The Flynn Case

Attorney General William Barr recently took the unprecedented step of trying to dismiss the criminal case against Michael Flynn who had been convicted of lying to the FBI about his contacts with the Russians.  He had also been fired by Trump for lying to Vice President Pence about the same thing.  As we consider this, keep in mind that Flynn had already pleaded “guilty” to the charges on two occasions before a federal judge and was awaiting sentencing.  In fact, the only reason given by prosecutors for not sentencing Flynn long ago was that Flynn was continuing to cooperate as a witness.  In other words, Flynn was trying to earn through cooperation a lesser sentence.

Then, out of nowhere, Barr stepped in to dismiss the case because, according to him, justice required it because the FBI shouldn’t have been questioning him in regard to the Russian interference in our elections.  Remember that the working theory at the time was that Russia (Putin) interfered because helping Trump get elected would help Russia get rid of Obama-era sanctions and Trump was open to that idea.  Recall that Trump was saying many positive things about Russia during his campaign and the Kremlin knew Hillary Clinton was its enemy.  My point is that the FBI investigation of election interference and of Flynn was not some far-fetched, politically motivated witch hunt.  The facts are that every intelligence agency and the Congress have concluded that election interference occurred and that it was intended to help and did help Trump.  Flynn did speak to the Russian ambassador to the U.S. about removing sanctions.  Flynn lied to the FBI about his conversations with the Russians.  Flynn has twice pleaded guilty under oath to the exact allegations made against him.

Flynn’s lies were not considered trivial by the federal judge who accepted Flynn’s two pleas of guilty.  At that time, Judge Emmet Sullivan said:  “The aggravating circumstances are serious.  Not only did you lie to the FBI, you lied to senior officials and the incoming administration.”Flynn also lied about the fact that he had been paid by Turkey to obtain help in securing the extradition of a political opponent of Turkey’s president who is living in the United States.  About this, Judge Sullivan said:  “All along you were an unregistered agent of a foreign country while serving as the National Security Adviser to the President of the United States.  That undermines everything this flag over here stands for.   Arguably you sold your country out.”

Barr’s action has precipitated the protest resignation of the career prosecutor in charge of the case.  What Barr has done closely resembles his personal interference in the prosecution of Roger Stone, another crony of Trump’s, which also precipitated protests from current and former career prosecutors in the Justice Department.  Barr sat for an interview with a former Fox News reporter now working for CBS to explain his motives.  With what I would describe as smugness, arrogance and audacity, but others might say as a straight face, he said justice required him to dismiss the case.  It is remarkable that one can use the same high-minded language and rationale to describe the motive for a noble act as for an ignoble act, but he made it sound as if this sort of thing was normal and that a sense of justice and fair play under the law was his motivation.  This was, of course, complete B.S. and he knows it.  He did this for Trump and because he has, he hopes, the power to do it regardless of the lasting damage it will do to his personal reputation, the reputation of the Office of Attorney General, the reputations of the career prosecutors in the Justice Department, the credibility and reputation of the FBI, the negative perception that will be imputed to the federal criminal judicial system, and the negative consequences it will have on pending and future criminal investigations and prosecutions.

To those who don’t have personal experience with the criminal justice system, as criminal defense lawyers or as prosecutors, what Barr did may not seem unusual or even bad, but make no mistake about it, his actions were wrong, unprecedented, and a lasting stain on his high office.  Surely, he had to know all of this beforehand.  Nevertheless, he did it.  The real question is why.

Remember once again that Flynn was a cooperating witness, i.e., he was “working off his case.”  Doesn’t it make sense that Trump and, therefore, Barr were afraid of what else Flynn might say?  And, could it also be that Trump was signaling to all of those other cooperating witnesses that they just needed to stay quiet in order to be rewarded?  Or, could it be that Flynn had been promised something he probably wasn’t going to receive from the federal judge and Trump was afraid Flynn would tell all he knew in order to get even?