May 11, 2020

The announcement last week by the Department of Justice that it would drop criminal charges against Trump’s former National Security Advisor Michael Flynn, who twice pleaded guilty of lying to the FBI, has set up a conflict between the Trump administration and the rule of law.

On Thursday, Timothy Shea, interim U.S. Attorney for the District of Columbia and a protege of Attorney General William Barr, filed a motion to drop the charges against Flynn just hours after the lead career prosecutor in the case withdrew. Shea argued that the Russia investigation was not legitimate, and that therefore Flynn’s lies to the FBI were immaterial.

On Sunday, Mary McCord, who was the acting assistant Attorney General for National Security from 2016 to 2017, early on in the Russia investigation, wrote an op-ed in the New York Times accusing Barr of twisting her words to justify dropping the case against Flynn. McCord noted that both the DOJ and the FBI recognized that Flynn’s lies about his discussions with Russian Ambassador Sergey Kislyak would leave him open to blackmail from Russians. What they disagreed about was when to warn the White House that Flynn was compromised. Barr’s many quotations of her to suggest she opposed the investigation were taken out of context, she wrote; she did not “anywhere suggest that the F.B.I.’s interview of Mr. Flynn was unconstitutional, unlawful or not ‘tethered’ to any legitimate counterintelligence purpose.”

Today nearly 2000 former officials in the Justice Department called for Barr to resign from his office and for Congress to censure him. The former officials charged him with introducing “political interference in the Department’s law enforcement decisions.” "Attorney General Barr’s repeated actions to use the Department as a tool to further President Trump’s personal and political interests have undermined any claim to the deference that courts usually apply to the Department’s decisions about whether or not to prosecute a case," they wrote. “Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics they are autocracies.”

In the New York Times, Georgetown law professors Neal K. Katyal and Joshua A. Geltzer warned that the dismissal of the case against Flynn was not simply about letting off a friend of the president. They noted that “this move embeds into official U.S. policy an extremist view of law enforcement as the enemy of the American people.” The Trump administration’s actions condemn fundamental U.S. institutions: the FBI and the Department of Justice. If the goal was simply to shield Flynn, they note, Trump could have pardoned him. Instead, the Trump administration is discrediting the fundamental institutions that establish the rule of law.

This ties into Trump’s push today to spread the idea of “Obamagate.” He tweeted about this repeatedly on Sunday, but he ran into trouble at his news conference on Monday, a conference that was theoretically about the coronavirus. “Obamagate” is a new conspiracy theory suggesting either that President Barack Obama has committed treason by criticizing Trump on a leaked phone call or that Obama set up Flynn as part of a grand scheme to undermine the Trump campaign, and later administration, with a bogus Russia investigation. (There is no evidence of this, of course.)

Today Philip Rucker of the Washington Post asked Trump: “In one of your Mother’s Day tweets, you appeared to accuse President Obama of ‘the biggest political crime in American history, by far’ — those were your words. What crime exactly are you accusing President Obama of committing, and do you believe the Justice Department should prosecute him?”

“Uh, Obamagate. It’s been going on for a long time,” Trump said. “It’s been going on from before I even got elected, and it’s a disgrace that it happened, and if you look at what’s gone on, and if you look at now, all this information that’s being released — and from what I understand, that’s only the beginning — some terrible things happened, and it should never be allowed to happen in our country again.”

When Rucker pressed the president to explain what, exactly, the crime was, Trump replied: “You know what the crime is. The crime is very obvious to everybody. All you have to do is read the newspapers, except yours.”

A number of Trump loyalists are now throwing their weight behind this “Obamagate” meme and are calling for prosecution of those members of the FBI and DOJ that investigated Russia’s involvement in the 2016 election. Senator Chuck Grassley (R-Iowa) claimed that Flynn was entrapped and called it “tyranny,” saying that those responsible “ought to be prosecuted.” When asked about holding senior Obama administration officials accountable for the investigation that ensnared Flynn, Representative Devin Nunes (R-CA) the ranking member of the House Intelligence Committee told a radio station, ““Nobody more than me wants to see these people prosecuted.”

(Nunes, you will recall, did not disclose during the impeachment hearings that he had been in contact with political operative Lev Parnas, who is now under indictment for contributing Russian money to American political campaigns.)

But as Trump’s people seek to prosecute officials in the Obama administration, Trump continues to maintain that he himself cannot be subject to oversight. Tomorrow, the Supreme Court will hear arguments on whether Trump can keep his financial records secret from Congress and state prosecutors. At heart, this is a question about whether the president is above the law.

And so, we struggle to preserve the rule of law in America, the fundamental principle on which this country was based.

Meanwhile, we learned tonight that a previously undisclosed report from the White House shows that numbers of coronavirus infections around the country are rising, not falling, as Trump has said. The coronavirus situation is so bad in the Navajo Nation in the U.S. Southwest that Doctors Without Borders, the international organization best known for sending medical professionals into third-world countries and international conflict zones, had dispatched a team to the U.S.

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Notes:

Barr: https://www.msn.com/en-ca/news/world/william-barrs-doj-is-now-covering-up-crimes-for-trump-in-broad-daylight/ar-BB13Nf00

McCord: https://www.nytimes.com/2020/05/10/opinion/bill-barr-michael-flynn.html

Press conference: https://www.vox.com/2020/5/11/21255214/trump-obamagate-philip-rucker-coronavirus-press-conference

https://www.vox.com/2020/5/11/21254398/trump-tweets-mothers-day-obamagate-coronavirus

https://www.politico.com/news/2020/05/11/senate-republicans-trump-obamagate-249734

https://abcnews.go.com/Politics/2000-doj-officials-call-ag-barr-resign-flynn/story

Ken Starr, Obamagate:

Grassley:

Flynn case: https://medium.com/@dojalumni/doj-alumni-statement-on-flynn-case-7c38a9a945b9

https://www.nytimes.com/2020/05/08/opinion/michael-flynn-trump-barr.html

https://www.nbcnews.com/politics/white-house/unreleased-white-house-report-shows-coronavirus-rates-spiking-heartland-communities-n1204751

Navajo Nation: https://www.cbsnews.com/news/doctors-without-borders-navajo-nation-coronavirus/