The Atlantic recently produced a perfect example of how the news media corrupts the term “rule of law.” The prosecution of General Michael Flynn has always been a nakedly political chess move in the greater game to obstruct or reverse the peaceful transfer of power following the 2016 election.
As I wrote before, “In the post-Trump era, the phrase ‘rule of law,’ has come to take on an Orwellian opposite, like ‘Freedom is slavery’ or ‘Ignorance is strength.’ The violations of the law committed to ‘get Trump’ are characterized as necessary steps to protect the law at the same time partisan legal minds declare every Trump action to be illegal or unconstitutional.”
To rehabilitate this otherwise indefensible miscarriage of justice, the Atlantic let Lawfare editors Benjamin Wittes and Quinta Jurecic pose 13 questions in an attempt to cast doubt on the recent motion to dismiss the indictment against Flynn. The questions are largely argumentative and dishonest attempts to distort the record. So I pick up the gauntlet thrown down by the two “lawfare” operatives. For purposes of simplicity, I have summarized and consolidated the questions that have similar answers.
1. Is the government dismissing the case without acknowledging that Flynn’s rights were actually infringed?
The source of the Justice Department’s authority to dismiss a case does not hinge on a finding that Flynn’s constitutional rights were violated or that the Justice Department engaged in any illegal behavior. Nevertheless, the dismissal concedes serious acts of misconduct by the prosecution team, some rising to the level of constitutional violations. The first issue is the fact that Flynn is factually innocent. Even before reaching the question of whether he lied (which in of itself remains an open question), the government has to establish that the official function of the FBI was obstructed by the “lie.”
The motion concedes that the government cannot establish that and that the prosecution withheld evidence of that deficiency from Flynn. Prosecuting somebody for a crime while withholding evidence of their innocence is a violation of constitutional rights.
The dismissal motion noted, “Mr. Flynn previously pleaded guilty to making false statements . . . [but] did so without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him.”
Evidence included several key documents which showed the FBI had no legitimate investigatory need for the Flynn interview and instead simply used it to criminalize an ally of the target of FBI agent Peter Strzok’s political contempt.
If Wittes and Jurecic (or their editors) had bothered to consult the Atlantic’s own archives, they might have read a very nice article explaining, “prosecutors have a constitutional obligation to share with criminal defendants all ‘exculpatory’ evidence officials may have.”
2. Can you identify another case in which the government has argued for the dismissal of a guilty plea in the absence of newly-discovered evidence of actual innocence?
That question is inapplicable. As noted by the motion, the newly-discovered evidence shows Flynn’s factual innocence. If Judge Sullivan were to ask himself whether this Justice Department misconduct resembled another case resulting in a post-conviction dismissal, he would easily recall the case of Senator Ted Stevens, a matter over which he presided.
3. Can you identify a case where the government dismissed a case because it lacked a proper predicate?
This question is also inapplicable. The case is not being dismissed because the FBI lacked a proper predicate. It’s being dismissed because the alleged “lie” told by Flynn was not material to a legitimate investigation. That’s a completely different issue. We don’t allow police officers to interrogate innocent people for the purpose of ginning up a mismatch between wiretaps and their memories of conversations.
4 and 5. Will the government always require that an alleged false statement be material to an investigation before prosecuting a defendant?
It should. That’s what 18 U.S.C. § 1001 requires.
6. If the national security advisor lied to the vice president about the conversation with the Russian ambassador, that makes Flynn vulnerable to blackmail. Isn’t that a basis for keeping an investigation open?
That’s not what happened. Flynn’s statements to the vice president and/or the FBI allegedly contradicted the original transcript of the Kislyak call. The call itself was legal and proper so it’s hard to understand why any misstatements about it would have been intentional.
Nobody has ever established that Flynn “lied” intentionally. The FBI went behind the administration’s back to trap Flynn, not to protect the administration from some far-fetched “blackmail” danger.
Question 7 involves a totally irrelevant hypothetical, so let’s skip it.
8. Why would Flynn plead guilty if he didn’t commit the offense?
The government motion clearly explains why. The prosecution withheld exculpatory evidence from Flynn. Had he known what the prosecution would later produce in discovery, it is unlikely he would have pleaded guilty. In addition, the prosecution threatened to go after his son and also bullied his attorneys.
9, 10, 11 and 13. Why didn’t Brandon Van Grack or some other career Justice Department attorney sign the motion? Hasn’t the president also weighed in, providing undue and inappropriate political pressure?
Van Grack withdrew from the case under a cloud of disgrace after having been caught red-handed violating Brady disclosure rules among other ethics issues. The Justice Department is controlled by political appointees accountable to the president, who is the only member of the executive branch who is accountable at the ballot box. Our Constitution requires democratic accountability of all executive branch agencies. This is an example of the political process correcting a grave injustice in accordance with constitutional principles.
12. The government could have charged Flynn with other crimes. Since he’s no longer under a plea agreement, is the government now free to charge other crimes?
The government is free to charge Flynn for any criminal misconduct that it can prove. But aside from the innuendo in this question, the government has not brought another charge. Flynn remains innocent until proven guilty. Thus, speculating about criminal liability that has not been charged is totally inappropriate.
Perhaps the only silver lining of the get-Trump movement is the way it will democratize an understanding of the importance of civil liberties and the rule of law. If these outrages can happen to a billionaire president and a decorated veteran of the U.S. military, then they can happen to anyone.
Sadly, the once-great Atlantic would have taken up the cause of prosecutorial misconduct in its heyday. Now, like so many in the legacy media, get-Trump hatred has blinded it to its own principles.