In December 2016, President Obama announced punishing economic sanctions against Russia in retaliation for its email thefts and other actions taken to help elect Donald Trump. The purpose of the sanctions was to let Russia know that its election operation, which had been undertaken with Trump’s encouragement, would not be rewarded.
Michael Flynn, Trump’s incoming national security adviser, wanted to send a very different message to the Russians. In a secret conversation with Russian ambassador Sergey Kislyak, Flynn reassured the Russian that the incoming administration would steer U.S.-Russia relations in a different direction. Obama was trying to punish Russia for its act, and Flynn was trying to undermine the punishment. (Weeks later, Congress would vote to lock in sanctions by a veto-proof margin, enraging Trump and prompting him to try, futilely, to undo them.)
At the time, Flynn’s secret conservation with Kislyak was closely related to the FBI’s ongoing investigation into illicit contacts between the Trump campaign and Moscow. Flynn falsely told a pair of FBI agents that he and Kislyak had not discussed sanctions. His motive to lie was obvious: The sanctions threatened to deny Russia the payment it had been sniffing around Trump’s campaign for. Two years later, he confessed in court to having committed perjury.
Now that the special counsel that prosecuted Flynn is gone, and the Department of Justice now in the hands of Trump loyalist William Barr, the department has abandoned its own prosecution. The rationale for forgiving Flynn’s lies is that the FBI had no reason to talk to Flynn in the first place. Even if this objection were valid — and there is much more to say about this, because it cuts to the heart of the issue — it would hardly justify the extraordinary favor Flynn received from the Justice Department yesterday. FBI agents interview people all the time. People often get convicted if they lie.
It is vanishingly rare, perhaps completely unprecedented, for the Department of Justice to turn around and withdraw its charges against a confessed perjurer. “A range of former prosecutors struggled to point to any previous instance in which the Justice Department had abandoned its own case after obtaining a guilty plea,” reports the New York Times. The defense of Flynn essentially granted him extraordinary leniency that almost no ordinary criminal defendant in the United States would receive.
But even this defense, which presumes that Flynn had been charged for illegitimate reasons, does not hold up. Flynn was under investigation in the first place because the FBI was investigating the Trump campaign’s covert ties between the Trump campaign and Russia. Barr claims that the FBI “did not have a basis for a counterintelligence investigation against Flynn at that stage.”
But the basis for the investigation is obvious. Flynn had previously been paid tens of thousands of dollars by Russia, was now holding covert discussions with the country that had helped his campaign win the election, and was at the time of the interview publicly lying to the public and other members of the Trump administration about the call — a lie that exposed him to Russian blackmail. Even if we assume Flynn’s behavior was impeccable, he was at minimum a very material witness to the investigation, having been a member of the campaign and privy to many of its communications relating to Russia. Of course the FBI had a basis for interviewing Flynn.
If Mueller’s treatment of Flynn shows anything, it is not the overzealousness of the prosecution, but the difficulty of proving in court the misdeeds of a presidential ally. Prosecutors allowed Flynn to escape charges for concealing hundreds of thousands of dollars in payments to advise Turkey, which he received at the same time he was serving as Trump’s foreign policy adviser, and for which two of his partners were charged. During the campaign, Flynn apparently assigned a Republican operative to obtain stolen Clinton emails, but the scheme failed and the operative died (perhaps allowing Flynn to escape prosecution as an accessory to the crime).
In the end, of course, Mueller’s probe was unable to establish a criminal conspiracy between the Trump campaign and Russia. An important factor in this failure was Trump’s ability to dangle pardons to the key lieutenants who might have had the ability to incriminate him — Flynn, along with Roger Stone and Paul Manafort. In 2017, Trump sent a message to Flynn to “stay strong.” Flynn’s loyalty has now been rewarded.
Barr’s approach toward the Mueller investigation has been to turn the presumption of guilt upside down. Having failed to establish to the high standards of a court that Trump engaged in a criminal conspiracy, Barr has publicly misrepresented the Mueller report as vindication, distorting its contents to the point that even its taciturn author protested. Half the report consisted of massive evidence of Trump obstructing the investigation — but rather than use this evidence to cast doubt on Trump’s innocence, as one would intuitively do when the subject of a criminal probe acts like they have something to hide, Barr concluded that it was unfair to accuse him of obstruction at all, since prosecutors failed to prove the case Trump was obstructing.
He is now slowly working backward from this twisted conclusion. He has selected outside prosecutors to go back through the Mueller investigation, investigating the investigators and setting the criminals free. As Barr revealingly told CBS when asked how history would view his decision, “History is written by the winners.” He is rewriting the history of the Mueller probe, recasting the crooks and low-lives who sought out and benefited from the illegal intervention of a dictator as its heroes.
On the same day as the Justice Department’s extraordinary announcement, Trump held yet another phone call with Vladimir Putin. Trump told reporters he discussed the “hoax” with the Russian president. “I said, ‘You know, it’s a very appropriate time, because things are falling out now and coming in line … and I wouldn’t be surprised if you see a lot of things happen over the next number of weeks.’”
If anybody could intuitively grasp Trump’s ambition for how a justice system should operate, it is Putin. Trump has spent months making such promises of vindication for his friends and retribution against anybody who helped investigate them. Unlike many of his boasts, these seem not to be empty. In Barr he has found an operator who is capable of bringing his debased vision of justice to life.