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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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.