Yes, the decision by two Court of Appeals judges to block efforts to scrutinize the Justice Department’s decision to drop its prosecution of Michael Flynn, President Trump’s former national security adviser, is that disturbing. Here’s hoping the entire U.S. Court of Appeals for the D.C. Circuit insists on reviewing this scandalous decision and overturns it.
Remember what’s involved here: Flynn himself pleaded guilty to two charges of lying to the FBI about his 2016 conversations with Sergey Kislyak, then-Russian ambassador to the United States, about sanctions then-President Barack Obama imposed on Russia for its interference in the 2016 campaign. Vice President Pence later said that Flynn lied to him about the nature of his contacts with Russia.
After only 24 days on the job, Flynn was dismissed by President Trump, who explained in a December 2017 tweet: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies.”
That was then. But in Attorney General William P. Barr’s Justice Department, the past can be miraculously rewritten. Guilty pleas can be erased. Anything that undermines former special counsel Robert Mueller’s investigation of Trump and Russian interference is a-okay.
So Justice moved to shut down the case by bizarrely claiming that Flynn’s admitted lies were not to “material” to a legitimate investigation.
District Judge Emmet G. Sullivan, aghast over a move with little precedent, smelled political interference. He asked John Gleeson, a former federal judge, to advise on whether the Justice Department should be allowed to drop the case.
Last Friday saw the botched massacre of Geoffrey Berman, the U.S. attorney for the Southern District of New York. The episode was telling for those, myself included, who once had higher hopes for Barr’s second stewardship of the department.
Jay Clayton, the intended nominee, might be a fine chairman of the Securities and Exchange Commission and an excellent corporate lawyer. He has no business overseeing the Southern District. Clayton’s “management experience and expertise in financial regulation give him an ideal background . . . and he will be a worthy successor to the many historic figures who have held that post,” Barr proclaimed in his Friday night announcement. This is dangerous hackery, insulting to those who have served in that post and, more important, to the department.
For those who thought Barr would be competent, consider: He ousted Berman, a registered Republican and Trump donor, and wound up with Audrey Strauss, a registered Democrat who has contributed to Hillary Clinton, Barack Obama and Joe Biden in the job. Well played.
It is not business as usual to fire a U.S. attorney — or it at least hasn’t been, with the exception of President George W. Bush’s mass dismissals in 2006. When it happens, Congress — and the public — needs to understand why.
Especially under the current circumstances. Wednesday brought remarkable testimony before the House Judiciary Committee from two current Justice Department lawyers. John Elias, former chief of staff to the assistant attorney general in charge of the Antitrust Division, described how the division had launched an unwarranted investigation of the cannabis industry, at Barr’s behest, and an equally unwarranted probe, in the wake of an angry presidential tweet, of automobile manufacturers’ agreement with California to abide by Obama-era emissions standards.