For a moment, the furor around Attorney General William Barr had begun to die down.
That ended Thursday.
With his decision to abandon the prosecution of President Donald Trump’s former national security adviser Michael Flynn, Barr reignited accusations that he has spent his year-plus as head of the Justice Department working to dismantle and discredit special counsel Robert Mueller’s probe, injecting Trump-friendly political considerations into criminal case decisions along the way.
It was a charge that had temporarily receded from the headlines as the coronavirus raced around the globe, pushing aside concerns that had exploded in February when Barr intervened to water down a sentencing recommendation in another high-profile Mueller case: Roger Stone. The move rattled the department — four Stone prosecutors quit the case and one left government altogether — while the president cheered on Barr. The situation deteriorated so quickly that Barr publicly urged Trump to stop commenting on DOJ cases, even issuing what sounded like a veiled threat to resign if he didn’t.
Thursday brought those tensions roaring back into the headlines. Barr had, once again, stepped into a Mueller case on behalf of a close Trump ally. Once again, the lead prosecutor quit the case instead of going along with Barr’s decision. Once again, Justice Department officials were exasperated and disheartened.
For many within the department, it was another day that fueled the view the president’s friends and supporters were winning favors unavailable to the vast majority of criminal defendants. Already, Barr had faced blowback over his summary of Mueller’s findings before the special counsel’s report was released. Later, Barr weathered criticism for his decision to launch a wide-ranging probe into the origins of the election-year probe of Trump and his aides. Each step, the attorney general’s detractors argue, undercut the department’s independence and bolstered suspicions that DOJ leadership is simply catering to Trump’s desires.
Barr insisted Thursday night that he was not dragging politics into his decisions, suggesting the real bias at work was against Flynn, who had pleaded guilty in 2017 to lying to FBI agents in an interview about his conversations with the Russian ambassador.
“I want to make sure that we restore confidence in the system. There’s only one standard of justice,” Barr
. “It’s sad that nowadays these partisan feelings are so strong that people have lost any sense of justice.”
CBS NEWS EXCLUSIVE: AG Bill Barr says it was his “duty” to drop charges against former national security adviser Michael Flynn, who pleaded guilty in Dec. 2017 to lying to the FBI about his discussions with the Russian ambassador after the 2016 election.— CBS Evening News (@CBSEveningNews) May 7, 2020
@CBS_Herridge reports pic.twitter.com/1Pk1b8qofW
Asked if he was doing Trump’s bidding, Barr said: “I’m doing the law’s bidding.”
The proclamation rang hollow to numerous Justice Department employees.
“There seems to be a different set of rules for political appointees,” said one longtime DOJ official, who spoke on condition of anonymity. “I was surprised. I didn’t think it would end like this — and this quickly.”
The official said Barr’s move was another signal to career officials that their work could be readily upended for political reasons. “It’s more demoralizing than anything else,” the DOJ official said.
One Justice Department lawyer added: “It's deeply disheartening to see politics infect Justice. It's everywhere now under Barr."
While officials predicted more departures at DOJ, the overt signs of protest from within the department Thursday were relatively mild.
While the longtime prosecutor on the Flynn case, Brandon L. Van Grack, withdrew shortly before the government moved to dismiss the case, department officials said Van Grack would remain in his post overseeing foreign-agent cases.
The other line prosecutor handling the Flynn case in recent months, Jocelyn Ballentine, appeared to have declined to sign the 20-page pleading explaining why DOJ was seeking to drop the prosecution.
Some lamented that there was not already a more dramatic response to Barr’s actions.
“This moment represents the full collapse of an apolitical Justice Department. An astonishing assault on the rule of law and in a functional DOJ it would prompt mass resignation,” former intelligence community lawyer Susan Hennessey wrote on Twitter.
While current Justice officials appeared publicly mum, former officials were blunt about their views.
Former FBI Deputy Director Andrew McCabe, who arranged the critical interview with Flynn in January 2017, ridiculed Barr’s conclusion that there was no valid basis to talk to the then-national security adviser about his contacts during the transition with Russian Ambassador Sergey Kislyak.
“The Department's position that the FBI had no reason to interview Mr. Flynn pursuant to its counterintelligence investigation is patently false, and ignores the considerable national security risk his contacts raised,” McCabe said in a statement. “Today’s move by the Justice Department has nothing to do with the facts or the law — it is pure politics designed to please the president."
Not all Justice Department veterans were critical of Barr’s action. Former prosecutor Sol Wisenberg said the attorney general was correct to conclude that Flynn’s interview was not part of any legitimate inquiry.sonos sonos One (Gen 2) - Voice Controlled Smart Speaker with Amazon Alexa Built-in - Black read more
“This is certainly part of the Mueller investigation that needs undoing,” Wisenberg wrote on Twitter.
However, some attorneys warned that Barr’s conclusion the FBI had no valid reason to interview Flynn in January 2017 would lead to a flood of second-guessing in future false-statement cases, effectively making them more difficult for prosecutors.
Barbara McQuade, a U.S. Attorney in Michigan under President Barack Obama, called the DOJ argument “tortured,” arguing it “will come back to bite prosecutors forevermore.”
Acts of prosecutorial leniency towards high-profile defendants have plagued the Justice Department before.
In 2015, prosecutors agreed to a misdemeanor plea deal with former CIA Director David Petraeus to resolve allegations that he shared highly classified information with his girlfriend. Petraeus got no jail time and paid a $100,000 fine. Defense attorneys in similar cases now routinely cite the lax treatment as grounds for similar treatment for their clients. Judges often marvel at the earlier outcome.
Prior to Thursday’s action, Barr’s credibility was already bruised within the department.
Following the Stone episode in February, the attorney general declared Trump’s comments about DOJ cases was making his job “impossible.” Trump dismissed the criticism, and Barr made no public response.
The president has kept up his commentary since then. Just last week, Trump tweeted more than 20 times about the Flynn case and discussed it publicly. Barr didn’t offer any public response.
While Barr suggested in his CBS interview Thursday that it’s time for partisans to bury the hatchet, there were numerous indications that the recriminations surrounding the Mueller probe are likely to continue for some time.
For one thing, Barr is still pressing a criminal investigation led by U.S. Attorney for Connecticut John Durham into aspects of the Russia investigation. Officials had hoped to be able to announce some developments in that probe in the coming months, but the ongoing pandemic has disrupted almost all investigations and prosecutions.
All eyes will also now turn to the Stone case to see whether the longtime Trump adviser ever serves a day of the three-plus-year sentence a judge imposed in February following a jury trial last year. Stone has appealed his seven felony convictions and sentence, and the coronavirus has injected doubt around when he might report to prison. Trump could step in with a pardon or commutation for Stone if his imprisonment seems imminent.
Democratic lawmakers are already demanding information about Barr’s decision on Flynn, with House Judiciary Chairman Jerry Nadler vowing to request a DOJ watchdog investigation and call Barr to testify.
Conversely, Republicans are pressing for more disclosures about aspects of the Russia probe they believe were mishandled.
Meanwhile, Barr’s submission to the court may not be the last word on Flynn’s case. U.S. District Court Judge Emmet Sullivan will have to decide whether to actually dismiss it and he may rake prosecutors over the coals before doing so, especially if he detects politics at work.
“Sullivan will likely grant the motion, but he could require a hearing first to make a DOJ lawyer say this nonsense out loud,” McQuade said.
Opponents of Barr’s decision said his conclusion that the case was “frail” seemed at odds with the fact that Flynn admitted twice under oath that he had, in fact, lied to the FBI.
They also noted that Flynn — highly educated and a decorated military officer — was represented by top-flight defense attorneys and questioned extensively about the voluntariness of his plea by two different federal judges.
While Barr’s move took the immediate pressure off Trump to issue a pardon to Flynn, Trump may still find himself taking action to prevent Flynn from being prosecuted in the future. Flynn’s statements to judges affirming he did lie to the FBI were made under oath, so they could still lead to a perjury charge.
Barr’s Justice Department seems unlikely to file such a charge, but if Trump loses in November, charges from a new attorney general can’t be ruled out.
Betsy Woodruff Swan contributed to this report.
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