May 11, 2020
We are learning how it felt to live in Soviet Russia.
The All-Powerful, All-Knowing Leader holds court every night on TV, pouring abuse on any journalist who dares to contradict him. The state propaganda channel parrots his remarks slavishly and rewrites history as often as necessary. Government scientists are shunted aside if they don’t follow the party line; loyalty counts, not science and knowledge.
And the nation’s “Justice” Department protects the Great Leader’s friends while punishing his enemies.
This is the context for understanding Attorney General Bill Barr’s unprecedented interventions on behalf of Michael Flynn and Roger Stone, who were close to Donald Trump before and after his election. Both were targets of Robert Mueller’s investigation into Russian interference in the 2016 election, a probe that infuriated Trump. Mueller obtained indictments based on their lying to government officials. Flynn entered into a plea bargain, and Stone was convicted.
The Department of Justice’s treatment of their cases stands in stark contrast to its vindictive approach toward Andrew McCabe, the former Deputy Director of the Federal Bureau of Investigation who angered Trump by authorizing the Russia investigation.
Attorney General Barr Lets Flynn Off the Hook
Last week, Attorney General Barr ordered Department of Justice prosecutors to drop all criminal charges against Michael Flynn. The disgraced former National Security Advisor had entered into a plea bargain with Mueller in 2017 admitting that he lied to FBI agents.
The subject of Flynn’s deception was significant and raised national security issues. During the transition period between Trump’s election and inaugural, Flynn spoke by telephone with Sergey Kislak, the Russian ambassador to the U.S. On Dec. 29, 2016, the Obama Administration expelled 45 Russians as punishment for Russia’s interference with the 2016 election. The same day, Kislak called Flynn to discuss that development. Flynn asked that the Russian government not take any action in response to the expulsions and other sanctions, promising, “We’ll review everything”.
Flynn lied to Vice President Pence about that conversation, telling him that he had not talked about the sanctions with the Russian ambassador. On Jan. 17, 2017, Flynn also lied to two FBI agents, who had learned via an intercept that he had spoken with the Russian ambassador. Flynn told them he had not discussed the sanctions with Kislak. The DOJ, alarmed by Flynn’s behavior and doubting his veracity, launched a criminal investigation.
President Trump quickly tried to intervene on Flynn’s behalf, pressuring James Comey, the FBI chief, to “let Flynn go”. In May 2017, Trump fired Comey partly because the FBI chief Comey refused to drop the investigation. In December 2017, Flynn entered into the plea bargain with Mueller, but his sentencing was suspended.
Despite Flynn’s acknowledgement of guilt, President Trump has led a very public campaign on his behalf, saying that his treatment has been a “disgrace”.
It is unprecedented for the DOJ to drop criminal charges against a defendant who has pleaded guilty.
Doing a Favor for Roger Stone
Barr’s stunning move on Flynn followed his extraordinary effort to secure leniency for Roger Stone, after the long-time Trump operative was convicted on seven counts of lying to government officials as well as tampering with witnesses.
Mueller’s team had uncovered extensive emails in 2016 between Stone and Julian Assange of Wikileaks, who released a trove of emails from John Podesta, a leading Democrat, that created problems for Hillary Clinton’s campaign. Stone also corresponded with at least one Russian conducting an internet troll operation.
Following up on Mueller’s leads, the House Intelligence Committee, which was looking into possible Russian interference in the campaign, called upon Stone to testify in September 2017. The hearings were closed to the public, but Stone apparently gave false testimony to the Committee.
In January 2019, Robert Mueller’s team brought an indictment against Stone, who was arrested. In November, Stone was convicted of lying and obstructing an official proceeding. He was also found guilty of witness tampering; Stone tried to intimidate an acquaintance who was to testify against him in his criminal trial. Stone also threatened the judge in his criminal trial, posting on Instagram a picture of her head next to the crosshairs of a gun.
In February 2020, the DOJ prosecutors asked for a sentence of seven to nine years, partly because of Stone’s egregious behavior during his trial. However, Attorney General Barr promptly intervened, and the DOJ submitted a revised memorandum asking for a lighter sentence. Stone was sentenced to 40 months in jail. The four career prosecutors on the case withdrew in protest; three of them also resigned from the Department.
Stone and Donald Trump have known each other for decades. Stone served as a lobbyist for Trump and played an official role in Trump’s presidential campaign for a while. Stone has boasted often of his expertise in conducting “dirty tricks” in campaigns. Trump has frequently railed about how “badly” Stone has been treated by federal prosecutors, and the President has mused about the possibility of pardoning Stone.
What’s Wrong with a Few Lies?
So the Flynn and Stone situations share several elements:
- Their principal offense was lying to government investigators
- Their indictments stemmed from Robert Mueller’s investigation into Russian interference in the election
- Their guilt was well-established
- The President waged extraordinary public relations campaigns on their behalf
- Attorney General Barr gave them very special treatment, violating prosecutorial norms and traditions
Trump specifically, and Barr implicitly, have indicated that Flynn and Stone were somehow victims, unfairly targeted by prosecutors, persecuted by the “deep state”. Trump and Barr seem to imply that their only crime was lying, and that’s not so bad, right?
After all, we have a President who lies the way you and I breathe…automatically, not even thinking about it.
But there are two problems with that rationale.
First and foremost, if the FBI, Congress or the courts cannot compel officials or private citizens to tell the truth, our government cannot function. If people can lie or give false testimony with impunity, that deprives public officials of the information they need to run comprehensive investigations, conduct fair trials, maintain oversight over the executive branch and pass legislation.
Perjury undermines the basic functioning of government. That is why perjury is so dangerous and must be punished.
Going After the President’s Enemies
Second, in another recent case, the Justice Department considered lying to government investigators a very serious crime that warranted prosecution. But that episode involved an “enemy” of the President, rather than a friend: Andrew McCabe, the former Deputy Director of the FBI.
In July 2018, while Jeff Sessions was Attorney General, the Department sought a criminal indictment of McCabe for allegedly lying to FBI agents. The agents were conducting an internal inquiry into the source of a leak for an article in the Wall Street Journal. In October 2016 the WSJ ran a story about an FBI investigation of the Clinton Foundation that had begun in 2015.
Unlike Flynn and Stone, McCabe did not allegedly lie about issues related to national security, such as private conversations with a senior Russian official or intervention by Russia in the Presidential election. (It is not clear that McCabe actually lied to the FBI agents, but we’ll leave that issue aside.)
In October 2016, McCabe authorized FBI personnel to disclose to the WSJ a phone conversation he had with a senior DOJ official about the investigation into the Clinton Foundation. The DOJ official had called McCabe asking that the FBI abandon the inquiry, but McCabe refused to shut it down. News about the investigation had already leaked, but the disclosure was the Bureau’s first official admission that it was looking into the Foundation.
The FBI’s Inspector General found that McCabe did have the authority to approve the disclosure but criticized McCabe as doing so to boost his own reputation. The Inspector General also found that McCabe had “lacked candor” multiple times while under oath when the FBI agents questioned him about the leak.
Weaponizing the Justice Department
McCabe committed errors of judgment, but it seems harsh to seek a criminal indictment against him for misleading agents in an internal investigation about procedural violations like the source of a leak about a news story. False statements in such proceedings are usually punished by administrative discipline, not criminal penalties. There is a sharp contrast between the DOJ’s avid pursuit of criminal charges against McCabe and its highly accommodating approach to Flynn and Stone’s cases.
As it turned out, the grand jury apparently declined to return an indictment against McCabe. That’s rare, and it indicates that the grand jury thought the case against him was weak.
Why was the DOJ playing hardball with a career FBI agent? McCabe had authorized the investigation into whether President Trump had obstructed justice, and Trump was pursuing a vendetta against him. Sessions was on very thin ice with Trump, because he had infuriated Trump by refusing to shut down the Mueller investigation. Sessions may well have sought criminal charges against McCabe in an attempt to get back in Trump’s good graces.
Who’s Next — Clinton, Obama?
So now, under Bill Barr, the DOJ follows one standard for friends of the President and another for his “enemies”.
Thus far, Attorney General Barr has only used his power to protect Trump’s cronies. But if Trump is re-elected, there’s a real threat that Barr could unleash his troops on the President’s opponents. “Lock them up” could become the new reality, not just a rallying cry. Trump has already asked the FBI to launch a criminal investigation of Hillary Clinton’s email practices, though his requests have been rebuffed (so far).
The President has also accused the Obama Administration of engaging in a “treasonous act” when it was “spying on my campaign”. He’s referring to the FBI’s surveillance of some Trump operatives whom it suspected of colluding or co-operating with Russians during the 2016 campaign. Attorney General Barr has also referred to “spying” by the FBI, rather than surveillance. We know that Trump hates Obama intensely. Could he ask Barr to go after Obama in 2021?
Can’t happen here, you say?
Relax, comrade, and have some vodka.