Former U.S. Attorney Barbara McQuade is concerned about whether the judicial system in the United States can handle President Donald Trump and Attorney General Bill Barr's attempt to rewrite the Michael Flynn case.
Writing for USAToday, McQuade explained the case against Flynn has suddenly become part of a "deep state conspiracy" because Trump and his supporters believe that the FBI forced Flynn to lie to them.
"Ordinarily, when a prosecutor seeks to drop a case, the motion to dismiss is unopposed and the judge grants the motion without a hearing," wrote McQuade. "Perhaps that’s what Attorney General William Barr was counting on. In Flynn’s case, though, a series of unusual facts have sparked a different response from Judge Emmet G. Sullivan. As a result, we are about to see whether our independent judiciary can withstand the dark arts of the Trump administration."
It was under special counsel Robert Mueller that Flynn was charged for lying to the FBI about his conversation with the Russian ambassador. The conversation between the two was monitored by the intelligence committee, so they knew what was said. Flynn still lied, and it's still not clear why.
"This is not the first time Barr has taken action to unwind Mueller’s work," said McQuade. "DOJ dismissed charges against two Russian shell companies indicted for conspiring to interfere with the 2016 election. Barr also overruled career prosecutors in their sentencing recommendation of Trump associate Roger Stone to advocate for a more lenient punishment. Now, despite Flynn's guilty plea, Barr seeks to dismiss the case against him altogether."
But instead of granting the motion from the DOJ, Judge Sullivan paused and appointed an "amicus curiae", a friend of the court, in this case a retired judge tasked with trying to make sense of the DOJ's new move.
"Sullivan has also indicated that he plans to issue an order permitting outside interested parties to weigh in with amicus briefs," she explained.
The motion to dismiss from the DOJ doesn't argue that Flynn didn't lie to the FBI, rather it argues that his lies didn't matter because the FBI didn't have any jurisdiction over the case for which Mueller hadn't yet been appointed.
"This is where the logic starts to contort," McQuade wrote. "DOJ argues that the lies cannot be material because the investigation was not properly predicated, that is, based on facts to support a crime or national security threat. And so, without a legitimate investigation, the argument goes, no lie arising under the investigation could ever be material. Poof! No materiality, no crime, and the case must be dismissed. This argument contradicts the conclusion of DOJ’s Inspector General, who found that the Flynn investigation was, in fact, properly predicated."
She went on to call the logic twisted and a "short-sighted strategy" from Barr that may help Flynn but would have a huge impact on the ability of law enforcement to do their jobs.
Meanwhile, it has become clear that Trump is using the Office of the President to reward his friends, she said. Sullivan could use his position to deny the motion from the DOJ, which would likely end up in a lengthy court battle, or Sullivan could find Flynn committed perjury when he gave conflicting accounts of lying to the FBI.
"Sadly, DOJ has made it necessary to bring in outside advocates to protect the judiciary from being seen as aiding and abetting corruption. But we can be grateful for an independent judge who will not allow himself to be fooled by smoke and mirrors," McQuade closed.