Storm builds around Barr over dropping of Flynn case

Democrats and other critics are seizing on the Department of Justice’s (DOJ) decision to drop the case against former national security adviser Michael Flynn, arguing it shows how heavily politicized it has become under Attorney General William Barr.

Anger over the extraordinary move by Justice to drop charges even after it secured a guilty plea has created a new political storm around Barr, who had previously angered Democrats for his handling of former special counsel Robert Mueller’s investigation.

The latest surprise move approved by Barr makes him even more of a political lightning rod figure in Washington.

“Attorney General Barr’s politicization of justice knows no bounds,” Speaker Nancy Pelosi (D-Calif.) said in a statement Thursday evening.

Critics see the abrupt reversal in the Flynn case as a fresh example of Barr’s willingness to bend the Justice’s norms to appease Trump, who had criticized the case against his former national security adviser during the Mueller probe.

“Overruling the special counsel is without precedent and without respect for the rule of law,” Pelosi said in remarks echoed by other Democrats.

Trump, for his part, hailed the decision and called Barr “a man of unbelievable credibility and courage.”

Flynn pleaded guilty in 2017 to lying to federal agents about conversations he’d had with a Russian diplomat during the presidential transition. But earlier this year he moved to withdraw his plea, claiming that his case had been tainted by “the government’s bad faith, vindictiveness, and breach of the plea agreement.” 

Newly uncovered FBI documents providing a behind-the-scenes look at how his prosecution had unfolded angered conservatives, and bolstered the case that he was unfairly prosecuted, according to Trump and Flynn’s allies.

But it was stunning to many that Justice would drop its charges against Flynn.

In a court filing, DOJ lawyers argued the new documents showed that agents mishandled the probe and had private misgivings about whether Flynn had in fact lied during his interview. 

Barr called the dismissal “an easy decision.”

“I wanted to make sure that we restore confidence in the system,” he told CBS News on Thursday. “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.” 

Barr has maintained that Trump does not influence his decisions as attorney general, but critics are skeptical.

Eyebrows were raised when career prosecutor Brandon Van Grack, who had helped secure Flynn’s plea agreement, abruptly withdrew from the case less than an hour before the charges were dropped. He reportedly also withdrew from other cases, but has not resigned.

It quickly drew comparisons to the decision by prosecutors handling the case against Trump’s political ally Roger Stone to withdraw from that case, after top DOJ officials overruled career prosecutors and sought a lighter sentence against Stone.

“I think we lost 50 years worth of ground in solidifying the independence of the Justice Department after Watergate,” House Intelligence Committee Chairman Adam Schiff (D-Calif.) said Thursday night on MSNBC. “The common denominator between these two cases — Roger Stone and Mike Flynn — is this: Both men lied on behalf of the president.”

Former federal prosecutors broadly criticized the decision to drop the case against Flynn, who had pleaded guilty to lying to investigators over his contacts with Russian officials.

Elie Honig, a legal analyst and former federal prosecutor in New York who has been critical of Barr, said Justice was wrong to say the FBI’s interview with Flynn was unjustified. He argued the bureau had “ample basis” to talk to Flynn given the intelligence they had on him communicating with the Russia’s ambassador.

He also disputed the assertion that the documents released last week showed Flynn was the victim of prosecutorial misconduct, saying the notes showed what would be routine discussion among agents about an interview.

“If you’re not strategizing that way, you’re not doing your job,” Honig said. “There’s nothing scandalous about it.”

Critics of Barr zeroed in on Trump’s public comments of pardoning Flynn, saying Barr essentially took that step for him.

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) vowed to ask the department’s Inspector General to investigate the matter and called on Barr to testify about his Flynn decision as soon as possible

But it’s unclear when that will happen. A hearing with the attorney general was postponed during the coronavirus pandemic, and the House has no immediate plans to return to the Capitol.

It’s also unclear what steps Democrats could really take to check Barr’s actions. While Democrats could seek to hold Barr in contempt if he refuses to comply with their requests, there has been mixed success with this path in the past.

During the Obama administration, the House cited Attorney General Eric Holder for contempt over his failure to provide documents related to the Justice Department’s botched handling of the “Fast and Furious” gun-tracking operation. Shortly thereafter, the White House and the DOJ said they would not pursue criminal charges against Holder under the contempt of Congress citation.

The House, then led by Republicans, filed a lawsuit that led to a years-long court battle for the records that President Barack Obama had asserted executive privilege on, ultimately resolving last year in which both sides struck a deal and agreed to abandon their appeals.

The act of formally dismissing Flynn’s criminal case now falls to U.S. District Judge Emmet Sullivan, a Clinton appointee who has presided over the federal proceedings since late 2017.

Legal analysts say the judge has several likely options: He could grant the DOJ’s motion to dismiss with little fanfare, or give it more extensive treatment with a written opinion or hearing. 

However, if Sullivan were to issue an unorthodox ruling, it would not be his first. In 2009, the judge dismissed an ethics conviction against former Sen. Ted Stevens (R-Alaska) and appointed a special counsel to investigate prosecutorial misconduct.

Morgan Chalfant contributed.