From xxxxxx <[email protected]>
Subject The Appalling Damage of Dropping the Michael Flynn Case
Date May 9, 2020 2:25 AM
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[It embeds into official U.S. policy a shockingly extremist view
of law enforcement as the enemy of the American people]
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THE APPALLING DAMAGE OF DROPPING THE MICHAEL FLYNN CASE  
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Neal K. Katyal and Joshua A. Geltzer
May 8, 2020
New York Times
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_ It embeds into official U.S. policy a shockingly extremist view of
law enforcement as the enemy of the American people _

Michael Flynn in the East Room of the White House in 2017, Jim Lo
Scalzo/European Pressphoto Agency

 

Criminal law specialists and members of the law enforcement community
are tough to really shock. But the Justice Department’s announcement
that it would drop criminal charges against Michael Flynn, President
Trump’s former national security adviser, has provoked, in addition
to outrage, a sense of utter demoralization among them. They’ve
never seen such a thing before. After all, Mr. Flynn twice pleaded
guilty to lying to the F.B.I.

But it’s important to understand _why_ all Americans should be not
just shocked but outraged. It’s not just because Mr. Flynn won’t
go to jail or offer any service toward justice.

It’s because this move embeds into official U.S. policy an extremist
view of law enforcement as the enemy of the American people. It’s a
deception that Americans must see through — and that the federal
judge overseeing Mr. Flynn’s case, Emmet Sullivan, can reject by
examining the Justice Department’s rationale in open court and by
allowing a future Justice Department to reconsider charges.

In 2017, when he pleaded guilty, Mr. Flynn apologized
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the judge for lying to investigators, saying, “I recognize that the
actions I acknowledged in court today were wrong, and through my faith
in God, I am working to set things right.”exposure to the legal
system. That is not the case with Mr. Flynn, a retired general and
former national security adviser to the president.

 

So it seems crazy for the Justice Department to abandon criminal
charges when the conviction based on them was all but signed, sealed
and delivered. Justice is blind — except, it seems, when it comes to
friends of President Trump like Mr. Flynn and Roger Stone.

MORE ON THE MICHAEL FLYNN CASE
Opinion | The Editorial Board: Don’t Forget, Michael Flynn Pleaded
Guilty. Twice.
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But it requires zooming out to see the real outrage. The Justice
Department’s shift reflects a deeply mistaken view of American law
enforcement. In this view, federal investigators and prosecutors are a
deep threat to the American people. That’s the narrative about the
handling of the Flynn case that began on far-right websites, then
migrated to Fox News and has now — appallingly — been embraced by
President Trump and his attorney general, Bill Barr. They’re all
peddling the idea that Mr. Flynn was “set up” by the F.B.I. and
the Justice Department.

The capstone to this narrative was the Justice Department’s
voluntary release last week of additional materials to Mr. Flynn’s
lawyers. This was itself an unusual event: Judge Sullivan had already
heard arguments from the prosecution and the defense about these
issues and rejected Mr. Flynn’s claims. But suddenly, Mr. Barr’s
Justice Department decided to hand over more. Even in those additional
materials, there was, as they say, no there there: no smoking gun, no
withheld exoneration.ents’ contents — especially a few pages of
F.B.I. notes
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down before Mr. Flynn’s interview. Mr. Trump said
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former adviser was “tormented” by “dirty, filthy cops at the top
of the F.B.I.”

But what the documents actually spoke to was the care taken by F.B.I.
investigators in making sure they adopted an approach that even a
Trump White House couldn’t see as “playing games”
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they interviewed Mr. Flynn. The documents certainly didn’t offer
exoneration: They didn’t change the fact that he’d lied or that
he’d later _admitted_ he’d lied. Yet, it gave Mr. Trump and his
allies _something_ they could claim was … enough.

Enough to do _what_? Not just exonerate Mr. Flynn, but also —
here’s the crucial part — condemn institutions: the F.B.I. and the
Justice Department. And that’s just what they’ve done. Mr. Trump,
Mr. Barr and those echoing them have used the Flynn case to make
condemnation of federal law enforcement official U.S. government
policy.

Never mind that the arguments made in the Justice
Department’s court filing
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don’t pass the laugh test. Never mind that even Mr. Barr’s Justice
Department surely doesn’t intend to apply the same principles to
every other case or possibly _any_ other case. Never mind any of
that: The point, really, isn’t just to spring Mr. Flynn. It’s to
impugn federal law enforcement.

Here’s the tell. The Justice Department’s new position isn’t
that Mr. Flynn didn’t lie — that couldn’t be its position,
because he _did_ lie, and he admitted in federal court that he lied.
Instead, the new filing argues that it was wrong for the F.B.I. to
interview him in the first place. Look carefully at who the villain
becomes in that narrative: not Mr. Flynn for lying, but the F.B.I. for
asking the questions to which he lied in response.

And there’s a second tell. If the goal was just to shield Mr. Flynn,
Mr. Trump could simply have pardoned him. That would have been a
regrettable abuse of the pardon power — but at least it would have
left Mr. Trump owning the decision and would have spared the Justice
Department of the patent, destructive corruption that its new filing
represents. But that didn’t happen — because institutional
destruction isn’t collateral damage for Mr. Trump. It’s the very
goal.

Fortunately, in our system, a prosecutor’s say-so is not enough to
drop a prosecution; it requires the approval of the court. And while
judges rarely interfere with such decisions, this is that rare case.
Judge Sullivan, who still presides over Mr. Flynn’s case, has three
important lines of inquiry available to him. First, he can examine why
the highly regarded former prosecutor of Mr. Flynn withdrew from the
case moments before the Justice Department’s astonishing filing.
Last year, after the Supreme Court essentially held that the Trump
administration had lied about the census and several Justice
Department attorneys attempted to withdraw from the case, the
presiding federal judge refused and began an inquiry
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the attorneys’ withdrawal. A similar inquiry is appropriate here.

Second, the judge can examine the department’s reasoning and inquire
into whether it is legally sound, including through on-the-record
hearings. And finally, the judge can reject the Justice Department’s
request to drop the charges “with prejudice.” Granting the request
would mean that no future Justice Department could rethink the matter
and revive the charges. There’s no reason for the judge to grant
that. If he doesn’t see any wrongdoing by earlier investigators and
prosecutors — and he hasn’t so far — then he can allow the
charges to be dropped _without _prejudice. That way, it’s possible
that a future Justice Department could take another look.

Presidents are not kings, and federal courts have a vital role to play
in protecting our democracy. By carrying out these three lines of
inquiry, the judge will be uncovering the truth and withholding his
imprimatur from Mr. Trump’s and Mr. Barr’s appalling assault on
American law enforcement.

_The authors are law professors at Georgetown._

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