It was another brutal day for justice in America on Thursday. Two particular legal proceedings merely confirmed what had already become blindingly obvious during the Trump administration, namely that there is no real legal sanction for public corruption and abuse of power.
The proceeding that has dominated the headlines is the DOJ’s decision to withdraw from the case against Michael Flynn because his lies to the FBI were not relevant to what Flynn was being investigated for. According to the DOJ, “The government is not persuaded that the Jan. 24, 2017, interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue”. Flynn has pled guilty in this case twice already and legal historians have so far been unable to find a single prior case in which the DOJ has withdrawn from a case after accepting a guilty plea.
The DOJ’s filing withdrawing from the case is an astounding document. It claims that Flynn’s lies to the FBI about his contacts with Russian Ambassador Kislyak were not material to the counterintelligence investigation against him. But the purpose of that investigation, clearly laid out in an August 2016 FBI memo, states, “The goal of the investigation is to determine whether the captioned subject [i.e. Flynn], associated with the Trump team, is being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to national security and/or possibly a violation of the Foreign Agents Registration Act [FARA]”. The idea that lying to the FBI about contacts with Russian Ambassador is not material to such an investigation is laughable. Moreover, as Elizabeth de la Vega points out, the statue under which Flynn was charged treats materiality as something within the agency’s jurisdiction, with no requirement that it be materially linked to any specific investigation.
The DOJ further claims that, prior to getting the wiretap transcripts on Kislyak, it was preparing to close the Flynn investigation, which makes the subsequent FBI interview baseless. But I happen to remember a case just slightly less than four years ago where the FBI actually closed a case but then dramatically reopened it just days before the 2016 election when supposedly new information suddenly became available. The case, of course, involved Hillary Clinton’s emails. The idea that preparing to close a case precludes further investigation is again absurd.
The DOJ further contends “Mr. Flynn previously pleaded guilty to making false statements…In the Government’s assessment, however, he did so without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him”. Unfortunately, there is no “newly discovered” information. As Brad Heath points out that “new” information is merely information about how DOJ employees conducted the investigation that led to his being charged. There is nothing “new” that changes the material fact that Flynn lied about his discussions with Kislyak.
Unfortunately for the DOJ, the Court, in the person of Judge Emmett Sullivan, has already ruled that the lies Flynn told were material. The DOJ acknowledges that only in a footnote, stating, “The Government appreciates that the Court previously deemed Mr. Flynn’s statements sufficiently ‘material’ to the investigation…It did so, however, based on the Government’s prior understanding of the nature of the investigation”. As Heath again notes, the DOJ is asking the judge to reverse his position on materiality essentially because “the government did not previously understand the nature of an investigation carried out by the government”. This is the level of absurdity that the DOJ has reached.
At this point, we may all need a reminder of what Flynn had actually been up to even before the calls with Kislyak. He was a paid foreign agent of Turkey while receiving classified briefings as then-candidate Trump’s NSC advisor. As such a paid foreign agent, he openly advocated for policies advantageous to Turkey before, during, and after the election. He conspired with Turkish officials in an aborted plot to literally kidnap a foreign national residing in the US and deliver him to Turkey. As a retired military officer, he was required to receive permission to travel and receive money from a foreign entity. He violated that criminal sanction by traveling to Russia and receiving over $30,000 to speak at a gala for Putin. He was part of another plan to help Saudi Arabia get nuclear technology by bypassing US sanctions and relying on Russian and Chinese equipment. Flynn was also with Kushner when the latter proposed using Russian communication equipment in order to communicate directly with Putin and bypass the US national security infrastructure. And his lies on his FARA and to the FBI put him in danger of being blackmailed by both the Russians and the Turks while, presumably, protecting Trump. At his first sentencing hearing, Judge Emmett Sullivan told Flynn, “arguably, you sold your country out”, while inquiring of the prosecutors whether Flynn could be charge for treason – (he couldn’t and shouldn’t). While the focus is now primarily on the specific issues with Kislyak, the larger picture is that Flynn had already engaged in multiple crimes and was a national security nightmare.
As part of his plea deal, where Flynn not only acknowledged his lies but also that he knew that lying to the FBI was a crime, Mueller agreed to drop the FARA case against him. I think we can safely assume that Barr and the DOJ will simply hope that case is now forgotten and will not pursue it further as they are entitled to do.
Barr’s decision is, of course, outrageous, but all it does is solidify his position as the most corrupt Attorney General in modern history. The fact that no line prosecutor other than Barr’s hand-picked assistant would sign on to this brief not only shows just how extreme it is but also just how thoroughly Barr has corrupted the DOJ. Barr’s DOJ is primarily focused on making sure that the crimes of the Trump administration go unpunished. That effort also requires the DOJ to ensure Trump gets re-elected so that the statute of limitations on crimes already committed runs out before the end of his next term.
In that regard, Barr’s effort to allow corruption to go unpunished may not have been the worst legal action of the day. The Supreme Court threw out the convictions of two political appointees of then New Jersey Governor Chris Christie in the so-called Bridgegate scandal which snarled traffic in the town of a mayor who had refused to endorse the Governor’s re-election. The unanimous decision ruled that the federal wire fraud statute under which the two had been convicted did not apply because the scheme the two organized did not deprive the mayor of money or property, a critical element of wire fraud. Justice Kagan, writing for the full Court, described the lane-closing scheme as a “regulatory decision about the toll plaza’s use” before determining that a “run-of-the-mine exercise of regulatory power cannot count as the taking of property”.
The unanimous decision in this case indicates that the Court is in agreement that the conviction was obtained by misapplying the law as currently understood and required overturning. But the use of the fraud statute represents not so much the failure of the prosecutors who brought the case but the inadequacy of federal corruption statutes. Kagan also writes, “The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct”. In fact, Congress did pass a law in the late 1980s specifically designed to address the corruption and abuse of power illustrated in the Bridgegate case. As Kagan notes, “Congress responded to that decision by enacting a law barring fraudulent schemes ‘to deprive another of the intangible right of honest services’—regardless of whether the scheme sought to divest the victim of any property…But the vagueness of that language led this Court to adopt ‘a limiting construction,’ confining the statute to schemes involving bribes or kickbacks”.
That “limiting construction” was further narrowed in a 2016 case involving payments to the then Governor of Virginia. In that case, the Governor and his wife were lavished with gifts and loans totaling $175,000 by the head of a nutritional supplement company that was trying to get Virginia’s public universities to study the company’s product with the goal of getting FDA approval. The Governor introduced the head of the company to the state’s health director and held an event at the governor’s mansion for the company attended by many university research scientists. Even so, The Supreme Court ruled that the Governor’s actions were not sufficient to show that he had accepted a bribe. The Court ruled that a specific policy decision or direct pressure on a subordinate to further the interests of the supplement company were required for a criminal conviction.
As Ian Millhiser notes, the Bridgegate case is the mirror image of the Virginia case, and, taken together they create an enormous hole in for corrupt public officials to drive through. Says Millhiser, “In McDonnell [the Virginia case], there were no shortage of corrupt payments from Williams to McDonnell, but McDonnell’s actions were nonetheless legal because he did not perform an ‘official act’ that benefited Williams. In Kelly [the Bridgegate case], by contrast, Christie’s subordinates did perform an official act that impacted thousands of people…But there is no evidence that they were bribed to do so. They appear to have committed this act largely to spite a mayor who did not give Christie something that he wanted. Read together, the cases suggest that state officials have a fair amount of leeway to commit corrupt acts, so long as they don’t accept some sort of bribe and make a policy decision that benefits the person who paid them a bribe…[F]ederal anti-corruption law now has a considerable blind spot. An official may not change policy to benefit someone who pays them a bribe. And they may not use their office to corruptly obtain property for their own use. But there is no federal ban on using their power in office to punish political opponents, or potentially to reward political supporters”.
Millhiser muses about a scenario where the Trump administration makes it “easy for companies to obtain permits if their CEO endorses President Trump, while simultaneously denying permits to companies whose CEO endorsed Democratic presidential candidate and former Vice President Joe Biden”. We actually saw such scenarios with tariff waivers, where political favoritism determined which companies quickly received requested waivers. Under current law, such action would not be considered a federal crime.
During the Senate impeachment trial, constitutional lawyer Pamela Karlan stated, “What would you think if, when your governor asked the federal government for the disaster assistance that Congress has provided, the president responded, ‘I would like you to do us a favor. I’ll meet with you and send the disaster relief once you brand my opponent a criminal,’…Wouldn’t you know in your gut that such a president has abused his office?…That he’d betrayed the national interest, and that he was trying to corrupt the electoral process?” If Trump, rather than asking the governor for the favor, simply denied the aid because polls showed the governor’s state was likely to vote for his opponent, that would currently not be a federal crime. And, again, we have seen a version of this scenario with the distribution of PPE and testing during the current pandemic. Similarly, Millhiser presents another scenario where Trump pressures the DOJ to file a suit against a company he does not like. That too would not currently constitute a federal crime. We only have to look to the DOJ’s opposition to the Time-Warner/AT&T merger, reportedly drive by Trump’s hatred of CNN, to see evidence of this scenario.
Barr may still not succeed in protecting Flynn as the aforementioned Judge Sullivan has to sign off on the abandonment of the case. But there is no doubt that Barr will see the Bridgegate decision as a license for politically motivated prosecutions. As Paul Waldman opines, “And trust me, Trump and Barr are not done yet. With six months to go before the election, it would be utterly shocking if Barr did not do what Trump tried to strong-arm Ukrainian President Volodymyr Zelensky into doing: opening up an ‘investigation’ into former vice president Joe Biden or his family, for no purpose other than creating headlines suggesting the presumptive Democratic nominee is as corrupt as Trump himself”. Aaron Rupar goes even further, declaring “there’s a decent chance show trial-style charges are brought against Barack Obama before November”.
In her opinion, Justice Kagan wrote, “The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify”. That seems like an overt admission of the inadequacy of federal corruption law, largely created by the rulings of the conservative Supreme Court over the years. The Trump administration may be the most corrupt administration we have seen in century or more, but apparently much of that corruption, as brazen and abusive as it is, may not be criminal. As Kagan notes, the only effective solution currently available lies at the ballot box.