Was Bill Barr Allowed to Intervene in the Flynn Case?

By intervening in the prosecution of Michael Flynn, the attorney general may have violated conflict-of-interest regulations.
May 14, 2020
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U.S. Attorney General William Barr delivers remarks during the Criminal Coordination Conference at the Securities and Exchange Commission October 03, 2019 (Photo by Chip Somodevilla/Getty Images)

President Trump and Attorney General Bill Barr have decided to jump into the middle of the criminal case against General Michael Flynn – a case that grew out of an ill-advised phone call between Flynn and the Russian Ambassador Sergey Kislyak – and dismiss the charge that he lied to the FBI even though he has already pled guilty. Twice.

There’s quite a lot wrong with this, including dubious logic. Consider this extraordinary statement from the government’s filing: “Whether or not Mr. Flynn had been entirely candid with the future Vice President or Press Secretary did not create a predicate for believing he had committed a crime or was beholden to a foreign power.”

That is, of course, complete nonsense. Having contact with a foreign government official and then lying about it to your superiors is probably the single biggest counterintelligence red flag there is. When Flynn – the incoming national security advisor – lied to the vice president-elect about his contacts with the Russian ambassador, he was immediately compromised because, of course, the Russians knew he had lied, while his boss, President-elect Trump, did not. The FBI had every reason to be concerned and even the acting attorney general, Sally Yates, thought this had created “a compromise situation for Flynn.”

But the biggest problem with the government’s volte face is this: Why was the Attorney General involved in Flynn’s case at all when he had a disabling conflict of interest?

Barr made it clear that he was the driving force behind dismissing the case against Flynn and that it was done at his direction. But this wasn’t entirely Barr’s idea. His boss, President Trump, has been demanding Flynn’s exoneration for more than two years. Those demands have reached a crescendo in recent weeks.

The Department of Justice, however, has rules about conflicts of interest. Barr’s predecessor as attorney general, Jeff Sessions, fell from President Trump’s good graces by recognizing he had a conflict of interest and recusing himself from what became the Mueller Investigation. So it’s not surprising that Barr was hesitant to remove himself from the Flynn case—but that doesn’t make it right.

These regulations prevent Justice Department employees from participating in a case if they have a political relationship with “any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.” If there is even the appearance of a conflict that is “likely to affect the public perception of the integrity of the investigation or prosecution,” that employee must be recused.

But President Trump – Bill Barr’s boss – has made the alleged unfairness of the Flynn prosecution one of his campaign issues and part of his attack on the “witch hunt” Mueller Investigation. In fact, Trump won’t shut up about Flynn. He’s even said he might bring him back into the administration once his name has been cleared. So there is no question that the President has a “specific and substantial interest” in seeing the charges dismissed, if only to save him the political embarrassment of issuing a pardon.

In short, Bill Barr had no business at all deciding that the charges against Flynn should be dropped. He had a gross and obvious conflict of interest. Even if he had sought the advice of an ethics official – and there is no evidence that he did – it would have been impossible, under Justice Department regulations, for him to ethically involve himself in the decision to drop the Flynn case.

Barr’s defense to all this is that he’s not doing President Trump’s bidding. “I’m doing the law’s bidding,” he explained. “I’m doing my duty under the law, as I see it.” But that’s irrelevant. It doesn’t matter how sincere Barr was when he acted if DOJ regulations barred from acting in the first place.

Of course, Flynn’s lawyers aren’t going to object to the government’s motion to drop the case. But Judge Sullivan doesn’t have to rubber-stamp the dismissal. He can and should order Barr to come into his courtroom and answers his questions, both about the reasons for the government’s decision and about Barr’s conflict of interest. If Judge Sullivan decides that Barr did violate Justice Department regulations and should have recused himself, then he should deny the government’s motion and consider referring the matter to the Virginia State bar for possible discipline.

And this isn’t an empty threat. Lawyers are, first and foremost, officers of the court (that’s what makes them lawyers) and are subject to discipline by the supreme court of the jurisdiction in which they are registered to practice. And this applies to all lawyers, no matter how lofty. On Monday, for example, the Supreme Court of Indiana suspended the sitting Indiana attorney general’s law license for 30 days because of a finding of misconduct.

Judge Sullivan certainly has something in mind. He plans on taking the apparently unprecedented step of inviting amicus briefs on the government’s motion to dismiss the case. He’s also appointed a retired federal judge, John Gleeson, as an amicus curiae tasked both with opposing the government’s motion to dismiss and determining whether Flynn should be held in contempt of court for perjury. That’s a reasonable question since Flynn admitted the facts underlying his guilty plea under oath on two different occasions. If the attorney general thought he was making the Flynn case go away, he definitely miscalculated.

Maybe Bill Barr is as honest and forthright as he claims. But President Trump’s incessant demands to free Flynn have attached an indelible stink to Barr’s actions that can never be removed. They make the Department of Justice appear to be a political tool and an arm of Trump’s 2020 campaign. Judge Sullivan apparently has some questions about that. And I wouldn’t want to be Bill Barr if the judge doesn’t like the answers.

Chris Truax

Chris Truax is an appellate lawyer in San Diego and the CEO of CertifiedVoter.com, the first system designed to deter foreign interference in American social media.