News & Politics

Obama: 'No Precedent' for Flynn Motion. He Should Talk to His Former AG Eric Holder

AP Photo/Larry Downing, Pool

Barack Obama has suddenly reinjected himself back into politics by having a private conversation leaked that reflects badly on the current White House occupant.

The former president said in a phone call with the Obama Alumni Association that the White House response to the coronavirus crisis has been “an absolute chaotic disaster” — which pretty much describes every minute he ever spent in the Oval Office. During the same call, he said “the rule of law was at risk” because the Department of Justice won’t pursue the charges against Michael Flynn.

Both observations are well-worn Democratic talking points, echoed by the media since Trump took office. But the ex-president then told the association “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.”

Someone should have gently pointed out to Obama that Michael Flynn was never charged with perjury. As Jonathan Turley points out, Flynn was charged with a single count of false statements to a federal investigator — lying to the FBI.

Beyond that, maybe Obama should have hired some fact-checkers for his statements. Or perhaps he should have called Eric Holder, his former attorney general, who no doubt, could have enlightened him. Turley writes, “Holder moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan.”

At the time of the motion Holder declared “The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis.”  What is obvious is the new guidelines issued at the time were honored in the breach during the Flynn prosecution.

While people of good faith can certainly disagree on the wisdom or basis for the Flynn motion, it is simply untrue if President Obama is claiming that there is no precedent or legal authority for the motion.

Turley also lists some precedents for the Flynn motion from case law.

Fourth, there are cases where the Department has moved to dismiss cases on grounds of prosecutorial misconduct or other grounds touching on due process, ethical requirements or other concerns.  One that comes to mind is United States v. Stevens where President Obama’s own Attorney General, Eric Holder, asked the same judge in the Flynn case to dismiss that case.  That was just roughly ten years ago.  As with Flynn, there was an allegation of withheld evidence by prosecutors.

There’s even eerie precedent for cases that mirror Flynn’s.

Second, there is ample precedent for this motion even though, as I noted in the column calling for this action, such dismissals are rare.  There is a specific rule created for this purpose.  Federal Rule of Criminal Procedure 48(a) states the government may dismiss an indictment, information or complaint “with leave of the court.” Moreover, such dismissals are tied to other rules mandating such action when there is evidence of prosecutorial misconduct or fundamental questions about the underlying case from the view of the prosecutors.  I wrote recently about the serious concerns over the violation of Brady and standing court orders in the production and statements of the prosecutors in the case.

If you’ve followed Obama’s career as long as I have, you recognize the patterns in his argument. There’s the gross exaggeration of “no precedent”; there’s the ignorance of getting the charges wrong; and the general hyperbole of the statement.

It’s classic Obama.