On May 7, the Justice Department filed a motion to withdraw its criminal case against former National Security Adviser Michael Flynn, who pleaded guilty two and a half years ago to making false statements to the FBI about whether he discussed sanctions relief in exchange for Russia’s not expelling American intelligence officers with Sergey Kislyak, the then Russian ambassador to the United States, prior to Donald Trump’s inauguration. Such motions are extremely rare to begin with, and after guilty pleas they are unprecedented. This particular motion is also a freakish document that distorts the law and misrepresents the views of former senior Justice Department officials involved in the Flynn case. Bureaucratic and legal outrages—from officials’ systematic subversion of the mission of the departments they head to the “unitary executive” theory espoused by Attorney General William Barr—are routine in the Trump administration. But this latest instance is a major advance in the president’s and Barr’s political weaponization of the Justice Department.
The motion was signed only by Timothy Shea, a Barr loyalist and acting US attorney for the District of Columbia, and not by any of the prosecutors involved, one of whom withdrew from the case. The motion asserts that the counterintelligence investigation the FBI opened in 2016 as part of a larger government inquiry into possible coordination between the Trump campaign and Russian attempts to interfere in the 2016 US election was improper, and that any FBI conversations with Flynn in that connection were therefore not appropriate. This means, the argument runs, that Flynn cannot be held criminally liable for any of the lies he told in those conversations.
The idea is that the interview amounted to a perjury trap. Yet Bill Priestap, the former head of FBI counterintelligence, who oversaw the 2016 investigation, reportedly provided information to Justice Department lawyers who were preparing the motion that contradicted any such inference. The motion excluded this information.
The motion simply assumes that Flynn’s conversation with Kislyak was “entirely appropriate,” and that there were therefore insufficient grounds to continue the counterintelligence investigation. By fiat, it flushes away any basis for a crime and blithely disregards sound factual inferences by Justice Department lawyers at the time that a senior White House official with top-secret clearance had undisclosed ties to Russian officials, discussed sanctions relief with a Russian official prior to assuming office, and concealed a possible deal between Trump and Russia that Trump did not have the legal authority to make. Even if Flynn was acting on his own initiative, his denying the Kislyak conversation to the vice-president and other officials made him vulnerable to Russian blackmail. The motion also perpetuates a false narrative of persecution and misconduct, portraying Deputy Attorney General Sally Yates as ineffectual, FBI Director James Comey as insubordinate, and FBI officials Peter Strzok and Lisa Page as nefarious.
This legal argument is a house of marked cards, and an artless one at that, but that doesn’t matter to Trump and company. It appears to be the latest salvo in a White House–concocted and Barr–orchestrated campaign to sully the Obama administration, invalidate the Mueller investigation, and sink the presidential candidacy of Joe Biden, whose popularity, along with Trump’s shaky approval rating, looks to imperil a second term for the president. Bolstering this assessment is two senior Republican senators’ request for a list of Obama administration officials who asked for, and were granted, the “unmasking” of a target of federal electronic surveillance—who turned out to be Flynn. The acting Director of National Intelligence, Richard Grenell, has declassified and provided the list, and it includes Vice-President Biden.
However futile the impeachment of the president might have been from a strictly political standpoint, attacking Hunter Biden also lost traction as a campaign tactic for Trump. And so, along with the vaunted third-quarter economic rebound and blaming Chinese negligence for the spread of Covid-19, “Obamagate” has become a leading element of Trump’s reelection strategy.
Barr brushed aside the motion’s spuriousness with his snide remark that “history is written by the winner,” which he seemingly expects to be. Casting Flynn as a victim of Obama-era malice may divert national attention from the Trump team’s dismal performance in dealing with the pandemic—currently, the main cause of his declining popularity—and cast aspersions on Biden by association for about fifteen minutes. But it’s possible that neither it, nor the Republicans’ other two campaign thrusts, will be able to swing the election. Trump’s flaws may now be irredeemably exposed.
The overarching, longer-term danger of Trump’s Flynn gambit is the entrenched degradation of the Justice Department as an institution, and of the rule of law as the currency of American governance. Of course, there have been presidents who blatantly abused executive power, or tried to do so. Andrew Jackson drained the Second Bank of the United States of all its funds on populist grounds, with an eye to doling them out to state banks. The Grant and Harding administrations were pocked with cronyism, corruption, and scandal. Richard Nixon’s “dirty tricks” and other Watergate transgressions were plainly criminal. The Iran–contra affair during the Reagan administration was an illegal circumvention of Congress.
But in most such cases, sound laws ultimately prevailed over misguided men because, however messily, the system worked. The Justice Department was a crucial component of that system. Now the administration appears intent on turning it into an instrument of personal political power to neutralize the “deep state” that Trump believes is out to get him.
The default response to this worry is that once Trump is out of office—and that may be quite soon—the Justice Department’s integrity and efficacy can readily be restored. This could, however, be a wishfully institutionalist stance in a time when democratic institutions are under attack and faith in their resilience has indisputably been shaken. The Trump administration’s relentless hollowing-out and politicization of the State Department, for example, has sapped morale, induced the resignation or retirement of many of the most seasoned and skilled members of the Foreign Service, diminished the diplomatic performance of the department, and bureaucratically marginalized it.
It is unlikely that an incoming Democratic administration’s aspirational pronouncements about restoring the State Department’s centrality, transitional pep talks to its personnel, or even concerted administrative efforts will quickly or easily return it to form. Ditto for the Department of Homeland Security, the National Security Council, the Environmental Protection Agency, and other important cabinet-level agencies.
By the time Trump and Barr are through, the same may hold true for the Justice Department. Shortly after his inauguration, Trump ordered forty-six prosecutors appointed during the Obama administration to resign, an extraordinary purge even during a change of party at the White House. As noted, none of the original attorneys of record signed the Flynn motion. In February, four career prosecutors withdrew from the government’s case against Roger Stone, Trump’s longtime friend and confidant, after they were ordered—at Barr’s behest and Trump’s prompting—to abandon stiff sentencing recommendations for the seven felonies of which Stone was convicted, including obstruction of a House investigation, witness-tampering, and lying to Congress. One of the lawyers resigned from the Justice Department.
In the Stone case, too, Shea served as Barr’s hatchet man. The episode moved more than two thousand former Justice Department lawyers to sign a public letter calling for Barr’s resignation. While Barr then openly rebuked the White House for interfering with the department’s prosecutions, Trump subsequently declared his legal right to intervene in federal cases and continued to agitate on Flynn’s behalf on Twitter. Barr’s obeisance to Trump in the Flynn case revealed his show of principle to be a charade.
The Stone and Flynn cases have created a crisis of credibility for the Justice Department. As Trump and Barr become more licentious in their oversight of politically sensitive prosecutions, resignations are likely to multiply. Although the prospective decimation of the Justice Department’s ranks may compare in scale to that of the State Department’s, there is a crucial difference.
Whereas Trump has sought to weaken State because of the institutional professionalism and rectitude that he disdains, he now seeks to empower Justice by dint of the institutional malleability and power that he embraces. If George W. Bush and John Ashcroft needed only one John Yoo to manufacture the Torture Memos, Trump and Barr seem to have a more robust sufficiency of ethically flexible lawyers at their disposal to step in for disaffected ones and generate tendentious legal outcomes. And an actively corrupt federal law enforcement agency poses graver danger to day-to-day governance than an impotent foreign relations department.
It appears possible, if not likely, that federal cases related to the Mueller investigation and other forms of possible corruption on Trump’s part will be minimized to a vanishing point, while the larger issue of the Trump campaign or administration’s collusion with Russia is extinguished. Many idealistic young lawyers who would once have coveted a Justice Department post may choose not to sign on to a fallen institution. Even if, sooner or later, unscrupulous DOJ lawyers give way to better ones, they will be unable to resurrect once prosecutable cases that their predecessors have speciously had dismissed or otherwise soft-pedaled “with prejudice.” There is also a risk that strenuous efforts by well-intentioned crusaders to reorient the department might only perpetuate its politicization, albeit in the opposite partisan direction.
In any case, Trump’s Justice Department has already consciously distorted civil rights into religious liberty and sidelined ethics, and alienated the nonpartisan senior lawyers with the most experience. Diana Flynn (no relation to Michael) had been with the Justice Department for more than thirty years, had risen to become chief of the appellate division of the Civil Rights Division, and considered herself a lifer. But she left government in 2018, thoroughly disillusioned.
“When you lose the institutional memory and you lose the people that were willing to speak truth to power and you lose the people that were actually experienced in determining properly what the law is and enforcing the law, it’s going to be very difficult to rebuild that capacity even when this difficult interlude with the Trump administration is over,” she told Fortune magazine. “It’s a task I think no prior administration has had to face.”
The Justice Department now acts at the White House’s bidding with little or no friction from a Congress hamstrung by a compliant Republican-majority Senate. With two branches of government thus disengaged from constructive oversight, only the federal judiciary is capable of reining in the department and stopping the systemic rot. Trumpism, of course, has also infiltrated the ranks of federal judges, the Senate having confirmed 192 of the president’s nominees as of mid-February, putting his administration on pace to have appointed a quarter of all federal judges by the end of the year. But not all judges are in Trump’s pocket, and judges in general are relatively insusceptible to direct political suasion.
Judge Emmet G. Sullivan, the US District Court judge presiding over the sentencing phase of the Flynn case, is a Clinton appointee with an independent streak and a reputation for impatience with government machinations. He appears to suspect that the Barr-instigated motion to dismiss is politically motivated—a view likely reinforced by its exclusion of Priestap’s information and by the Republican senators’ procurement of the “unmasking” list—and it is within the judge’s discretion to deny it. To the consternation of Flynn’s lawyers and the right-wing press, in an order issued Tuesday the judge delayed ruling on the motion and indicated that he would set a schedule for outside parties on both sides to weigh in with amicus briefs on its merits.
On Wednesday, Judge Sullivan took the additional, extraordinary step of appointing a former federal prosecutor and trial judge, John Gleeson, to defend the original prosecutors’ position in favor of Flynn’s guilty plea and to explore whether, in trying to withdraw that plea, Flynn committed perjury. The conservative journal National Review labeled Judge Sullivan’s initial order “bizarre” and “legally dubious,” and “a travesty.” But it is nowhere near as strange, inappropriate, or foreboding as the motion itself.