Every goddamn thing about the Trump era is crazymaking. But for lawyers, one of the worst mindfucks is watching the nation's top lawyers burn down the Justice Department in service of a flagrantly lawless president. Yes, we should have known that it would come to this when Bill Barr begged Donald Trump to give him a job by drafting a memo that said the president has the right to tell the Justice Department to start or stop any criminal investigation. But we believed there were certain ground rules of the profession, guard rails that would stop an attorney general from weaponizing the DOJ as a political tool in post-Nixon era.

We were wrong. Terribly, tragically wrong.

From the moment he walked in the building Bill Barr has systematically disregarded every norm of the Justice Department and the legal profession itself, while simultaneously commanding the prerogatives and prestige of a "normal" attorney general who heads up an appropriately independent law enforcement agency. Even as Treasury officials lied to Congress and the court about the Census, and the White House defied congressional oversight with the backing of the DOJ, and Department lawyers were dispatched to intervene in private litigation over the president's financial documents — still the Justice Department insisted it should be accorded the same presumption of regularity the agency had received in the past. Even as Bill Barr protected the president by burying the Ukraine whistleblower complaint to hide it from Congress in an unambiguous violation of statute, we were all expected to treat this is a normal administration which abides by the law and is presumed to be telling the truth.

And then Barr got caught intervening in the prosecutions of Roger Stone and Michael Flynn for the president's benefit, going so far as to seek to dismiss the case against Flynn, at which point lawyers across the country lost their minds. Because the top law enforcement official in the land ginning up a fake scandal to undermine his own agency and let a sleazeball like Flynn off the hook to protect the president is a repudiation of everything lawyers believe about ourselves. Yes, we know that's not how most people see lawyers. But this is not who we thought we were.

Which a long preamble to the latest motion in the Flynn case. Apologies. But the amicus brief submitted by retired judge John Gleeson, who was appointed by US District Judge Emmet Sullivan to argue against the government's motion to dismiss the case against Michael Flynn, is a perfect encapsulation of so much that Barr's critics have been shouting from the rooftops. The government cannot act in blatant bad faith, in violation of every norm, and then insist upon a presumption of regularity.

Bill Barr has simply forfeited the government's right to be taken at its word, which is a tragedy for the Justice Department.


As Gleeson phrased it:

The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient. Moreover, the facts surrounding the filing of the Government's motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.

He's asking the Court to call Barr's bluff and refuse to bless this ridiculous miscarriage of justice. And it may not work, but it still matters that he said it.

Noting that the DOJ spent the past three years asserting that Flynn's lies to the FBI were both material and appropriately predicated — "The Government ties itself in knots trying to disprove its own earlier filings, delving deep into the supposed 'particular circumstances of this case' to cobble together a convoluted narrative of immateriality." — and that Flynn himself admitted this all under oath, Gleeson urges the Court to refuse to grant dismissal of the case "when the explanations the Government puts forth are not credible as the real reasons for its dismissal of a criminal charge."

While the government argued that Judge Sullivan has no discretion and must simply rubber stamp its motion, Gleeson goes into considerable detail on the history of Rule 48 of the Federal Rules of Criminal Procedure, which was specifically drafted to require judicial signoff to "guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants."

That is what has happened here. The Government has engaged in highly irregular conduct to benefit a political ally of the President. The facts of this case overcome the presumption of regularity. The Court should therefore deny the Government's motion to dismiss, adjudicate any remaining motions, and then sentence the Defendant.

Gleeson pulled no punches, explicitly accusing the Justice Department of misconduct, saying, "Where, as here, there is clear evidence that prosecutors have offered pretextual reasons for dismissal, and there is clear evidence of such gross prosecutorial abuse, the Court can and should deny leave under Rule 48(a)."

The brief makes short work of the DOJ's belated attempts to claim that Flynn was framed by rogue FBI agents, comparing him to any other criminal defendant:

Another way for this experienced Court to assess the transparent disingenuousness of the Government's arguments about predication is to imagine the Government's own response in any other case to a request for the information it says is fatal to Flynn's. Suppose any other defendant in a false statement case demanded disclosure of whether the agency at one point thought about closing the investigation. Or demanded production of the facts on which the investigation was predicated. Or demanded to know what the investigating agents subjectively believed at various points. Even if the defendant had not already pled guilty before one judge and reaffirmed that allocution under oath before another, the Government would scoff at those demands, and this Court would summarily deny them.

There is no other case in which the DOJ has taken the position that an interviewee can lie with impunity to federal investigators so long as he has committed no other provable crimes. And it would be particularly baffling for the DOJ to maintain this position with respect to counterintelligence investigations, which are often prophylactic and preventive.

SO MUCH THIS. Watching the DOJ turn itself into a pretzel to pretend that Flynn's rights were violated, as the DOJ is working mightily to curtail Fourth Amendment protections and Trump is longing for a return to the good old days of stop and frisk, is maddening. It was a voluntary interview, it didn't require predication, and Flynn could well have avoided a charge of lying to the FBI if he just told the goddamn truth!

And even accepting Barr's expansive (and ahistoric!) belief that the president has every right to prosecute his enemies and allow his friends to commit crimes with impunity, the time for that was before the judicial branch got involved. As Gleeson notes, "But the instant the Executive Branch filed a criminal charge against Flynn, it forfeited the right to implicate this Court in the dismissal of that charge simply because Flynn is a friend and political ally of the President."

On the plus side for Flynn, Gleeson does not support additional perjury or contempt charges for him. Rather, the brief argues that Judge Sullivan should "take Flynn's perjury into account in sentencing him on the offense to which he has already admitted guilt."

A defendant cannot be permitted to abuse this solemn and careful process by opportunistically entering a plea, gauging the reaction of the court, and then, if dissatisfied with that reaction, falsely claiming that the initial plea was a lie—all in an attempt to require further court proceedings or escape a conviction. Such self-serving gamesmanship obstructs the administration of justice by vitiating the plea process and wasting courts' and prosecutors' time and resources. The Court has its own compelling interest, independent of the Executive branch, in ensuring that parties do not abuse and manipulate its essential functions.

WOMP WOMP.

So, is it going to work? Who the hell knows! But this is about more than Michael Flynn. This is about the heavy cost to our nation's system of justice when it is corrupted in service of one very bad man.

This is the price of Republicans' single-minded worship of an all-powerful unitary executive who can bend the apparatus of the federal government to his whim. Judge Gleeson brought the receipts for the institutional damage to the prestige and credibility of the Justice Department wrought by Bill Barr, and we will be paying this one off for decades to come.

[Amicus Brief]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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