Monday , 13 July 2020

‘A Pardon by Another Name’: Lawyers Decry Barr’s Move to Dump Flynn Case

William Barr Attorney General William Barr. (Photo: Diego M. Radzinschi / ALM

U.S. Attorney General William Barr’s move to abandon the Michael Flynn prosecution after he had twice pleaded guilty to lying to the FBI was widely lambasted as a partisan decision benefiting an ally of President Trump and one that would further erode public confidence in the institution of the U.S. Justice Department.

The Flynn prosecution in Washington’s federal trial court had long been a rallying flashpoint for conservatives who argued the case was an example of prosecutorial overreach, despite that Flynn had admitted to misconduct and agreed to cooperate with Robert Mueller’s special counsel investigation of Russia’s interference in the 2016 presidential election.

Barr, speaking with CBS News on Thursday, disputed the notion he was doing the bidding of Trump—who had regularly assailed the Flynn case and championed his disgraced former national security adviser as a hero—when the Justice Department said it was moving to drop the prosecution with prejudice. “No, I’m doing the law’s bidding,” Barr insisted.

Flynn’s lawyer, Sidney Powell, called the Justice Department’s decision “a victory for truth, justice, the president, and millions of Americans who want the rule of law restored across the land.”

U.S. District Judge Emmet Sullivan now will weigh the Justice Department’s motion to dismiss the Flynn case. U.S. Attorney Timothy Shea argued Thursday there was no basis for the FBI to interview Flynn in 2017 in the first place, and therefore his statements about his conversations with Russian ambassador Sergey Kislyak were not material. Sullivan could decide to hold a hearing about the government’s push to drop the case, or the judge could enter an order quickly ending the prosecution.

A career prosecutor assigned to the Flynn case, Brandon Van Grack, withdrew from the case shortly before Shea filed papers to end it. Van Grack has not commented publicly about his decision, which mirrored the moves by career lawyers who quit the Roger Stone case after Barr intervened to argue for a lighter prison sentence for the Trump confidante.

Here’s what some lawyers are saying on social media and in interviews with news reporters about Barr, the move to drop the Flynn case and the integrity of the Justice Department under his leadership:

>> Channing Phillips, former acting U.S. attorney for the District of Columbia: “I can guarantee you, he is going to question the prosecutors,” Phillips said in a phone interview. “He is going to want to understand exactly the basis for this motion. … You have a new attorney general. You have a new U.S. attorney. You have new prosecutors who take a different position. But the facts haven’t changed.” [Reuters]

>> Julie O’Sullivan of Georgetown University Law Center and a former federal prosecutor: “I’ve been practicing for more time than I care to admit and I’ve never seen anything like this.” [The New York Times]

Shira Scheindlin,
Shira Scheindlin, former federal judge. (ALM photo)

>> Shira Scheindlin, of counsel at Stroock & Stroock & Lavan and former federal judge in Manhattan: “It’s highly unusual. Usually the government moves to dismiss because the defendant dies, like in the Jeffrey Epstein matter. Even then, the judge held a hearing. This is a strange occurrence—this is a man who pled guilty twice and was prepared to be sentenced. He had a motion pending to withdraw his plea, which had not been decided,” Scheindlin told The National Law Journal. “There’s a really bad political smell to this, particularly after the Roger Stone debacle,” she added. “This is going to be seen critically by prosecutors across the country as the Justice Department being the lawyer for the president, not the lawyer for the people.”

>> Kim Wehle of University of Baltimore Law and a former federal prosecutor: “Bill Barr’s shrugging off of Flynn’s established lying to Barr’s own FBI—and his nose-thumbing at his longtime friend and former colleague Robert Mueller’s careful work as a prosecutor with regulatory independence from Donald Trump—is a swipe at the heart of the rule of law in America. Once again, this administration’s self-dealing means that it now falls to the judicial system to remind us of the most fundamental of our collective values in the age of Trump.” [The Bulwark]

>> Michael Bromwich of Steptoe & Johnson LLP and a former DOJ inspector general: “I have been in and around DOJ since 1983. I have never seen a case dropped after someone has pled guilty and the underlying facts demonstrate beyond any shadow of a doubt he is guilty.  This is simply a pardon by another name. A black day in DOJ history.” [Twitter]

>> Jonathan Turley of the George Washington University School of Law: “The Flynn case represents one of the most ignoble chapters of the Special Counsel investigation. Notably, the motion itself could lay the foundation for suing on the basis of malicious prosecution.” [Turley’s blog]

>> Preet Bharara, former Obama-era U.S. attorney for Manhattan: “Who are the authors of the motion to dismiss the case against Michael Flynn? Usually their names would be on the brief. I doubt US Atty Timothy Shea wrote it by himself.” [Twitter]

>> Nancy Gertner, former Massachusetts federal trial judge: “The implications of the position they’re taking with Flynn would undermine false statement prosecutions from one end of the country to the other.” [Los Angeles Times]

Mike Davis
Mike Davis. (Photo: Diego M. Radzinschi / ALM)

>> Mike Davis, former lead judiciary counsel for U.S. Sen. Chuck Grassley, R-Iowa: “We are very fortunate to have Bill Barr as the Attorney General of the United States. He doesn’t need the job, fame, or money. And he’s fearless. He undid a grave injustice by Comey & other Deep State snakes by ordering TheJusticeDept to move to dismiss General Flynn’s case.” [Twitter]

>> Barbara McQuade of University of Michigan Law School and a former Obama-era U.S. attorney: “DOJ lawyers of integrity will be tempted to resign over today’s motion to dismiss the Flynn case. My advice is to please stay. We need you instead of those who might replace you.” [Twitter]

>> Solomon Wisenberg, white-collar defender: “It is absolutely clear from reading the exhibits to the DOJ’s Motion to Dismiss in U.S. v. Flynn that Comey was the brilliant, incredibly devious mastermind behind the Logan Act Hoax. He ran circles around DOJ’s leadership in two administrations, as well as the newbies in the WH.” [Twitter]

>> Frank Bowman of University of Missouri School of Law: “The fact that DOJ has reversed itself 180 degrees to let a presidential ally off the hook—after he pled guilty—is a yet another among the slinking cavalcade of humiliations Trump and Barr have inflicted on the [DOJ].” [Slate]

>> Elizabeth de la Vega, former federal prosecutor:  “It’s possible Judge Sullivan will deny the motion to dismiss, esp given that he thought the deal too lenient in the first place. He, like anyone experienced with criminal law, will see this motion to dismiss for what it is: A backdoor pardon based on lies about facts and law.” [Twitter]

>> Joshua Geltzer, executive director of the Institute for Constitutional Advocacy and Protection: “Remember that Trump could’ve achieved the same result (basically) by pardoning Flynn. But he didn’t have the guts. So Barr found a way to do it for Trump—but shield him from the responsibility & accountability. That makes it a bad day for BOTH the Justice Dept & democracy.” [Twitter]

>> Scott Greenfield, criminal defense lawyer:  “To watch a defendant beat back a § 1001 charge, to watch a guilty plea forsaken, to see the AG, the big guy himself, become embroiled in the claimed mishandling of a prosecution and do something about it, and to see the government put in writing the words every defense lawyer argues against the government, should be a wondrous thing, a miracle, cause for celebration. So why are the very people who should be thrilled by this bizarre turn of events not shouting with glee? Because it won’t help them. It won’t help their clients. It won’t help me or you. Because we’re not Flynn.” [Simple Justice]


Read more:

‘When Character Matters Most’: Lawyers Defend Stone Prosecutors Who Quit

‘Loss to the Pursuit of Justice’: Praise for Roger Stone Prosecutor Who Resigned

‘A Very Difficult Time’: Challenges for Career Lawyers at Trump’s DOJ

‘Slammed’: What Has Driven Departures From Trump’s Justice Department

Women Lawyers’ Group Stands Up for Jessie Liu After DOJ Nomination Scuttled

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