Barr Must Go

US Justice Dept. is a political weapon
William Barr must resign

While most of us were consumed or distracted by the coronavirus pandemic, the U.S. Department of Justice took a nearly unprecedented action that signals the end of the rule of law, the bedrock of our democracy. 

It is rare when the government asks the court to dismiss a criminal case. When it does happen, it is usually at the beginning stages of a case when new and exonerating evidence comes to light. In almost 40 years of federal criminal law practice in federal courts, I have never heard of the government asking to dismiss a case after the defendant has pled guilty to the offense charged and admitted to the court, under oath, that he committed the offense charged knowing that it was a crime at the time. 

That is exactly what happened in the case of a Michael Flynn, former National Security Advisor to President Trump. Flynn was charged with lying to FBI agents who interviewed him about his contacts with Russians during then candidate Trump’s 2016 campaign to become President of the United States. The agents were investigating whether Russia was involved in activities aimed at influencing the outcome of the presidential election which is a crime under federal law. 

In order to constitute a crime, Flynn’s lies about contacts with Russians about the election had to be “material” to that investigation. Flynn was known to have financial and other ties to Russia and other foreign governments at the time. During his FBI interview, Flynn denied having telephone conversations with a Russian diplomat during the campaign. Flynn not only had those conversations, but in the conversations, Flynn asked the Russians not to react too strongly to the sanctions imposed on Russia by the Obama administration. The Russians knew Flynn had those conversations, making him subject to later blackmail should he be needed to advance Russian interests. His lies were clearly “material” to the agents’ investigation.

Trump’s second hand-picked Attorney General, William Barr, directed the case against Flynn be dismissed based upon a non-sensical claim that Flynn’s statements to the FBI were not “material” to their investigation. Barr believed the Flynn interview never should have taken place because the FBI was prepared to close the Russia investigation when the Flynn telephone contacts with the Russian ambassador became known.

Barr’s position is a perversion of the law and the process. Flynn twice swore under oath that he lied to the FBI agents about the conversations with the Russian ambassador when he pled guilty. His lawyers acknowledged that he committed the acts required for the offense before he pled guilty. Flynn agreed that he knew his lies were important when he made them.  Both Vice-President Pence and President Trump believed Flynn’s lies were important. They both said so and Trump fired Flynn for lying to Pence.

Since the government’s request that the case against Flynn be dismissed, there has been outrage from former career justice department prosecutors about the blatant politicization of this case in order to protect a presidential crony. Legal scholars have weighed in on how Attorney General Barr is turning the Justice Department into a weapon to be used against Trump’s enemies and a shield to protect Trump’s friends. Former Watergate prosecutors have urged the judge in Flynn’s case to deny the government’s request to dismiss the case and proceed to sentence Flynn. 

Under the Rules of Federal Criminal Procedure, the presiding judge has the power to grant or deny the government’s request to dismiss and gets to make the final determination whether the dismissal would be “in the interest of justice.” Usually when the prosecution and defense appear in court, both sides of the issues are fully aired and discussed. Here, those adversaries are united. Both want Flynn to walk out of court a free man. 

Judge Sullivan has taken the unusual step of appointing an independent lawyer to present arguments on the government’s request. He chose a retired federal judge and former federal prosecutor to provide the rest of the story by presenting evidence and legal arguments. He has also been asked to advise the court whether Flynn should be charged further with perjury for lying to the court when he admitted to commission of the crime when he pled guilty. It appears that Flynn cannot avoid that one given his current argument that he did not commit that crime after admitting under oath that he did in two earlier court hearings.

Whether Flynn walks free or goes to prison, the damage to the reputation of the United States Department of Justice that is tasked with seeking justice will take a huge hit. William Barr should heed the call of over 2,000 former federal career prosecutors and resign from his post before the damage from his politicization of the Department becomes permanent.