Supreme Court Poised to Limit Computer Fraud Statute

Suppose your employer prohibits using the company computer system for personal purposes. You’re aware of the policy but you’re also a little behind on your Christmas shopping, so while logged in at work you spend some time on Amazon buying gifts. If your boss found out you might expect to be reprimanded, maybe even fired. You probably wouldn’t think you were potentially subject to federal prosecution. But under a legal theory advanced by the government before the U.S. Supreme Court last week in Van Buren v. United States, your holiday shopping could indeed be a crime. Fortunately, the Court seems poised to reject the government’s approach.

computer hacker

The Computer Fraud and Abuse Act

The criminal law in question is called the Computer Fraud and Abuse Act, or CFAA, 18 U.S.C. §1030.  The CFAA is the primary federal statute used to prosecute computer-related crime. It’s a complicated statute with a number of different sections. But in general, the CFAA prohibits breaking into a computer to harm that computer or steal information, commonly known as hacking. It prohibits sending malicious code or viruses that damage a computer or that allow the sender to obtain information without authorization — including “phishing” schemes. The CFAA also prohibits trafficking in computer passwords and extortion by threats to harm a computer or the information it contains.

A high-profile recent case involving the CFAA was the July, 2018 indictment brought by special counsel Robert Mueller of twelve Russian intelligence officers for computer hacking related to the 2016 presidential election. The indictment charges that the Russian agents hacked into computers and email accounts used by scores of individuals and organizations associated with the Hillary Clinton campaign and other Democratic organizations. The lead charge in that indictment: conspiracy to violate various provisions of the CFAA.

Van Buren v. United States

The Van Buren case argued before the Court last week involves a particular subsection of the CFAA, 18 U.S.C. §1030(a)(2)(C). Under that subsection, a person commits a crime whenever he “accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from that computer. The term “exceeds authorized access” is further defined to mean, “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” §1030(e)(6). The issue in Van Buren is the proper interpretation of the term, “exceeds authorized access.”

The defendant, Nathan Van Buren, was a police officer in Cumming, Georgia.  As part of an FBI sting, he ended up accepting several thousand dollars from Andrew Albo, an informant cooperating with the FBI. In exchange, Van Buren agreed to search a police database for a vehicle license plate number Albo gave him. (Albo told Van Buren the car belonged to a woman he had met at a strip club and he wanted to be sure she was not an undercover police officer.) Van Buren performed the search for Albo in the Georgia Crime Information Center database. He had been trained on the use of that database and knew he was allowed to use it only for legitimate law enforcement purpose.

Van Buren was convicted for violating section 1030(a)(2). There was no question he was authorized to access the police database. But the government argued Van Buren had exceeded his authorized access, and thereby obtained the license plate information, by performing the search for an improper purpose – namely, in exchange for a bribe. 

Image of US Supreme Court, which decided the Bob McDonnell case
United States Supreme Court

Van Buren’s Position

In their briefs to the Court, Van Buren and those amici who support him argued that Section 1030 is, at heart, a computer hacking statute. It is primarily aimed at conduct that is the electronic equivalent of breaking and entering. According to Van Buren, the prohibition against exceeding authorized access therefore criminalizes obtaining information only when a person has no right at all to access that information. An example would be a Pentagon employee who is authorized to use the Department of Defense computer system for limited purposes related to her job, but then uses a stolen password to gain access to a different part of that system she is not authorized to view.

Van Buren unquestionably had the right to enter the database and access license plate data. In this instance he did so for an improper reason: because he had been bribed. That might subject him to job discipline or some other legal sanction, but it does not, Van Buren argued, violate the CFAA.  “Exceeding authorized  access” does not apply to obtaining otherwise accessible information for an improper reason. It applies, he argued, only when the defendant had no right to access the information under any circumstances.

Van Buren cited a number of examples of the potential consequences of the government’s position. Suppose workplace policy prohibits an employee from using the company’s computer system for social media, but she uses that system to log onto Facebook. Or an employee has a work-provided Zoom account that is to be used only for business but uses it for a group family chat on the weekend. Or someone uses a dating website but, in violation of the site’s terms of services, lies in his profile about how tall he is or about his age and then obtains information about potential partners.

 In each of these examples, the person has the right to access the information that was obtained, but did it in ways or for reasons that were not authorized. That is Van Buren’s situation as well. If the government is correct, he argued, then all of the people in those examples are criminals: they exceeded their authorized access by violating workplace policies or website terms of service.

Computer law expert Professor Orin Kerr, who filed an amicus brief, agreed with Van Buren and framed it this way: the CFAA prohibits someone circumventing technological barriers, such as a password requirement, to obtain information the person is not otherwise authorized to obtain. It does not apply to someone who merely ignores verbal or written barriers, such as instructions from an employer or requirements in a website’s terms of service. Here Van Buren violated police department policy, but he did not breach any technological barriers to obtain the information. Accordingly, the CFAA should not apply.

US Dept of Justice
U.S. Department of Justice

The Government’s  Response

The government responded that Van Buren’s argument ignores the plain text of the statute, and that the text is enough to decide this case. The statute prohibits exceeding authorized access and thereby obtaining information “that the accesser is not entitled so to obtain.” The key, the government argued, is the word  “so.” If Van Buren is right, that “so” is unnecessary. Congress would have just written “that the accesser is not entitled to obtain,” and Van Buren would be in the clear. But the word “so” in the phrase “so to obtain” means that the manner or circumstances of obtaining the information matters: “so” means that the defendant was not entitled to obtain the information under the circumstances in which he did, even if he could have properly obtained it under other circumstances. The statute therefore governs insiders who have some limited authority to access the relevant computer information but exceed those limits.

As for Van Buren’s hypotheticals about everyday computer users suddenly becoming criminals, the government argued those concerns are wildly exaggerated. Such cases are not being prosecuted, and Van Buren has not identified any such cases in the past that led to a sustained conviction. Potential cases involving people using Facebook at work are just a fantasy. They would never be brought in the real world.

The government also suggested that the hypothetical cases posed by Van Buren might not violate the statute because of other statutory terms. For example, the government argued that the term “authorization” means a user has been granted specific, affirmative, individualized permission to use the system. It might not apply to websites such as Facebook that simply take all comers who are willing to open an account.

The  Oral Argument – Reviewing the Parade of Horribles

During the oral arguments on November 30, several of the Justices appeared skeptical of the government’s arguments and concerned about the potential breadth of the statute.

The Court spent a good deal of time discussing Van Buren’s “parade of horribles,” the hypotheticals about all those who might be ensnared by the government’s interpretation. Justice Thomas wondered whether the parade was real, asking whether there were any real-world examples of the types of cases Van Buren was warning against. Jeffrey Fisher, counsel for Van Buren, admitted there were no recent examples. But he pointed out that the Court has repeatedly held it can’t approve a sweeping interpretation of a criminal statute based on the government’s promise that it will enforce it benevolently.

Chief Justice Roberts and others raised the idea of a different parade of horribles: bad actors who could NOT be prosecuted if Van Buren’s interpretation is adopted.  What about a bank employee, for example, who has legitimate access to computer files containing customer social security numbers but then accesses those files to steal the numbers and sell them? Fisher responded that other criminal laws would cover most such misconduct. Justices Gorsuch and Sotomayor appeared to agree that, given the number of federal and state criminal laws available, any such misconduct not covered by the CFAA could likely still be prosecuted.

Justice Sotomayor and others pressed the Assistant Solicitor General Eric Feigin on his suggestion that other terms, such as the definition of “authorization,” could control the sweep of the CFAA. She said the government was relying on narrower definitions that did not appear in the statute itself. Fisher also had noted in his briefs that there was no precedent for those narrower interpretations and that the government was merely raising them as hypotheticals, not committing to follow them.

Justice Kagan pressed both attorneys on the role of the word “so.”  She noted it requires an antecedent and asked each side what they thought “so” referred back to. Fisher replied that “so to obtain” merely refers to using a computer to obtain the information. That means it would not be a defense for an employee who hacked into a portion of the office computer to argue that he could have gotten the same information by some other means anyway. Even if that were true, he was not entitled “so” to obtain it – in other words, by hacking the computer.

Feigin argued that “so” referred back to the circumstances under which the defendant was obtaining the information. Van Buren was not authorized “so to obtain” the license information because the way he obtained it violated the workplace restrictions covering his use of the database.

Justice  Neil Gorsuch
Justice Neil Gorsuch

A Pattern of Government Overreach

I think the Court is likely to rule in Van Buren’s favor and reject the government’s sweeping interpretation of the CFAA. The battles over the significance of the word “so” are fascinating (at least to legal nerds), but in the end I don’t think they yield a clear winner. In light of that, the Court is likely to adopt the reading that avoids vastly increasing the scope of federal criminal law.

During his questioning of Feigin, Justice Gorsuch raised what I think is a key point. He noted there has been a string of cases in recent years where prosecutors have sought to expand the scope of federal criminal law in pretty sweeping ways. In each case, the Court has rejected the government’s position. I wrote about that trend in this post: White Collar Crime, Prosecutorial Discretion, and the Supreme Court. It stems both from the Court’s approach to federal criminal law in general and from a characteristic of white collar statutes like the CFAA in particular.

In general, the Court is reluctant to read federal criminal laws expansively, at least absent a clear sign of Congressional intent. In McNally v. United States in 1987, where the Court first rejected the theory of honest services fraud, part of its rationale was a concern that the government’s interpretation would dramatically increase the scope of federal criminal law. Just last year in Kelly v. United States, the Court reaffirmed that  principle when it unanimously rejected the government’s attempt to use federal fraud statutes to prosecute the defendants in the Bridgegate scandal. The Court noted that the defendants’ behavior was deplorable, but that not every instance of political misconduct amounts to a federal fraud.

White collar statutes in particular often raise concerns about their potential scope. They are written broadly to avoid loopholes that may be exploited by clever criminals. They deal not with clear crimes like assault or robbery but with fuzzier concepts such as fraud and corruption whose parameters are less well-defined. As a result, they often sweep within their terms conduct that most would agree does not merit  a federal prosecution.

For example, if I call in sick and lie to my employer so I can go to the ball game, that fits all the legal requirements for federal wire fraud. Fortunately, we don’t see cases of such truant employees clogging the federal courts. That’s because of prosecutorial discretion: prosecutors exercising good judgment about which cases are actually worth bringing and which should not be pursued even if they technically violate the statute.

But that discretion must be exercised wisely. In cases raising concerns about the scope of federal criminal statutes, the government’s response often has been, essentially: “Trust us. You should interpret the statute broadly, to allow us flexibility to pursue the appropriate cases. We’d never bring the trivial or outrageous cases that the defendant is claiming would result.”

That’s also what the government is saying in Van Buren: trust us, we’d never prosecute the employee who does holiday shopping at work. But in recent years the Court has been increasingly unwilling to take the government at its word. Instead, it has narrowed the statutes in question to limit prosecutors’ discretion.

Consider, for example, the Court’s 2016 decision in McDonnell v. United States, the corruption prosecution of the former governor of Virginia. McDonnell and his allies presented their own parade of horribles to the Court. They argued that if the government’s sweeping interpretation of “official act” in bribery law were adopted, federal officials would be at the mercy of prosecutors who might charge bribery based on politicians engaging in routine political courtesies. Part of the government’s response was, essentially, “we won’t bring those kinds of cases and never have.” That wasn’t enough for the Court: it unanimously rejected the government’s argument, threw out McDonnell’s conviction, and drastically narrowed the scope of bribery law.

To explain this Supreme Court trend, at least in part, the Justice Department need only look in the mirror. These are often self-inflicted wounds. The “trust us” argument becomes harder when the case that lands before the Court seems to involve a poor exercise of prosecutorial discretion.  This was true, for example, Yates v. United States, where prosecutors used an obstruction of justice statute with a twenty-year penalty to prosecute a captain who threw undersized fish overboard to avoid a civil fine. Or Bond v. United States, where a woman put Drano on the doorknob and mailbox of her romantic rival, causing a minor skin irritation, and was charged with a chemical weapons offense carrying up to life in prison.

When such cases make it to the Supreme Court, it becomes harder for the government to argue the Court should entrust prosecutors with criminal statutes that sweep as broadly as possible. That’s what led Justice Gorsuch to remark during the Van Buren argument that the Solicitor General’s office should not act as a mere “rubber stamp” when questionable cases stretching the boundaries of federal criminal law are brought by U.S. Attorneys.   

In this case Van Buren’s conduct does seem worthy of prosecution. But it also seems clear there were other ways  to punish him, either with other federal statutes (he was also charged with honest services fraud, but that charge may face a McDonnell issue) or with a Georgia state prosecution for bribery or other crimes. There is no need for the Court to stretch the boundaries of the CFAA based a concern that there is otherwise no way to punish someone like Van Buren.

In Van Buren’s case, the Court is likely to continue the trend identified by Justice Gorsuch. It will likely reject an expansive interpretation of the CFAA that turns almost all ordinary Americans into potential criminals. In this case, that’s the right result.

You may now return to your Amazon shopping.

Like this post? Click here to join the Sidebars mailing list

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.

Like this post? Click here to join the Sidebars mailing list.