The term “in the interests of justice” is difficult to define precisely. Prosecutors, attorneys, and judges all have a different perspective of what serves the interests of justice.
On May 7, 2020, U.S. Attorney General William Barr invoked the “interests of justice” when his Justice Department , filed a motion in the U.S. District Court for the District of Columbia to dismiss the prosecution against retired U.S. Army lieutenant general and former National Security Advisor Michael T. Flynn. The background facts in the Flynn case are these:
In August 2016, the FBI undertook an investigation code-named “Crossfire Razor” to determine whether Flynn “was directed and controlled by and/or coordinated activities with the Russian Federation in a manner which is a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act … or other related statutes.”
In other words, the FBI wanted to determine if Flynn was a Russian asset as part of the agency’s larger Crossfire Hurricane “investigation into the presidential campaign of Donald J. Trump and its possible coordination with Russian officials to interfere with the 2016 presidential election.”
Flynn Cozies Up to Russians
There was reason to suspect Flynn for being a Russian asset. He had been dismissed as head of the Defense Intelligence Agency in 2014 by President Barak Obama because of “mismanagement and temperament issues.” The following year Flynn was sitting at a dinner table with Russian President Vladimir Putin in a Moscow hotel where a laundry list of Russian luminaries had gathered to toast the 10th anniversary of the RT television network. For his appearance, the former general was paid $50,000 to sing RT’s praises, which is a government-funded television network that has been accused of disseminating anti-American propaganda. Flynn ultimately failed to disclose this payment on his financial disclosure form, which he signed in February 2017, as he was required by law to do to become National Security Advisor.
By late fall of 2016 and after Trump had secured the presidential election, the FBI’s Crossfire Razor investigation had failed to turn up any “derogatory information” about Flynn’s sweetheart relationship with the Russian Federation. As the agency was preparing to close its investigation, FBI agents learned about communications Flynn, who was then designated as Trump’s National Security advisor, had with Russian Ambassador Serjey Kislyak in late December 2016.
The Flynn/Kislyak phone calls were troubling to the FBI because it had just completed a counterintelligence investigation into Flynn’s unusual relationship with the Russian Federation and the phone calls posed a potential Logan Act violation—unauthorized communications by a private U.S. citizen (which Flynn still was in December 2016) with a foreign government about any dispute that might exist between the two governments.
Flynn Lied to FBI
On January 12, 2017, the Washington Post broke the story about the Flynn/Kislyak conversations dealing with sanctions the Obama administration to put on Russia. Three days later, Vice-President-elect Mike Pence informed the public that Flynn did not discuss sanctions with Kislyak.
Unfortunately, contrary to the Pence announcement, the FBI had recordings revealing that Flynn had discussed the sanctions issue. That prompted the FBI to interview Flynn on January 24, 2017, during which agents asked the new National Security Advisor about two conversations he had with Kislyak in December 2016: a December 26 call having to do with the Obama sanctions and a December 22 call about a foreign relations issue involving Israel. Flynn denied he had discussed either issue with Kislyak in those two calls.
On February 9, 2017, the Washington Post reported again that Flynn had indeed discussed the sanctions issue with Kislyak. These public media disclosures prompted Flynn to resign as National Security Advisor on February 13, 2017.
Flynn Pleads Guilty Twice in Federal Court
On December 1, 2017, Flynn pled guilty to one count of lying to FBI agents during his January 24 interview. Flynn reaffirmed that guilty plea in open court on December 16, 2019. As part of his agreement, Flynn agreed to cooperate with the government.
Trump has been a strong and vocal critic not only of FBI’s Crossfire Hurricane investigation into Russian assistance in his 2016 presidential election. However, the President has been an unusually fiery and infamed over the Flynn component of the investigation.
Trump has consistently pressured Attorney General Barr to investigate the FBI’s handling of the Crossfire Hurricane investigation. Barr has more than willingly acquiesced to this political pressure. And with the decision to dismiss the prosecution against Michael Flynn at the President’s behest, the Attorney General has signaled to everyone concerned that he will hunt down and prosecute the President’s political enemies who dare oppose or expose the President. On the contrary, any ally of the President is now presumptively immune from criminal liability.
AG Barr Says It Was Another Easy Decision
Attorney General Barr’s perversion of the historical notions about the “rule of law” and the “interests of justice” has prompted more than 2,000 former federal prosecutors to demand his resignation. Yet Barr told CBS News that he found it easy to dismiss the prosecution of Flynn.
“I wanted to make sure that we restore confidence in the system,” he told the network news outlet. “There’s only one standard of justice. And I believe that this case, that justice in this case requires dismissing the charges against General Flynn.”
One Standard of Justice
For the attorney general, there is only “one standard of justice”—the one President Trump orders him to pursue.
In his 2012 book America’s Unwritten Constitution, Yale University law professor Ahkil Reed Amar offered this broad view of the interests of justice:
“Here is one way to connect the dots: In sharp contrast to America’s most disgraced cases, which protected haves at the expense of have nots, and insiders at the expense of outsiders, most of our icons of positive national identity have championed equality and reflected abiding concern for those at the bottom of the status hierarchy. . . . In this pattern resides a powerful lesson for how America’s unwritten Constitution is best interpreted and enforced – namely, to reinforce rather than to undercut the great themes of equality and inclusion in America’s written Constitution.”
There have been literally thousands of cases prosecuted by the Justice Department that involve prosecutorial misconduct, prosecutorial over-charging to coerce guilty pleas, federal law enforcement misconduct (some of it borderline criminal), and gross sentencing disparities—all of which demand motions to dismiss by the Justice Department. In fact, while Barr is dismissing the prosecution of Russian ally and President Trump’s personal friend, Michael Flynn, his Department is opposing motions to release inmates during the Covid-19 pandemic crisis.
All of this proves that Barr’s “one standard of justice” given to him by President Trump applies only to criminal offenders like Michael Flynn—those who commit crimes for or at the behest of the President.