Neal Katyal @neal_katyal tweets: The combo of these 3 pieces about DOJ dropping the Flynn charges is astounding. I’ve never seen anything like it. [Scriber added a 4th at the end of this post - the letter from 2000 former DOJ officials.]
Mary B. McCord was an acting assistant attorney general for national security at the Justice Department from 2016 to 2017. In her op-ed she says that Bill Barr Twisted My Words in Dropping the Flynn Case. Here’s the Truth. The F.B.I.’s interview of Mr. Flynn was constitutional, lawful and for a legitimate counterintelligence purpose.
The long list of people who thought Flynn’s lies were material says Chuck Rosenberg (a former U.S. attorney, senior FBI official and acting head of the Drug Enforcement Administration.)
Michael Flynn made false statements to FBI agents interviewing him about his December 2016 telephone conversation with a Russian diplomat. Flynn had previously traveled to Russia; received payments from Russia-related companies, including more than $40,000 from a Russian state-backed entity; dined with the Russian president; intervened in sanctions levied by the outgoing Obama administration punishing Russia for its 2016 election interference; and then lied to the incoming vice president — among other senior White House officials — about his intervention.
When he repeated similar lies to the FBI during a January 2017 interview, he was charged with a federal crime and subsequently pleaded guilty in federal court.
Now, in a stunningly dishonest intervention orchestrated by Attorney General William P. Barr, the Justice Department posits that Flynn’s false statements were not material and that the charge to which he pleaded guilty should be dismissed.
It might also be helpful to make a partial list of those who do not think (or no longer think) Flynn’s lies were material:
Barr, who orchestrated this stunning reversal with the assistance of his underlings. Barr noted that with respect to his decision to seek dismissal of the charge against Flynn, “history is written by the winners.”
Trump, who now says he is “very happy” for Flynn and that the people who prosecuted him are “human scum.”
Yes, Trump made both lists. “It’s a beautiful thing,” George Orwell wrote, “the destruction of words.”
A 10-year prosecutor, Jonathon Kravis, writes:I left the Justice Department after it made a disastrous mistake. It just happened again.
Three months ago, I resigned from the Justice Department after 10 years as a career prosecutor. I left a job I loved because I believed the department had abandoned its responsibility to do justice in one of my cases, United States v. Roger Stone. At the time, I thought that the handling of the Stone case, with senior officials intervening to recommend a lower sentence for a longtime ally of President Trump, was a disastrous mistake that the department would not make again.
I was wrong.
Last week, the department again put political patronage ahead of its commitment to the rule of law, filing a motion to dismiss the case against former national security adviser Michael Flynn — notwithstanding Flynn’s sworn guilty plea and a ruling by the court that the plea was sound.
The attorney general’s public comments worsened matters. William P. Barr gave nationally televised interviews in which he disparaged the work of prosecutors and agents who handled these cases, criticizing the Stone prosecutors for losing “perspective” and the Flynn team for becoming “wedded to a particular outcome.”
As the attorney general knows, those career prosecutors and agents cannot respond. The department prohibits employees from talking to the media about criminal cases without high-level approval. Department lawyers are ethically bound to protect the confidences of their client. Barr’s decision to excuse himself from these obligations and attack his own silenced employees is alarming. It sends an unmistakable message to prosecutors and agents — if the president demands, we will throw you under the bus.
The dedicated public servants who remain cannot respond publicly to those who claim that the department acted appropriately in these cases. But I can, and I say this. If the department truly acted because of good-faith commitments to legal positions, then where is the evidence of those commitments in other cases that do not involve friends of the president? Where are the narcotics cases in which the department has filed a sentencing memorandum overruling career prosecutors? Where are the other false-statements cases dismissed after a guilty plea?
There are none. Is that because the only cases in the United States that warranted intervention by department leadership happened to involve friends of the president? Of course not.
The task of repairing this damage will fall to the department’s career agents and prosecutors, and it is for them that I write this. Your work of investigating and prosecuting criminal cases is hard, and it becomes even harder when witnesses and jurors start to believe that the Justice Department’s handling of these cases is infected by politics. Your service during these times is a credit to the department. And you will be at your posts, serving justice, long after this attorney general is gone.
Speaking of gone …*
ABC News reports that Nearly 2000 former DOJ officials call for AG Barr to resign over Flynn case. It’s not clear how the judge in Flynn’s case will react to DOJ’s reversal.
The letter, signed mostly by former career officials in the department, accuses Barr of joining with President Trump in “political interference in the Department’s law enforcement decisions.”
Make no mistake: The Department’s action is extraordinarily rare, if not unprecedented. If any of us, or anyone reading this statement who is not a friend of the President, were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we would be prosecuted for it.
We thus unequivocally support the decision of the career prosecutor who withdrew from the Flynn case, just as we supported the prosecutors who withdrew from the Stone case. They are upholding the oath that we all took, and we call on their colleagues to continue to follow their example. President Trump accused the career investigators and prosecutors involved in the Flynn case of “treason” and threatened that they should pay “a big price.” It is incumbent upon the other branches of government to protect from retaliation these public servants and any others who are targeted for seeking to uphold their oaths of office and pursue justice.
… in our previous statement, we called on Attorney General Barr to resign, although we recognized then that there was little chance that he would do so. We continue to believe that it would be best for the integrity of the Justice Department and for our democracy for Attorney General Barr to step aside. In the meantime, we call on Congress to hold the Attorney General accountable. In the midst of the greatest public health crisis our nation has faced in over a century, we would all prefer it if Congress could focus on the health and prosperity of Americans, not threats to the health of our democracy. Yet Attorney General Barr has left Congress with no choice. Attorney General Barr was previously set to give testimony before the House Judiciary Committee on March 31, but the hearing was postponed due to the COVID–19 pandemic. We urge the Committee to reschedule Attorney General Barr’s testimony as soon as safely possible and demand that he answer for his abuses of power. We also call upon Congress to formally censure Attorney General Barr for his repeated assaults on the rule of law in doing the President’s personal bidding rather than acting in the public interest. Our democracy depends on a Department of Justice that acts as an independent arbiter of equal justice, not as an arm of the president’s political apparatus.