When the Department of Justice announced that, after Flynn pleaded guilty to lying to the FBI, it would drop the case before sentencing, U.S. District Judge Emmet Sullivan asked a retired colleague, John Gleeson, to write an amicus brief in opposition to their decision. Gleeson filed that brief on Wednesday, using words like “preposterous” and referring to arguments that “frankly, make no sense.” It was an evisceration of the rationalizations put forward by the attorney general. But it all comes down to this.
The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient. Moreover, the facts surrounding the filing of the Government’s motion constitute evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.
When Gleeson refers to “the facts surrounding the filing of the Government’s motion,” he documents the president’s tweets as an example.
Gleeson devoted a section of his brief to document the President’s repeated tweets and other public statements about the Flynn case.
“These tweets were issued against the background of a severe breakdown in the traditional independence of the Justice Department from the President,” Gleeson said.
But in addition to the president, Gleeson might have also pointed out how the attorney general has consistently said and done things that undermine his credibility in these matters. For example, if we go back to Barr’s release of a summary of the Mueller report, not only did the special prosecutor himself object to the way his findings were twisted, Judge Reggie B. Walton called the move “distorted” and “misleading.” He went on to suggest that Mr. Barr’s “lack of candor” called into question his “credibility and, in turn, the department’s” assurances to the court.
The attorney general is now doing the exact same thing with respect to the outcome of the Durham investigation. Just over a year ago, Barr tasked U.S. Attorney John Durham to investigate the origins of what eventually became the Mueller probe into Russian interference in the 2016 election and the allegation that the Trump campaign was involved. Barr is being careful to avoid saying when the Durham investigation will be completed, but take a look at what he said about it during a recent interview on Fox News with Brett Baier.
In suggesting that the investigators “spring-loaded” an investigation into a presidential campaign with a “slender reed as a basis for it,” Barr states that exculpatory evidence was ignored. He goes on to suggest that the investigators continued to push an investigation when “it was obvious there was nothing there.” He then ups the ante on previous claims by saying that, “for the first time in American history, police organizations and national security organizations were used to spy on a campaign and there was no basis for it,” going on to add that it could have effected the election. It is important to emphasize that Barr’s statement is directly contradicted by the findings, not only of Inspector General Horowitz, but by the Senate Intelligence Committee.
Barr then says that when the investigation continued after the election, it was an effort to sabotage the president. In summary, Barr states that he is very troubled by what has been brought to his attention. Those are the words of someone who launched an investigation with a pre-determined outcome in mind and is now in search of anything that will support his assumptions.
The fact that Barr is saying all of that publicly before the Durham investigation is completed tells us that once again, he is previewing what he wants Americans to conclude about the findings—just as he did with the Mueller report.
I’m sure that Trump’s enablers in right wing media will run with whatever Barr says when it comes to the outcome of the Durham investigation. But for the rest of the media, it is critical that they don’t make the same mistake they did when the attorney general released his summary of the Mueller report. Here’s how Eric Boehlert summarized what happened at the time.
Rather than going with accurate headlines, such as “Trump’s attorney general claims Mueller has cleared the president,” newsrooms just tossed all context aside and ran with GOP-friendly proclamations: “Mueller finds no conspiracy” (Washington Post), “Mueller finds no Trump-Russia conspiracy” (New York Times),” Mueller finds no Trump-Russia conspiracy” (Politico), “Mueller doesn’t find Trump campaign conspired with Russia” (Wall Street Journal), “Mueller finds no Trump collusion, leaves obstruction open” (Associated Press).
In 2016, the media became obsessed with an incendiary announcement from James Comey in the late stages of a presidential campaign. They repeated that mistake with the release of Barr’s summary of the Mueller report. As the 2020 election nears, they will once again be tested by the results of the Durham investigation from an attorney general who has been deemed by the courts as lacking any credibility. Let’s get it right this time.