Sunday, May 10, 2020

'The Trump administration’s Justice Department is undermining the rule of law'

The Editorial Board of the NY Times comments on William Barr’s Perversion of Justice. The attorney general is turning the Justice Department into a political weapon for the president.

In brief:

To Mr. Barr, these [post-Watergate] reforms were obstacles to a vision of a virtually unbound executive. For decades, he has pushed to give presidents — Republican presidents, anyway — maximum authority with minimal oversight. In a 2018 memo criticizing the Russia investigation, he argued that the president “alone is the Executive branch,” in whom “the Constitution vests all Federal law enforcement power, and hence prosecutorial discretion.” For the attorney general, that discretion includes cases involving the president’s own conduct.

If you’re having trouble distinguishing Mr. Barr’s vision of the presidency from the rule of a king, you’re not alone. “George III would have loved it,” said Douglas Kmiec, who led the Justice Department’s Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush.

“Bill Barr’s America is not a place that anyone, including Trump voters, should want to go,” wrote Donald Ayer, who served as deputy attorney general under the first President Bush. “It is a banana republic where all are subject to the whims of a dictatorial president and his henchmen.”

Bill Barr’s America is the one we’re now living in. The Justice Department, in the midst of a presidential campaign, has become a political weapon.

Barr and Trump are quite open about their nefarious schemes. For example:

"These are dirty politicians and dirty cops and some horrible people, and hopefully they’re going to pay a price some day in the not too distant future,” Mr. Trump said in his Fox News interview Friday.

Democratic self-government is premised on the expectation that the people’s representatives will not wield the immense powers of law enforcement for their own personal ends, without oversight by the other branches. The nation’s founders did not wage a war for independence from a tyrant who considered himself to embody the law so that the republic would tolerate another executive who considers himself above the law.

It’s up to the American voters to ensure that Mr. Trump and Mr. Barr do not write the history of this terrible moment.

A senior lecturer at the Jackson Institute for Global Affairs at Yale University and a former FBI agent, Asha Rangappa is a legal and national security analyst for CNN. Writing in the Washington Post, she explores the implications of AG Barr’s request to drop charges against Mike Flynn. Pardoning Flynn would have looked bad. Dropping the charges is far worse.

Excerpts follow.

For months, President Trump has suggested that he might pardon retired Lt. Gen. Michael Flynn, his former national security adviser, who pleaded guilty to lying to the FBI. But now Trump won’t have to worry about it: Attorney General William P. Barr filed a motion Thursday asking the federal court overseeing Flynn’s case to dismiss the charges.

If he is successful, Barr will save Trump from the political fallout of pardoning a former close aide, while still clearing Flynn. A pardon might have seemed to be the ultimate perversion of justice — but Barr’s maneuver is actually much, much worse.

… as controversial as pardons might be, at least they come with some accountability as the Framers designed them. The pardon power is enshrined in the Constitution, putting voters on notice that the character of the person they elect will no doubt influence how they wield this kingly authority. With the power clearly and unequivocally in the hands of just one person, a pardon leaves no doubt as to where the responsibility lies when a president absolves someone of a crime. A person who abuses the power may pay the price at the polls. This may be why most presidents have waited until the end of their second term or until after they have lost a reelection bid to use this authority. (Clinton’s pardon of Rich came on his last day in office.)

But Barr’s motion would blur the whole question of accountability. Trump couldn’t have done anything wrong, because he has issued no pardon; Barr’s argument, in fact, is that the FBI agents whom Flynn lied to and the prosecutors who brought the case are the ones to blame. Barr’s legal sleight of hand attempts to shift the focus from Trump to the Justice Department that he himself oversees.

Yet Barr’s justification — that there was no legal basis for Flynn’s interview by the FBI, which means there was no legal basis to indict him for lying to agents — is belied by the process of Flynn’s case. The investigation of Flynn was conducted by an independent special counsel and reviewed by the judicial branch. U.S. District Judge Emmet G. Sullivan accepted Flynn’s guilty plea and even went so far as to tell Flynn in open court that “arguably, you sold your country out.” Sullivan also rejected Flynn’s attempt last year to have the prosecutors held in contempt of court for allegedly coercing him into pleading guilty.

Now Barr is saying Sullivan’s orders and the whole process leading up to Flynn’s conviction and sentencing was illegitimate. At least if Trump were to pardon Flynn, the basic premise that he had, in fact, lied to the FBI and pleaded guilty to it would not be up for dispute. If Barr prevails, though, the most fundamental building blocks of counterintelligence investigations — such as ensuring that the FBI can question people about contacts with hostile foreign agents and hold them accountable if they conceal them — are no longer things we can count on. Barr wants to create a twilight zone where such things can occur with legal impunity.

Sullivan can still reject Barr’s motion, which would force Trump to pardon Flynn and accept the accountability that comes with the power, if the president really wants his man cleared. But even if Barr prevails, there may be a silver lining for those of us who believe in the rule of law: In usurping Trump’s authority, Barr could still leave Flynn in potential legal jeopardy. That’s because if the court does dismiss Flynn’s case, Flynn will not have admitted guilt, nor will he have been “convicted” in a legal sense.

Without an acceptance of guilt, Trump has no crime to pardon. And Sullivan can accept Barr’s motion “without prejudice,” which would leave the door open for a new prosecution by the Department of Justice in a future administration. And either way, the voters can still hold this administration accountable in November.

Thanks to our Roving Reporter Sherry and the Arizona Blue Meanie for their tips about these reports featured here.

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