Yes, the decision by two Court of Appeals judges to block efforts to scrutinize the Justice Department’s decision to drop its prosecution of Michael Flynn, President Trump’s former national security adviser, is that disturbing. Here’s hoping the entire U.S. Court of Appeals for the D.C. Circuit insists on reviewing this scandalous decision and overturns it.
Remember what’s involved here: Flynn himself pleaded guilty to two charges of lying to the FBI about his 2016 conversations with Sergey Kislyak, then-Russian ambassador to the United States, about sanctions then-President Barack Obama imposed on Russia for its interference in the 2016 campaign. Vice President Pence later said that Flynn lied to him about the nature of his contacts with Russia.
After only 24 days on the job, Flynn was dismissed by President Trump, who explained in a December 2017 tweet: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies.”
That was then. But in Attorney General William P. Barr’s Justice Department, the past can be miraculously rewritten. Guilty pleas can be erased. Anything that undermines former special counsel Robert Mueller’s investigation of Trump and Russian interference is a-okay.
So Justice moved to shut down the case by bizarrely claiming that Flynn’s admitted lies were not “material” to a legitimate investigation.
District Judge Emmet G. Sullivan, aghast over a move with little precedent, smelled political interference. He asked John Gleeson, a former federal judge, to advise on whether the Justice Department should be allowed to drop the case.
Gleeson’s report this month was scathing. He accused the Justice Department of exercising a “gross abuse of prosecutorial power” to protect Flynn, charged Barr with “irregular” handling of the case, and described DOJ’s claims as “not credible” and “preposterous.”
But Judge Neomi Rao, appointed by Trump, joined by Judge Karen LeCraft Henderson, appointed by President George H.W. Bush, ruled to stop Sullivan in his tracks. The theme of their decision: Nothing to see here.
“This is plainly not the rare case where further judicial inquiry is warranted,” Rao wrote for herself and Henderson, adding, “This is not the unusual case where a more searching inquiry is justified.”
Are you kidding?
Rao and Henderson sounded like defense lawyers for Barr’s department. “The district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.”
Translation: God forbid that the truth be made public.
“These actions,” they wrote of Sullivan’s moves, “foretell not only that the scrutiny will continue but that it may intensify.”
Translation: God forbid that the DOJ has to answer more questions.
Court of Appeals Judge Robert L. Wilkins, appointed by Obama, was properly scathing in his dissent on both the law and the facts. “It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own,” he wrote, scorching his colleagues for failing to give “the lower court a reasonable opportunity to issue its own ruling.”
“In 2017,” Wilkins wrote, “the then-Acting Attorney General told the Vice President that Flynn’s false statements ‘posed a potential compromise situation for Flynn’ . . . and just a few months ago, the prosecution said that Flynn’s false statements to the FBI ‘went to the heart’ of a valid counterintelligence inquiry and ‘were absolutely material.’
“Now, in a complete reversal,” Wilkins added, “the Government says none of this is true.”
You think, Wilkins is asking us, that there just might be something fishy here?
Alert readers will notice that I mentioned which president appointed each of the three judges, a practice that makes some good people uneasy. They want our justice system to work in a nonpartisan way, and so do I. But with Trump and the Republican Senate speeding up their assembly line to load the benches with conservative judges — the Senate confirmed Trump’s 200th judicial appointee on Wednesday — we need to face the consequences of what they’re doing. And in the Flynn case, it’s very hard not to see the decision as partisan.
During a 2018 sentencing hearing, Sullivan told Flynn: “I’m not hiding my disgust, my disdain, for this criminal offense.” Those are precisely the feelings we should have for a ruling that would leave the Justice Department unchallenged and unquestioned when it makes a decision that reeks of political favoritism.