Michael Flynn walks down the West Wing Colonnade. (photo: Chip Somodevilla/Getty Images)
09 May 20
or
someone who lies a great deal, President Trump can be remarkably
transparent. Shortly after Attorney General William Barr’s Justice
Department moved to dismiss the guilty plea of Michael Flynn, the former
national-security adviser, Trump tweeted, “Yesterday was a BIG day for
Justice in the USA.
Congratulations to General Flynn, and many others. I
do believe there is MUCH more to come!” Much more to come. This means that Trump and his Administration will continue to try to disassemble the legacy of the special counsel Robert Mueller’s investigation of the 2016 campaign and its aftermath—and to pretend that a coverup amounts to an exoneration.
Matters of legal procedure often lend themselves to
obfuscation, but the Flynn case is pretty straightforward. At the end of
2016, the F.B.I. was winding down an investigation of Russian
interference in the Presidential election. But during the transition
period after Election Day, American authorities intercepted a phone call
between Flynn, who had been a Trump adviser in the campaign, and Sergey
Kislyak, who was then the Russian Ambassador to the United States.
Afterward, the F.B.I. became aware that Flynn was lying to the public
and others about what was said during the call about President Obama’s
imposition of sanctions on Russia.
Flynn lied by saying that he had not
discussed the sanctions with Kislyak.) In doing so, Flynn had opened
himself up to blackmail from the Russians about the contents of the
call. To follow up, a pair of F.B.I. agents interviewed Flynn on January
24, 2017, less than a week after he started his job as the
national-security adviser. Flynn lied to them, too. Later that year, as
the investigation by Mueller continued, Flynn pleaded guilty to lying to
the agents.
There, following sentencing, is where the matter
should have ended. But Trump has been complaining for some time that
Flynn was ill-treated. This was a tough argument to make, because Flynn
was a sophisticated defendant, with highly regarded lawyers, who made an
informed decision to admit his guilt—in two separate proceedings, as it
happened. The President always had the right to pardon Flynn, and he
probably would have done so, but the Justice Department has done his
dirty work for him. This is an especially disturbing part of the Flynn
denouement. A pardon would have been outrageous but within Presidential
prerogative. Instead, the Justice Department manufactured a phony
pretext to pretend that Flynn’s guilty plea was illegitimate.
The Justice Department’s action here may be
unprecedented. I do not know of another instance where the department
has voluntarily dropped a case in which the defendant had pleaded
guilty—especially a case such as this, in which the judge had already
rejected the arguments that Barr’s subordinates made in dismissing the
case. Those arguments are weak.
As the journalist Marcy Wheeler has shown,
there is no new information that recently came to the attention of the
Justice Department. Instead, the department’s main legal argument is the
assertion that the F.B.I. had no reason to interview Flynn in the first
place—and that, accordingly, the subject matter of the interview was
not “material” to an investigation. (The law only allows prosecutions of
false statements when those statements are “material” to a pending
investigation.)
But the F.B.I.’s approach to Flynn was totally
legitimate, and Flynn’s lies were highly material to the investigation.
Indeed, there was so much concern about Flynn’s behavior that Sally Yates,
the acting Attorney General, paid a visit to Don McGahn, the new White
House counsel, to express her alarm about what Flynn was doing.
Interviewing Flynn was a crucial step in that investigation.
Barr’s supporting role in Trump’s war on the Mueller legacy has been clear for some time. In February, the Justice Department overruled its own line prosecutors in the case of Roger Stone,
who was also indicted as part of the special counsel’s investigation,
and recommended a lower sentence than the prosecutors had. (All four
lawyers on the case promptly dissociated themselves from the
prosecution, and one quit the Justice Department.) Trump, in the
meantime, has expressed great sympathy for Stone’s plight. Pardons for
Stone and for two other prominent defendants in the investigation—Paul Manafort, Trump’s former campaign chairman, and George Papadopoulos, a campaign aide—seem more likely than not.
Judge Emmet Sullivan, who presided over the Flynn
case, still has to approve the dismissal. Given his honorable conduct of
the case so far, Sullivan is likely to be aggrieved by what the Justice
Department has done, and he may express that view to the public in some
way. But there doesn’t appear to be any way for a judge to force
prosecutors to bring a case that they want to drop. So Flynn will go
free.
Likewise, through pardons or the actions of a compliant and
compromised Justice Department, Trump can continue to undo Mueller’s
legal legacy. But the President cannot change the underlying facts, nor
can he unwrite the Mueller Report, which documents, in unsparing detail,
the crimes of his associates, and his own.
And here's a new one: Confessed liar Michael Flynn is innocent.
