Nearly 2,000 former Department of Justice (DOJ) and FBI officials signed an open letter slamming Attorney General William Barr for abandoning the prosecution of retired Gen. Mike Flynn, a former national security adviser for President Donald Trump. They claimed that Barr dropped the charges for political reasons, even though Flynn’s attorney, Sidney Powell, presented evidence suggesting Flynn was “set up by corrupt agents” who threatened his son in order to pressure him into pleading guilty.
By condemning Barr’s decision to drop the charges, these career bureaucrats are effectively unmasking themselves as partisans for a “deep state,” more focused on protecting the good name of the FBI and the DOJ than on seeking justice in the Flynn case. This disregard for the horrific way Flynn was treated effectively renders them unfit to serve in law enforcement going forward.
The letter condemns Barr’s move as “extraordinarily rare, if not unprecedented.” The letter calls on Barr to resign and encourages Congress to formally censure the attorney general for “his repeated assaults on the rule of law in doing the President’s personal bidding rather than acting in the public interest.” The bureaucrats made no mention of former President Barack Obama’s self-described “wingman” Eric Holder.
The bureaucrats defended the prosecution of Flynn by noting that the retired general “admitted under oath and in open court that he told material lies to the FBI in violation of longstanding federal law. … If any of us, or anyone reading this statement who is not a friend of the President, were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we would be prosecuted for it.”
Yet Flynn’s confession would be inadmissible if the prosecution withheld from the court the fact that the retired general confessed under duress. It would also be moot if Flynn made false statements in an interview that was not material to a properly-predicated investigation. There is an excellent case to be made on all three of these arguments.
As National Review‘s Andrew C. McCarthy, a former U.S. Attorney for the Southern District of New York, explained, evidence obtained by Flynn’s lawyer Sidney Powell and recently released to the public seems to confirm not just that Flynn had been set up but that Special Counsel Robert Mueller’s staff had threatened to target his son unless he confessed to the false statements charge.
“As I’ve noted several times over the years, it has long been speculated that Flynn — though he did not believe he was guilty (and though the agents who interviewed him also did not believe he had intentionally misled them) — nevertheless pled guilty to false-statements charges because prosecutors from Special Counsel Robert Mueller’s staff threatened him,” McCarthy wrote. “Specifically, Flynn is said to have been warned that, if he refused to plead guilty, prosecutors would charge his son with a felony for failing to register with the Justice Department as a foreign agent. Such a so-called FARA violation (Foreign Agent Registration Act) is a crime that the DOJ almost never charged before the Mueller investigation, and it had dubious application to Flynn’s son (who worked for Flynn’s private-intelligence firm).”
“Well, Powell now contends that the new disclosures demonstrate that Mueller’s prosecutors — she specifically cites Brandon Van Grack, who now runs Justice’s FARA unit — did indeed promise Flynn that they would not charge his son if Flynn pled guilty. Worse, Powell avers that the prosecutors coerced Flynn and his counsel to keep this agreement secret. That is, this was to be a side deal that would not be written into the plea agreement and therefore would be kept from the court and the public,” McCarthy added.
“Under federal law, all understandings that are relevant to a guilty plea must be disclosed to the judge. It would be not merely a serious ethical breach for government lawyers to fail to reveal such an arrangement. It would be a fraud on the court.”
McCarthy also made the argument that the DOJ cited in dropping the case against Flynn. “There was no good-faith basis for an investigation of General Flynn. Under federal law, a false statement made to investigators is not actionable unless it is material. That means it must be pertinent to a matter that is properly under investigation,” the former U.S. Attorney wrote. “If the FBI did not have a legitimate investigative basis to interview Flynn, then that fact should have been disclosed as exculpatory information. It would have enabled his counsel to argue that any inaccurate statements he made were immaterial.”
Flynn pled guilty to making false statements in a January 24, 2017 interview about communications he had with Sergey Kislyak, then the Russian ambassador to the U.S., during the transition from President Obama to President Trump. It is entirely proper for an incoming national security adviser to meet with an ambassador, and the idea that these communications somehow violated the Logan Act — which forbids private interference in the conduct of U.S. foreign policy — is absurd.
Later revelations even suggested the FBI set a “perjury trap” for Flynn.
As Jonathan Turley, a constitutional law professor at George Washington University, put it, then-FBI Director James “Comey et al sought to create a crime in the absence of any evidence of criminal conduct. The case has now collapsed and represents one of the most ignoble moments for [former Special Counsel Robert] Mueller. The Justice Department did the right thing in seeking this dismissal. The new evidence not only undermined the legitimacy of the prosecution but the Justice Department itself. For those blinded by this age of rage, the abuse has been ignored and even defended.”
The Justice Department did the right thing in seeking this dismissal. The new evidence not only undermined the legitimacy of the prosecution but the Justice Department itself. For those blinded by this age of rage, the abuse has been ignored and even defended.This is long overdue
— Jonathan Turley (@JonathanTurley) May 7, 2020
Barr was right to drop the case against Flynn — not because Trump wanted it or because it was politically convenient but because it was just and right. These feckless bureaucrats have sold their souls for an anti-Trump talking point.
As Sean Davis, co-founder of The Federalist, so eloquently put it, “It was awfully nice of them to put in one place a list of corrupt, lawless hacks who have no business serving in government ever again.”
It was awfully nice of them to put in one place a list of corrupt, lawless hacks who have no business serving in government ever again. https://t.co/rHSSIMbg7n
— Sean Davis (@seanmdav) May 11, 2020
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.