Tuesday’s four-hour hearing before the full D.C. Circuit Court of Appeals on whether District Judge Emmet Sullivan must grant the government’s motion to dismiss Michael Flynn’s case certainly had all the trappings of a legal proceeding. There were judges asking questions and lawyers saying lawyerly things. However, it was, at bottom, a farce. It appears likely that the full circuit will rule that the case should be sent back to Sullivan for further proceedings, but then what? The way that Sullivan’s attorney presented his case made it clear that the judge and the judicial system are now uninterested in revealing to the public the behind-the-scenes manipulation and possibly outright corruption that went into securing the Department of Justice’s decision to let one of Donald Trump’s closest former allies off of the hook.
Because of this failure, the public may never learn the full extent of the stunningly irregular process through which the Justice Department intervened in the case. According to a New York Times report, it began last year after Flynn’s current lawyer, Sidney Powell, reached out directly to Attorney General William Barr and persuaded him to have someone review the case, notwithstanding Flynn’s guilty plea. Senior Justice Department officials later intervened to change Flynn’s sentencing recommendation, arguing that probation would be an acceptable sentence. In May, of course, the Justice Department moved to dismiss the charge claiming in a 20-page filing that as a result of the review that Barr had ordered at Powell’s request, the government did not believe it could establish his guilt because his misstatements to the FBI were not “material” to any properly predicated investigation—an extremely questionable claim. It’s worth remembering that Trump has been trying to get Flynn extricated from legal trouble for years, including when he asked former FBI Director James Comey in the early months of the administration to go easy on Flynn.
In light of all this, a reasonable judge would have some questions about the government’s motion to dismiss. But after Sullivan ordered additional briefing and scheduled an oral argument, the department joined a petition by Flynn to the D.C. Circuit Court of Appeals, arguing that Sullivan had no authority to do even that—and that the case should be immediately dismissed.
While the full circuit appears poised to reject the motion, the decision on a practical level has little to do with the relevant legal standards and far more to do with whether the judge has to take the government’s claims at face value. There has only ever been one real question at the heart of the dispute: Do you believe that the government is telling the truth? If you do, then the motion should be granted. Given everything that has transpired, though, why would you?
For that reason, it was truly maddening to hear Sullivan’s lawyer Beth Wilkinson effectively back him into a corner on the critical issue of whether Sullivan is allowed to hold an evidentiary hearing or engage in fact-gathering before granting the motion or, instead, if he is confined to only hearing arguments from lawyers on the question. Wilkinson repeatedly sought to reassure the court that “no fact-finding has been requested,” that “there may be little left to discuss at the hearing,” and that the government’s concern that Sullivan might scrutinize its motives for dismissal was mere “speculation” because he does not know what he will do and might must just end up “listening to the arguments” and granting the motion.
To be sure, Wilkinson tried to hedge this in a way that seemed to preserve the possibility that Sullivan might do more. The idea, however, that Sullivan does not know what he would want to do at such a hearing if left to his own devices strains credulity. Having been cowed by a conservative political-legal-media complex into taking this silly position, anything more than a pro forma hearing appears unlikely, since it would be met with outrage among Flynn’s supporters and result in yet more appeal proceedings.
If this is what it ends up taking for Sullivan to “win” on appeal, you have to wonder what the point was. The end result will be vacuous legal proceduralism.
As several of the judges pointed out on Tuesday in questioning the government, it is not at all unusual for courts to question the veracity or completeness of claims made by Justice Department lawyers, which made Wilkinson’s reticence to engage with this notion all the more silly on the merits. In fact, it has been happening in parallel in a proceeding in the Southern District of New York involving a prosecution for violations of sanctions against Iran. In that case, the government obtained a conviction and then, months later, asked that the conviction be vacated as a result of “disclosure-related issues” (read: discovery violations) during the course of the prosecution. The judge eventually granted the motion, but not before asking a slew of pointed questions about what had actually transpired, including whether the government had made misrepresentations to her during the proceedings. The office promptly answered those questions, without objection, in a nearly 20-page, single-spaced letter following a review of documents and internal interviews that yielded several unpleasant disclosures.
At this point, you would have to be almost comically credulous to take a claim from this Justice Department at face value if there’s a meaningful chance that it could be false. To recall just a few data points: Barr himself was politely called a liar by a fellow judge in Sullivan’s court in March. In June, a former high-ranking Justice Department official in the George H.W. Bush administration testified before the House Judiciary Committee that Barr “regularly lie[s],” and his written testimony provided a robust case in support of the claim. Around the same time, the department’s internal ethics watchdog took the position that there is nothing wrong with the Justice Department launching entirely “pretextual” investigations. Several months ago, lawyers from my old office took the transparently ridiculous position—in cases that I once worked on, and reluctantly got dragged back into—that they are free to file “nakedly pretextual” applications with courts in order to obtain more time to investigate cases. Weeks ago, four former presidents of the D.C. Bar Association signed a nearly 40-page, single-spaced letter calling for an investigation of Barr for violating ethical rules, including on the theory that he had “repeatedly engaged in dishonest and deceitful conduct.” And Barr’s recent testimony before the House Judiciary Committee evinced, as one commentator correctly put it, “a pattern of deception, evasion and misrepresentation.” Finally, Chief Justice John Roberts has twice in the last 14 months rebuked the administration for presenting pretextual arguments for government actions in the census and Deferred Action for Childhood Arrivals program cases.
Had Sullivan acknowledged the ample reasons to be skeptical of the government’s motives for dismissing the case and taken an affirmative interest in fact-gathering, it would have been totally reasonable. It also would not have forestalled a potential pardon by Trump, who has already commuted the sentence of ally Roger Stone, whose facts were far more egregious. But so what. At least doing this basic fact-finding would clarify the truth behind this case that is already so obvious—that the government reverse-engineered a rationale through an unprecedented process so that a presidential ally would be immune from scrutiny.
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