statements, 18 U.S.C. 1001. DOJ now claims it doesn’t believe that Flynn’s false statements were material. Materiality is a very low bar. To be material, a false statement does not need to actually affect any government decision, it only needs to be the type of statement that has the potential to do so.

DOJ says that Flynn’s lies about his contacts with the Russian ambassador could not have been material because the FBI did not have a legitimate reason to interview him. At the time of Flynn’s interview, the FBI was conducting an investigation, code-named Crossfire Hurricane, into the Trump campaign’s contacts with Russia and Russian interference in the election. It had a separate, related investigation into Flynn and his own Russian contacts, code-named Crossfire Razor. Having found nothing incriminating, the FBI was preparing to close Crossfire Razor when it learned about Flynn’s contacts with the Russian ambassador on behalf of the president-elect. In light of that new information, the FBI decided to keep the investigation of Flynn open until it could interview him about those contacts.

Flynn’s supporters have characterized this sequence of events as nefarious and as evidence that Flynn was “set up.” And DOJ has now said it basically agrees. It claims that, having decided to close the Flynn investigation, there was no good reason for the FBI to interview him, even after learning the new information about his conversations with the Russian ambassador. And because the interview was therefore not properly predicated, DOJ says, any lies that Flynn may have told could not possibly have been material.

Flynn’s Statements Were Material

This is nonsense on several different levels. First, whether or not the FBI had properly opened or closed an internal case file has nothing to do with whether Flynn lied about something that matters. If the FBI screws up some internal docket entry it doesn’t mean a witness gets a free pass to lie. I don’t know of any case where a false statement to the FBI was found not to be criminal because the interview was not “properly predicated.” Why the FBI is talking to you and whether you choose to tell material falsehoods are completely unrelated.

Second, you don’t have to be investigating someone personally to have a reason to interview them. Even if the FBI believed Flynn himself was not a security risk and they should close their file on him, there would still be reason to talk to him in connection with Crossfire Hurricane. It would be an odd investigative world where the only people the FBI was allowed to speak to were those who were personally under investigation. People who are interviewed and are not under investigation are known as “witnesses.” And Flynn was, at the very least, an important witness to Trump-Russia contacts who needed to be interviewed.

Whether or not the Crossfire Razor file was properly open or closed, the FBI had every reason to talk to Flynn as part of the broader Crossfire Hurricane investigation. Remember, the focus of that investigation was Russian contacts with the Trump campaign. Flynn had been a part of the campaign, and the FBI had just learned that he had recent contacts with the Russian ambassador. How could the agents possibly ignore that? 

Flynn lied to the FBI by denying he asked the Russian ambassador not to retaliate based on the sanctions the Obama administration had imposed on Russia in December 2016. Why was he having that conversation?  Who asked him to do it? Was there a possible link between the incoming administration promising to ease up on Russia and the Russian help for Trump during the election? There’s no question the FBI had a good reason to talk to Flynn, and that Flynn’s lies about his conversations with the ambassador had the potential to influence the FBI’s fledgling investigation into the Trump-Russia connection. That’s all that materiality requires.

What’s more, Judge Emmet Sullivan, the judge in Flynn’s case, has already ruled that Flynn’s statements were material. He made that ruling when denying Flynn’s earlier motion to dismiss based on alleged government misconduct. But the government now says (in a footnote) that doesn’t really count because the judge didn’t have all of the relevant facts before him – even though nothing in the government’s motion to dismiss should come as any news to the judge, and none of the supposedly “new” facts affect materiality.

The government also now claims, somewhat half-heartedly, that Flynn’s answers were not clearly lies, that they were “equivocal” or “indirect.” Again, this flatly contradicts both the evidence in the case and the position taken by the government for the past two years. And Flynn himself has admitted under oath  – twice — that he knowingly lied to the FBI. But as with Judge Sullivan, prosecutors now suggest that Flynn didn’t really know what he was doing.

As I wrote in my Washington Post column about the Flynn motion:

So to sum up: The government claims it cannot prove materiality when the judge has already ruled the lies were material, and the government says it cannot prove Flynn lied when he has already admitted twice that he lied. Such a bizarre argument could be put forward only in a Trumpian world where facts truly don’t matter.

The Politicization of the DOJ

The reaction by former Department of Justice officials to the Flynn motion has been almost uniformly negative. Former U.S. Attorney Chuck Rosenberg wrote in the Washington Post that there’s a long list of people who thought Flynn’s lies were material – including Trump himself. Mary McCord, Assistant Attorney General for National Security at the time of Flynn’s interview, wrote in the New York Times that the investigation and interview of Flynn were entirely appropriate and justified, that his lies were material, and that DOJ had wrongly twisted her words in the motion to suggest otherwise. Jonathan Kravis, one of the career prosecutors who resigned from the Roger Stone case when Barr intervened at Stone’s sentencing, wrote that the Flynn motion to dismiss was another “disastrous mistake” highlighting the politicization of the DOJ. And more than two thousand former DOJ officials of both parties signed an open letter protesting Barr’s actions and urging Judge Sullivan to scrutinize them carefully.

Attorney General William Barr

This Flynn motion is similar to the Roger Stone incident in a number of ways. In both cases, the career prosecutors assigned to the case withdrew in protest after they were undermined by the Attorney General’s intervention. In both cases that intervention was signed off on by acting U.S. Attorney for D.C. Timothy Shea, a longtime Barr aide who was recently installed to replace the former U.S. Attorney Jessie Liu. Both incidents involved attempts to undermine or discredit cases brought by the Trump’s nemesis, special counsel Robert S. Mueller. And both involved personal intervention by the U.S. Attorney General to benefit political allies of the president, in ways that would never happen with an ordinary defendant.

It will be very interesting now to see how Judge Sullivan acts on the motion. He has a number of options. The rules say the case may be dismissed only with “leave of court.” It would be rare for a judge to buck a prosecutor’s decision to drop a case – but this is far from a typical case. Judges don’t like to be manipulated, and you can imagine Judge Sullivan demanding that DOJ officials explain in person what exactly changed that caused them to drop a case they had defended for two years. As a sign that this may not be over, on May 12 Judge Sullivan issued an order essentially inviting outside parties to file amicus brief about what he should do. A group of sixteen former Watergate prosecutors has already filed a motion seeking permission to do so.

Regardless of the outcome, this is an outrageous and disheartening demonstration of the current rot at the Department of Justice. It’s more clear than ever that Barr sees his role as protecting the president and manipulating the justice system to benefit Trump’s political cronies. There is one brand of justice for the president’s friends, and another brand for everyone else. Barr’s decision also protects Trump from taking the political heat that would come if he were to pardon Flynn; instead, Barr will simply drop the case while claiming that’s what justice requires.

This latest incident makes one fear what else is coming. You can almost guarantee that between now and the election there will be reports “revealing” that the entire Mueller investigation was a hoax and an attempt by the FBI and the Obama/Biden administration to take down Trump. And I wouldn’t be surprised to see the announcement of some kind of criminal investigation of Joe Biden or his family. As others have pointed out, for an authoritarian the first step is using the justice system to benefit your friends. The next step is using it to investigate and punish your enemies.

That’s why what is happening is so frightening – and so dangerous.

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