May 12, 2020

A lot happened today, but I am grappling with just two things tonight.

First, what happened today: White House coronavirus task force medical expert Anthony Fauci testified remotely before a Senate health committee. He warned that reopening states too aggressively would lead to “needless suffering and death.” He also said the death toll from coronavirus—currently more than 80,000-- was “almost certainly” higher than known.

The other big event was that the Supreme Court heard arguments about whether Congress or state prosecutors can subpoena information from the president or from his accountants or his bankers. The questioning appeared to go poorly for Trump’s lawyers, who had to argue against precedent and in favor of the idea that the president can largely act without oversight, but we will not know for a while—until June, at least—how the court will decide.

Less momentous, but still eye-opening, was the president’s tweeted suggestion that MSNBC anchor Joe Scarborough had murdered an aide in 2001 when he was a congressman from Florida. It’s mind boggling that a president would make this sort of unhinged allegation, but here we are.

To me, the two big stories from today were about what I see as a gamble on the part of Trump and his sycophants to grab power of the national government, and a surprising move on the part of a judge to undercut that power grab.

Tonight we learned that Trump’s acting Director of National Intelligence, Richard Grenell, has declassified the names of the Obama administration officials who interviewed Michael Flynn in January 2017. Grenell handed over the names to the Department of Justice.

Trump has lately been pushing the idea of “Obamagate” as a terrible political scandal. While he has been unable to define exactly what he means by that term, it appears to be the idea that the entire apparatus of government that investigated the Trump campaign’s interactions with Russian operatives in 2016 was somehow not a legitimate attempt to protect the nation but was instead an attempt to undercut the Trump campaign.

Last week, the Justice Department, led by Attorney General William Barr, attempted to dismiss the case against Michael Flynn, a member of the Trump campaign and transition team who twice pleaded guilty to lying to federal officials about his contacts with the Russian Ambassador Sergey Kislyak. The argument for this dismissal was that the investigation into Russian dealings with the Trump campaign was illegitimate, and thus Flynn’s lying to federal officials immaterial. Since this idea of “Obamagate” gained a popular foothold, a number of pro-Trump officials have been calling for the prosecution of Obama officials who participated in the Russia investigation.

Grenell has been vocal in his defense of Trump, insisting that Russia did not, in fact, interfere in the 2016 election, despite the findings of U.S. intelligence agencies, Special Counsel Robert Mueller, and the bipartisan Senate Intelligence Committee. For him now to declassify the names of the F.B.I. officials who interviewed Flynn and to hand those names to the Department of Justice, overseen by Trump supporter Attorney General William Barr, is ominous.

It suggests that the Trump administration really is contemplating legal action against F.B.I. officials who were investigating the attack on the 2016 election. This is unprecedented. More, though, it suggests that the Trump administration does not anticipate a Democratic presidency following this one, since it could expect any precedent it now sets to be used against its own people. That it is willing to weaponize intelligence information from a previous administration suggests it is not concerned that the next administration will weaponize intelligence information against Trump officials. That confidence concerns me.

But that’s only one side of the story with the Flynn case. The other side is just as interesting. The Justice Department’s move to drop the case against Flynn had to be approved by a judge. Tonight, that judge, Emmet G. Sullivan, moved… sideways. It was a really interesting move. Rather than deciding the issue at hand, the U.S. District Judge, who is known as a stickler for institutions, said he would receive briefs from interested third parties to offer opinions about the case. This means that the 2000 former Department of Justice employees (of both parties) who demanded Barr’s resignation over the Flynn case can now be heard. It will invite public scrutiny of the case, and means the case will not get swept under the rug.

Flynn’s lawyers instantly cried foul. Not only do they not want more attention to the facts of the case, but also it is possible that Sullivan’s order will permit him to require both sides to revisit the case, producing evidence and calling witnesses. Rather than enabling Trump to turn the tables on the original Russia investigation and invert it so that it serves his purposes, Sullivan’s move could remind people that there was a reason for the Russia investigation in the first place and rehash some of the stories of the Trump campaign's contacts with Russian operatives.

Both of these stories seem to me a preview of the 2020 election. Trump is going to attack his predecessor and argue that Obama officials engaged in an illegal underground campaign to weaken him. He might even try to prosecute officials who were part of the investigation into Russia’s actions in 2016. Sullivan’s unexpected move suggests that not everyone will let this attempt to sway the 2020 election go unchallenged.







Amicus briefs: