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A Presumption of Flynnocence

Attorney General Bill Barr’s transparent corruption has reached farcical new levels. And he’s not done by a damn sight.

Mandel Ngan/Getty Images

If you’re charged with a serious crime in the United States, you have the right to legal counsel at every stage of the process. If you’re a close political ally of President Donald Trump, you also get a second team of attorneys who will take up your cause. Those who can’t afford a lawyer are represented by public defenders; those whom the president can’t afford to let face consequences for their actions are represented by the Justice Department.

Michael Flynn, Trump’s former national security adviser, is the latest beneficiary of this corrupt arrangement. On Thursday, the U.S. attorney’s office in Washington, D.C., filed a motion in federal court to dismiss charges that Flynn lied to the FBI during the Russia investigation, bowing to pressure from Trump and his allies. Flynn pleaded guilty to the charge in 2017 as part of a plea agreement with special counsel Robert Mueller. Last year, the retired general reversed course and began to claim that he was the victim of prosecutorial misconduct. Under Attorney General Bill Barr, the Justice Department was happy to help him make the case against itself.

Dropping the Flynn case is a major step in Barr’s quest to wipe away the Russia investigation and the stain it has left on Trump’s presidency. But its true significance may lie in what it portends for the future. Thursday’s filing does not state outright that Flynn didn’t lie to FBI agents during an interview in the spring of 2017. Instead it argues that the agents didn’t have a lawful reason to investigate and question Flynn at the time, thus rendering it immaterial whether he lied or not. The filing, which draws heavily upon a questionable version of events, is signed only by Timothy Shea, the acting U.S. attorney for Washington, and a close Barr ally.

The DOJ’s inspector general found last year that the FBI had a lawful basis to investigate connections between Trump and his associates and the Russian government. Barr disputed that assessment at the time, as did John Durham, his handpicked Russia investigation investigator, in an unusual public statement. By making this dubious case, the Barr Justice Department moves away from advocating on behalf of Trump’s political allies and toward attacking Trump’s political adversaries.

Barr and his team are quickly running out of Trumpworld figures on whose behalf they can intervene. Last year the Justice Department made an unusual move on behalf of Paul Manafort, Trump’s former campaign chairman, to avoid transferring him to the Rikers Island jail in New York while he awaits trial for state-level charges there. He will instead be housed more comfortably in federal facilities in New York and Pennsylvania, where he will serve his sentence for tax fraud and money-laundering.

Earlier this year, the department also overrode a sentencing recommendation filed by federal prosecutors in Washington for Roger Stone, one of Trump’s former political operatives. A jury found Stone guilty of lying to Congress and witness-tampering last November. Prosecutors initially advised the court that he should serve between seven and nine years in prison. That news prompted fury from Trump, who described it on Twitter as a “miscarriage of justice.” Justice Department officials filed a new brief later that week that urged the court to show leniency; four of the prosecutors on Stone’s case resigned from it in apparent protest.

Past attorneys general might have blanched at the idea of intervening in high-profile cases in such a ham-fisted manner to boost the president and his allies. Barr apparently has no such scruples. Shortly after Thursday’s filing, CBS News broadcast an interview with the attorney general on his handling of the case. “President Trump recently tweeted about the Flynn case,” CBS News reporter Catherine Herridge asked him. “He said, ‘What happened to General Flynn should never be allowed to happen to a citizen of the United States again.’ Were you influenced in any way by the president or his tweets?”

“No, not at all,” Barr replied. “And, you know, I made clear during my confirmation hearing that I was gonna look into what happened in 2016 and 2017. I made that crystal clear. I was very concerned about what happened. I was gonna get to the bottom of it. And that included the treatment of General Flynn.” There was no admonishment of Trump for publicly commenting about ongoing cases, as the attorney general had suggested in March after the Stone debacle. If anything, Barr doubled down on the idea that he’s doing the job he was hired to do.

Barr also signaled that more could be coming. “John Durham is still looking at all of this,” he told Herridge. “This is one particular episode, but we view it as part of a number of related acts. And we’re looking at the whole pattern of conduct.” Durham, the U.S. attorney in Connecticut, was tapped by Barr in the spring of 2019 to conduct a review of the Russia investigation. Last October, Barr reportedly upgraded the inquiry to a criminal investigation, suggesting that Durham had found evidence that could potentially justify charges. In a Fox News interview last month, Barr claimed that what Durham had found “shows that we’re not dealing with just mistakes or sloppiness, there was something far more troubling here; and we’re going to get to the bottom of it.”

One potential avenue would be inquiries into government officials who spoke to reporters. Flynn’s troubles began in early 2017, when David Ignatius, a columnist at The Washington Post with famously deep sources within the intelligence community, wrote about Flynn’s conversations with Sergey Kislyak, the Russian ambassador to the U.S., citing a “senior U.S. government official.” That public revelation, followed by the White House’s denials that Flynn had discussed sanctions, led FBI officials to pay greater attention to his conduct and ultimately led to that fateful interview. Last month, The New York Times reported that unearthing the identity of that anonymous official, as well as other “leakers,” is among Durham’s top priorities.

News reports have indicated that Barr and Durham are closely scrutinizing top law-enforcement and intelligence officials who were in charge during the 2016 election, as well as the CIA’s handling of Russian intelligence during the investigation. In the CBS interview, Barr also left open the possibility that former FBI Director James Comey and his staff could face potential prosecution. “And I’m gonna wait till all the evidence is [in], and I get [Durham’s] recommendations as to what they found and how serious it is,” he said. “But if, you know, if we were to find wrongdoing, in the sense of any criminal act, you know, obviously we would, we would follow through on that.”

Pressure also extends beyond the White House and Main Justice. In interviews with Politico earlier this week, multiple Republican senators aired their frustration with FBI Director Christopher Wray for not doing enough to “clean up” the bureau ahead of the November elections. “I expect very dramatic action that proves that they know something was badly wrong over the last five or six years,” Iowa Senator Chuck Grassley said. “And around this town, the only thing that you send a signal is one of two things: Either somebody gets fired, or they get prosecuted.”

Even if these inquiries don’t lead to criminal charges, Barr and his allies have proven adept at using them to create a counternarrative to the Russia investigation, one where the president did nothing wrong and his adversaries did nothing right. “When history looks back on this decision, how do you think it will be written?” Herridge asked Barr in the Thursday interview. “Well, history is written by the winner,” he said with a chuckle. “So it largely depends on who’s writing the history.”