It’s a bad idea to try holding a show trial when the judge is not in your pocket but that’s what Trump consigliere William Barr did when his Department of Justice filed a motion to dismiss its own case against twice-admitted felon and former Trump National Security Adviser Michael Flynn.
While Trump will doubtlessly succeed in protecting Flynn from going to prison, he could do so at the cost of either a drawn-out court battle that will tortuously expose the mendacious nature of the DOJ’s effort to undermine the Russia investigation, or the issuance of a pardon amounting an admission of what the world already knows: that he’s letting a guilty crony off.
At the outset, let’s make clear how weak and pretensive an exercise the DOJ’s motion is, given that Flynn’s guilt is not in colorable dispute. Even Barr’s mouthpiece, Timothy Shea—who’s about to end a very short stint as acting D.C. U.S. Attorney because he risked being rejected for a permanent appointment in an upcoming vote by the court’s judges—doesn’t deny that Flynn, a former general and head of the army’s intelligence unit, baldly and knowingly lied to FBI agents about a call he had with the Russian ambassador immediately after the Obama administration sanctioned Russia for its successful interference in the 2016 election on Trump’s behalf.
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Trump’s best hope at this point may be a save from a higher court, and he just might get it; a D.C. appellate panel with a majority of conservative jurists who have ruled to protect Trump before indicated on Thursday that they might step in to do so again.
The DOJ has, so far successfully, resisted the judge’s efforts to compel the release of a transcript of the calls. But we know this much: Flynn gave a nod and a wink to the ambassador about Trump’s plans to make life much easier for the Russians once he became president. And, as Flynn admitted under oath before the court no less than twice, he knowingly lied to FBI agents about his communications with the ambassador.
Lying to the government is a felony that’s routinely prosecuted, and for good reason: If citizens, let alone prospective public servants, can deceive investigators without consequence, then mendaciousness will be rewarded, and law enforcement will be freely frustrated. And as Marcy Wheeler has demonstrated, Shea’s suggestion that the DOJ lacked good reason to investigate Flynn at the time the FBI questioned him is refuted by a memo from former Obama National Security Adviser Susan Rice that the Trump administration just declassified. That document shows there was well-founded concern that Flynn could be compromised by the Russians, including because of his numerous one-on-one calls with the very same ambassador.
Furthermore, almost as soon as Shea filed the DOJ’s motion to dismiss papers, reports established that Shea had grossly misstated the words and conduct of key FBI and DOJ officials. For example, Bill Priestap, the former FBI counterintelligence chief who authored what Shea claimed were a damning set of “talking points” for the Flynn interview reportedly told the DOJ that the notes were simply a recounting of his thoughts surrounding the interview, not an agenda for any sort of “perjury trap” or other set up. Former senior DOJ official Mary McCord also said the DOJ “twisted my words” to support a claim that interviewing Flynn was improper,
Given the utter frivolousness, and apparent mendaciousness, of the government’s motion, one might reasonably ask why Barr brought it in the first place. That brings us to “Obamagate,” and the wide-ranging project Trump and Barr embarked upon, apparently soon after Barr took his post, to tarnish and rewrite the history of the Russia investigation to make out Trump as a victim. According to the most conspiratorial of Trumpish folks, including Trump himself, Flynn is a secret patriotic hero who was targeted by the “deep state” on the orders of Obama and Biden on account of his loyalty to Trump.
Barr, as is his wont, recently strategically distanced himself from the most whacked-out versions of such conspiracism by announcing that “based on the information I have today,” he does not “expect” Obama or Biden to be criminally investigated. But while that announcement made headlines, as intended, the attorney general also made clear his full investment in the project of discrediting the Russia investigation, as well as the work of Robert Mueller and his team (who obtained Flynn’s guilty plea) by asserting that there had been “two different standards of justice… one that applie[d] to President Trump and his associates, and the other that applied to everybody else.”
Plainly, the attempt to dismantle the Flynn case—and retroactively declare that the FBI and Justice Department wrongly prosecuted a man who Trump said he removed for lying to his vice president but now says he might welcome back to the White House—was intended to serve as the first act in a multi-part drama to be rolled out during the months before the election.
Indeed, as Ryan Goodman, the co-editor in chief of Just Security and a former special counsel for the Department of Defense, has explained, there are strong indications that John Durham, the prosecutor Barr engaged to investigate the Russia investigators, may well indict one or more people for leaking the existence of Flynn’s calls with the ambassador, and related matters, to the press—the event that belatedly forced Trump to fire Flynn, and ultimately likely led to his indictment.
But Barr’s plans to begin his “Obamagate” roll-out with the Flynn motion depended on the trial court making no inquiries whatsoever into the veracity of the government’s new claims about Flynn’s innocence, and about the FBI’s and Mueller prosecutors’ supposed evil doings. And that is where the judge presiding over the case, Emmett Sullivan, has shown himself to be, quite predictably, uncooperative.
Sullivan, who gained notoriety for uncovering gross misconduct in the corruption prosecution of Republican Alaska Senator Ted Stevens, is well-known for holding the government to its proof in criminal cases. In fact, during 2018, Sullivan ordered the first of what turned out to be many delays in Flynn’s sentencing because he was concerned that Mueller’s prosecutors might have been too lenient in their treatment of Flynn, who was then a cooperating witness.
Soon after the government filed its motion to dismiss, the judge invited third parties to file “friend of the court” briefs stating their views on the subject. Sullivan thereafter appointed another extremely respected former federal judge, former mob prosecutor John Gleeson, to present arguments in opposition to the motion. The judge also tasked Gleeson with examining whether Flynn should be held in contempt of court, apparently for repeatedly admitting his guilt under oath given that he now claims his innocence.
The DOJ made plain from the outset that it would have no tolerance for such an inquiry, declaring that the Executive Branch has plenary authority to decide whether or not to dismiss a criminal case in the absence of objection from the defense, even after the defendant has pleaded guilty. Flynn has petitioned the appellate court seeking a “writ of mandamus” immediately taking the case away from Judge Sullivan, and effectively instructing a newly appointed judge to grant the motion without any inquiry.
Flynn’s mandamus petition has been assigned to a three-member panel of appellate judges that includes two conservatives who each recently ruled in Trump’s favor in cases involving congressional subpoenas that the president resisted. Furthermore, the panel has already indicated it may be taking Flynn’s mandamus petition seriously; the appellate court ordered Judge Sullivan to file an opposition, and invited the DOJ to file papers as well. Additionally, the court’s brief order specifically references a prior circuit court decision that emphasised the limited scope of judicial review under the operative dismissal rule, Rule 48 of the Federal Rules of Criminal Procedure.
While Rule 48 requires the government to obtain “leave of court” before dismissing a criminal case, there is indeed a very substantial legal question whether a trial judge can ultimately deny a motion to dismiss a criminal case absent an objection from the defendant, even if the government acts in bad faith. That question has yet to be resolved by the Supreme Court.
But that unanswered legal question is distinct from the issue of whether Sullivan is barred from even making an inquiry into the government’s good faith before ruling on the DOJ’s request for leave to dismiss, particularly where—as here—there is ample basis for concern about the DOJ’s conduct, and even the veracity of its motion papers.
Indeed, a federal circuit court in Philadelphia that was presented with this very issue emphatically ruled that a writ of mandamus is improper in such circumstances, reasoning that mandamus is not the “proper vehicle for challenging a lower court’s refusal to dismiss” under the governing rule, and that an appellate challenge cannot be heard until the trial court conducts any desired inquiry regarding, and issues a ruling on, the dismissal motion.
If the D.C. Circuit agrees with this reasoning, then Trump and Barr will be placed in quite a difficult position. Instead of getting a quick decision rubber-stamping the DOJ’s claim that Flynn, and, derivatively, Trump himself, were the victims of grave unfairness by biased law enforcement officers in Obama’s and Biden’s thrall, the president and Flynn will be forced to endure a potentially lengthy inquiry into Barr’s very flimsy justification for the DOJ’s about-face.
At the least, it seems increasingly likely that the transcripts of Flynn’s calls with the ambassador, which the DOJ successfully prevented the court from ordering to be released in the past, will finally see the light of day. This is because the DOJ made very specific claims about the purportedly innocuous nature of the calls in its motion papers. Indeed, even before being named by the court, Gleeson co-authored an op-ed observing that DOJ’s motion rendered the release of the transcripts appropriate.
Furthermore, the law enforcement personnel that the DOJ defamed, and apparently misrepresented, in its motion papers are also likely to be heard from. Even Flynn’s former, and highly skilled, defense counsel, whom Flynn now effectively (and absurdly) accuses of contributing to his supposed railroading, were ordered to appear again in the court, and may be called upon to provide evidence.
In short, the motion to dismiss the Flynn case is shaping up to be a disaster for Trump waiting to happen. Furthermore, it is one that could play out over the next several crucial months leading up to the election.
Thus, the politically crucial period during which Barr and Trump had long planned to focus the nation on their “Obamagate” story could end up being devoted to a judicial inquiry into the mendacity and politicization of the DOJ on their watch.
If Trump is not able to get the appellate court or his favorite judicial body, the Supreme Court, to short-circuit the process and force an immediate grant of the motion to dismiss, the president might well give up on the gambit and simply pardon Flynn. If Trump is forced to take that step, however, it will be an ignominious result.
The acceptance of a pardon often entails an effective acknowledgment of culpability. And while Trump and Flynn would doubtlessly deny it, that would certainly be the case if Flynn was pardoned after the motion-to-dismiss gambit failed. Accordingly, a pardoned Flynn would not fit well within the Obamagate narrative, in which the former general is portrayed as a martyr for Trump. Rather, a pardon would permanently label Flynn as what he actually is: one of the president’s crooks.
