When the Justice Department decided last month to drop its case against Michael Flynn, U.S. District Judge Emmet G. Sullivan — the jurist who’d accepted the former national security adviser’s guilty plea — was right in wanting to find out why.
So we’re feeling more than a little uncomfortable about a federal appeals court panel’s 2-1 decision Wednesday that forces Sullivan to butt out and simply grant the government’s motion to dismiss its case against Flynn, an ally of President Donald Trump.
Trump has railed constantly against Flynn’s conviction, which came about as a result of Special Counsel Robert Mueller’s Russia probe. And the Justice Department is headed by U.S. Attorney General William Barr, who has proven to be nothing more than Trump’s water-carrying toady since taking over for Jeff Sessions last year.
Sullivan’s a little skeptical? A little wary? A little worried that the fix is in for a Trump pal who might know things Trump would rather not have known?
We all should be.
But unless there are further appeals, Wednesday’s appellate panel decision will free Flynn, precisely as Trump has demanded.
‘Not the unusual case’?
Flynn pleaded guilty to lying to FBI agents over his 2016 conversations with Sergei Kislyak, Russia’s ambassador to the U.S., shortly before Trump’s inauguration.
“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,” Flynn said. “My guilty plea and agreement to cooperate with the Special Counsel’s Office reflect a decision I made in the best interests of my family and of our country. I accept full responsibility for my actions.”
But that was then.
Since then, Flynn has tried to withdraw his guilty plea. And Barr’s Justice Department last month made it all the easier for him by moving to dismiss the case entirely.
Federal prosecutors, at Barr’s bidding, came along with a review that concluded that the FBI’s interview with Flynn was “conducted without any legitimate investigative basis.”
Judge Sullivan is no fool. He countered with the unusual move of having a hard-nosed former judge, John Gleeson, look into the Justice Department’s request to abandon the Flynn case.
A hearing on the matter had been scheduled for July 16.
But in writing the Washington, D.C., appeals court’s majority opinion, Judge Neomi Rao said Wednesday that Sullivan had no reason to question the Justice Department’s decision.
“This is not the unusual case where a more searching inquiry is justified,” she wrote.
The appellate court panel also said Sullivan’s query “fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority.”
A matter of ‘public interest’
Nonsense. The constitutional and transparently more logical view was expressed by Appellate Judge Robert Wilkins, writing in dissent. Judge Sullivan, he said, “must be given a reasonable opportunity to consider and hold a hearing on the government’s request to ensure that it is not clearly contrary to the public interest.”
Wilkins added: “It is a great irony that, in finding the [Sullivan’s] District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own.”
A disturbing heavy-handedness
So goes the new way in Washington, where a once independent Justice Department increasingly is a tool in Trump’s toolbox.
Within hours of the D.C. court’s ruling, Aaron Zelinsky, a Mueller team member who prosecuted Trump adviser and friend Roger Stone, testified before a U.S. House committee.
“What I saw was the Department of Justice exerting significant pressure on the line prosecutors in the case to obscure the correct sentencing guidelines calculation to which Roger Stone was subject — and to water down and in some cases outright distort the events that transpired in his trial and the criminal conduct that gave rise to his conviction,” Zelinsky testified.
One more reason Trump’s gotta go. Because then Barr goes, too.
“I believe William Barr poses the greatest threat in my lifetime to our rule of law,” Donald Ayer, a former deputy attorney general under President George H.W. Bush, who also testified with Zelinski, told House members. “That is because he does not believe in its core principle that nobody is above the law.”
This trashing of governing norms, and of the separation of powers, goes on and on.
Last weekend, beginning on a Friday night when the public was not supposed to be paying attention, Barr and Trump forced out federal Southern District of New York chief prosecutor Geoffrey Berman. The famously independent and powerful office has been investigating Trump allies.
It is essential that the full D.C Circuit Court of Appeals decide to revisit the decision made by its three-member panel in the matter of Michael Flynn. Any of the 12 judges on the circuit could bring this before the larger court.
We urge Wilkins — who wrote the dissent — to do exactly that.
There’s an election in less five months. That’s no reason to allow Trump and Barr to roll the country now.
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