On Wednesday, more than 1,250 former Justice Department employees issued a scathing letter to the department’s inspector general, Michael Horowitz, concerning “Attorney General Barr’s possible role in ordering law enforcement personnel to suppress a peaceful domestic protest in Lafayette Square on June 1, 2020, for the purpose of enabling President Trump to walk across the street from the White House and stage a photo op at St. John’s [Episcopal] Church, a politically motivated event in which Attorney General Barr participated.” The Justice Department alumni argue that Barr’s actions may have violated the First and Fourth Amendments and that, in deploying an alphabet soup of federal law enforcement groups to suppress protected speech, Barr’s conduct raised “profound doubts that the personnel deployed from these agencies are adequately trained in policing mass protests or protecting the constitutional rights of individuals who are not subject to arrest or have not been convicted of a crime.” They ask that Horowitz “immediately open and conduct an investigation of the full scope of the Attorney General’s and the [Justice Department’s] role in these events. The rule of law, the maintenance of the Department’s integrity, and the very safety of our citizens demand nothing less.”
Regardless of whether Horowitz takes up the issue, the letter serves as an investigative road map for the next administration to review Barr’s conduct and for bar associations to consider whether Justice Department lawyers who participated in these actions adhered to their professional responsibilities. Most critically, the letter may rouse current lawyers in the department to resist illegal orders and to affirm their obligations to uphold and defend the Constitution. (Many former government officials are trying to set an example by tweeting the hashtag #UpholdTheOath along with the oath they took when installed in government.)
Also on Wednesday, retired New York federal judge John Gleeson filed his amicus brief at the invitation of U.S. District Judge Emmet G. Sullivan on whether to accept the Justice Department’s decision to dismiss the charges against former national security adviser Michael Flynn — for which Flynn had already pleaded guilty — concerning his lies to the FBI about his conversations with the Russian ambassador Sergey Kislyak during the 2016 transition. (Since the engagement of Gleeson to brief the issue, transcripts of the calls affirm that Flynn blatantly lied to the FBI concerning discussions about lifting sanctions against Russia.) While Sullivan considers Gleeson’s brief, an appeals court is already considering a motion from Flynn’s lawyers challenging Sullivan’s refusal to dismiss the case upon request attacking his action as biased and beyond the scope of his authority. (The Post explains, “Flynn’s lawyers have accused Sullivan of bias and asked the federal appeals court to intervene, asking that it order Sullivan to drop the prosecution immediately or to reassign Flynn’s case to another judge.”)
Former Justice Department spokesman Matthew Miller tells me, “It’s a detailed and devastating take-down of the Justice Department’s argument that makes clear just how corrupt Barr’s intervention in this case was. Because of the D.C. Circuit’s involvement, it may take some time, but I suspect justice will eventually be done in this case.”
A respected jurist and former prosecutor, Gleeson is unsparing: “The Government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding,” he argues. “They contradict and ignore this Court’s prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact.” Accordingly, “leave of court should not be granted when the explanations the Government puts forth are not credible as the real reasons for its dismissal of a criminal charge.”
Gleeson also persuasively argues that the government is guilty of prosecutorial misconduct. “The Government has engaged in highly irregular conduct to benefit a political ally of the President. The facts of this case overcome the presumption of regularity. The Court should therefore deny the Government’s motion to dismiss, adjudicate any remaining motions, and then sentence the Defendant.”
Finally, Gleeson presents the argument that Flynn is guilty of perjury, though he recommends that this be taken into account on sentencing rather than serve as the basis for a new charge of contempt of court. Gleeson writes: “There is irrefutable evidence in the record that Flynn made material false statements to this Court in his Declaration in Support of his Supplemental Motion to Withdraw Plea of Guilty . . . on two topics: (i) whether he knowingly made materially false statements to the FBI. . . and (ii) whether the FBI induced him to enter a plea by threatening to prosecute his son.” If Flynn’s original declaration was truthful, as the transcripts confirm it was, then the newest declaration is false. “Under federal law, a defendant who makes two or more material declarations under oath before a U.S. court that ‘are inconsistent to the degree that one of [those declarations] is necessarily false’ has committed perjury, even without proof as to which statement is false,” Gleeson writes.
Gleeson’s brief receives widespread praise from legal experts. “It is thorough, careful, precise, candid, utterly devastating as a legal matter, and not in the least bit overstated,” constitutional scholar Laurence H. Tribe tells me. “No judge who rules against the position articulated in this brief can possibly retain the respect of his or her peers.” Tribe continues, “As this amicus brief meticulously demonstrates beyond any reasonable doubt, a decision in favor of DOJ in this case would have to be ‘based solely on the fact that Flynn is a political ally of President Trump.’ I cannot recall reading a more compelling or more obviously irrefutable legal submission in years.” Finally, Tribe adds, “If I had been a lawyer on the other side of this matter, I’d be thoroughly ashamed of myself.”
Former acting solicitor general Neal K. Katyal agrees. “It’s a deeply powerful brief, one that directly spotlights all of the bogus rationales offered up by the Justice Department to overrule its prior positions," he says.
In sum, both the Justice Department alumni letter and Gleeson’s brief boldly reaffirm the rule of law and the impermissibility of using law enforcement to do the president’s political bidding.