Part I: Political corruption and cronyism at DOJ by William Barr

Mary McCord, former acting assistant attorney general for national security at the Justice Department from 2016 to 2017, in a recent op-ed in the New York Times wrote, Bill Barr Twisted My Words in Dropping the Flynn Case. Here’s the Truth.

At the direction of Attorney General Bill Barr, the Justice Department last week moved to dismiss a false-statements charge against Michael Flynn, President Trump’s former national security adviser. The reason stated was that the continued prosecution “would not serve the interests of justice.”

The motion was signed by Timothy Shea, a longtime trusted adviser of Mr. Barr and, since January, the acting U.S. attorney in Washington. In attempting to support its argument, the motion cites more than 25 times the F.B.I.’s report of an interview with me in July 2017, two months after I left a decades-long career at the department (under administrations of both parties) that culminated in my role as the acting assistant attorney general for national security.

That report, commonly referred to as a “302,” is an interesting read. It vividly describes disagreements between leadership of the Justice Department and the F.B.I. about how to handle the information we had learned about Mr. Flynn’s calls with the Russian ambassador Sergey Kislyak and, more specifically, Mr. Flynn’s apparent lies about those calls to incoming Vice President Mike Pence.

But the report of my interview is no support for Mr. Barr’s dismissal of the Flynn case. It does not suggest that the F.B.I. had no counterintelligence reason for investigating Mr. Flynn. It does not suggest that the F.B.I.’s interview of Mr. Flynn — which led to the false-statements charge — was unlawful or unjustified. It does not support that Mr. Flynn’s false statements were not material. And it does not support the Justice Department’s assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, “would not serve the interests of justice.”

I can explain why, relying entirely on documents the government has filed in court or released publicly.

Notably, Mr. Barr’s motion to dismiss does not argue that the F.B.I. violated the Constitution or statutory law when agents interviewed Mr. Flynn about his calls with Mr. Kislyak. It doesn’t claim that they violated his Fifth Amendment rights by coercively questioning him when he wasn’t free to leave. Nor does the motion claim that the interview was the fruit of a search or seizure that violated the Fourth Amendment. Any of these might have justified moving to dismiss the case. But by the government’s own account, the interview with Mr. Flynn was voluntary, arranged in advance and took place in Mr. Flynn’s own office.

Without constitutional or statutory violations grounding its motion, the Barr-Shea motion makes a contorted argument that Mr. Flynn’s false statements and omissions to the F.B.I. were not “material” to any matter under investigation. Materiality is an essential element that the government must establish to prove a false-statements offense. If the falsehoods aren’t material, there’s no crime.

The department concocts its materiality theory by arguing that the F.B.I. should not have been investigating Mr. Flynn at the time they interviewed him. The Justice Department notes that the F.B.I. had opened a counterintelligence investigation of Mr. Flynn in 2016 as part of a larger investigation into possible coordination between the Trump campaign and Russian efforts to interfere with the presidential election. And the department notes that the F.B.I. had intended to close the investigation of Mr. Flynn in early January 2017 until it learned of the conversations between Mr. Flynn and Mr. Kislyak around the same time.

Discounting the broader investigation and the possibility of Russian direction or control over Mr. Flynn, the department’s motion myopically homes in on the calls alone, and because it views those calls as “entirely appropriate,” it concludes the investigation should not have been extended and the interview should not have taken place.

The account of my interview in 2017 doesn’t help the department support this conclusion, and it is disingenuous for the department to twist my words to suggest that it does. What the account of my interview describes is a difference of opinion about what to do with the information that Mr. Flynn apparently had lied to the incoming vice president, Mr. Pence, and others in the incoming administration about whether he had discussed the Obama administration’s sanctions against Russia in his calls with Mr. Kislyak. Those apparent lies prompted Mr. Pence and others to convey inaccurate statements about the nature of the conversations in public news conferences and interviews.

Why was that so important? Because the Russians would have known what Mr. Flynn and Mr. Kislyak discussed. They would have known that, despite Mr. Pence’s and others’ denials, Mr. Flynn had in fact asked Russia not to escalate its response to the sanctions. Mr. Pence’s denial of this on national television, and his attribution of the denial to Mr. Flynn, put Mr. Flynn in a potentially compromised situation that the Russians could use against him.

The potential for blackmail of Mr. Flynn by the Russians is what the former Justice Department leadership, including me, thought needed to be conveyed to the incoming White House. After all, Mr. Flynn was set to become the national security adviser, and it was untenable that Russia — which the intelligence community had just assessed had sought to interfere in the U.S. presidential election — might have leverage over him.

This is where the F.B.I. disagreed with the Justice Department’s preferred approach. The F.B.I. wasn’t ready to reveal this information to the incoming administration right away, preferring to keep investigating, not only as part of its counterintelligence investigation but also possibly as a criminal investigation. Although several of us at Justice thought the likelihood of a criminal prosecution under the Logan Act was quite low (the act prohibits unauthorized communications with foreign governments to influence their conduct in relation to disputes with the United States), we certainly agreed that there was a counterintelligence threat.

That’s exactly why we wanted to alert the incoming administration. Ultimately, after our dispute over such notification continued through the inauguration and into the start of the Trump administration, the F.B.I. — without consulting the Justice Department — arranged to interview Mr. Flynn. By the time Justice Department leadership found out, agents were en route to the interview in Mr. Flynn’s office.

The account of my July 2017 interview describes my department’s frustration with the F.B.I.’s conduct, sometimes using colorful adjectives like “flabbergasted” to describe our reactions. We weren’t necessarily opposed to an interview — our focus had been on notification — but any such interview should have been coordinated with the Justice Department. There were protocols for engaging with White House officials and protocols for interviews, and this was, of course, a sensitive situation. We objected to the rogueness of the decision by the F.B.I. director, Jim Comey, made without notice or opportunity to weigh in.

lThe Barr-Shea motion to dismiss refers to my descriptions of the F.B.I.’s justification for not wanting to notify the new administration about the potential Flynn compromise as “vacillating from the potential compromise of a ‘counterintelligence’ investigation to the protection of a purported ‘criminal’ investigation.” But that “vacillation” has no bearing on whether the F.B.I. was justified in engaging in a voluntary interview with Mr. Flynn. It has no bearing on whether Mr. Flynn’s lies to the F.B.I. were material to its investigation into any links or coordination between Mr. Trump’s presidential campaign and Russia’s efforts to interfere in the 2016 election.

And perhaps more significant, it has no bearing on whether Mr. Flynn’s lies to the F.B.I. were material to the clear counterintelligence threat posed by the susceptible position Mr. Flynn put himself in when he told Mr. Pence and others in the new administration that he had not discussed the sanctions with Mr. Kislyak. The materiality is obvious.

In short, the report of my interview does not anywhere suggest that the F.B.I.’s interview of Mr. Flynn was unconstitutional, unlawful or not “tethered” to any legitimate counterintelligence purpose.

Jonathan Kravis, a former federal prosecutor in an op-ed at the Washington Post wrote, I left the Justice Department after it made a disastrous mistake. It just happened again.

Three months ago, I resigned from the Justice Department after 10 years as a career prosecutor. I left a job I loved because I believed the department had abandoned its responsibility to do justice in one of my cases, United States v. Roger Stone. At the time, I thought that the handling of the Stone case, with senior officials intervening to recommend a lower sentence for a longtime ally of President Trump, was a disastrous mistake that the department would not make again.

I was wrong.

Last week, the department again put political patronage ahead of its commitment to the rule of law, filing a motion to dismiss the case against former national security adviser Michael Flynn — notwithstanding Flynn’s sworn guilty plea and a ruling by the court that the plea was sound.

Since my resignation, I have not commented on the Stone sentencing; it is not easy for me to do so now.

Prosecutors are trained to make their cases in the courtroom and let the results speak for themselves.

But I feel compelled to write because I believe that the department’s handling of these matters is profoundly misguided, because my colleagues who still serve the department are duty-bound to remain silent and because I am convinced that the department’s conduct in the Stone and Flynn cases will do lasting damage to the institution.

First, Roger Stone. He was tried and convicted of obstruction of Congress, false statements and witness tampering, based on evidence that he had lied repeatedly to a congressional committee investigating Russian interference in the 2016 election, and then threatened a witness who could have exposed those lies.

In February, the Justice Department filed a sentencing memorandum, signed by all four prosecutors in the case, recommending a sentence of seven to nine years, within the range set by the U.S. sentencing guidelines. In my experience, the Justice Department staunchly defends sentences within the guidelines range, particularly for defendants (such as Stone) who are convicted at trial, and especially for defendants (such as Stone) who repeatedly demonstrate disrespect for the judicial system.

The next morning, the president posted a tweet criticizing the sentencing recommendation as a “miscarriage of justice.” Later that day, the Justice Department submitted a revised memo revoking the original recommendation and proposing that Stone receive a much shorter sentence. All four career prosecutors who had tried Stone withdrew from the case. I resigned because I was not willing to serve a department that would so easily abdicate its responsibility to dispense impartial justice.

Last week came an equally appalling chapter: the department’s motion to drop the Flynn case. Flynn pleaded guilty to the crime of making false statements in connection with lies he told in an FBI interview about his contacts with the Russian ambassador. Flynn twice admitted under oath that he had committed this crime, and the trial judge issued a lengthy opinion upholding the plea.

Nevertheless, after public criticism of the prosecution by the president, the department moved to dismiss Flynn’s case, claiming that new evidence showed that the plea had no basis. None of the career prosecutors who handled Flynn’s case signed that motion.

In both cases, the department undercut the work of career employees to protect an ally of the president, an abdication of the commitment to equal justice under the law. Prosecutors must make decisions based on facts and law, not on the defendant’s political connections. When the department takes steps that it would never take in any other case to protect an ally of the president, it betrays this principle.

Indeed, the department chose to assign these matters to a special counsel precisely to avoid the appearance of political influence. For the attorney general now to directly intervene to benefit the president’s associates makes this betrayal of the rule of law even more egregious.

The attorney general’s public comments worsened matters. William P. Barr gave nationally televised interviews in which he disparaged the work of prosecutors and agents who handled these cases, criticizing the Stone prosecutors for losing “perspective” and the Flynn team for becoming “wedded to a particular outcome.”

As the attorney general knows, those career prosecutors and agents cannot respond. The department prohibits employees from talking to the media about criminal cases without high-level approval. Department lawyers are ethically bound to protect the confidences of their client. Barr’s decision to excuse himself from these obligations and attack his own silenced employees is alarming. It sends an unmistakable message to prosecutors and agents — if the president demands, we will throw you under the bus.

The dedicated public servants who remain cannot respond publicly to those who claim that the department acted appropriately in these cases. But I can, and I say this. If the department truly acted because of good-faith commitments to legal positions, then where is the evidence of those commitments in other cases that do not involve friends of the president? Where are the narcotics cases in which the department has filed a sentencing memorandum overruling career prosecutors? Where are the other false-statements cases dismissed after a guilty plea?

There are none. Is that because the only cases in the United States that warranted intervention by department leadership happened to involve friends of the president? Of course not.

The task of repairing this damage will fall to the department’s career agents and prosecutors, and it is for them that I write this. Your work of investigating and prosecuting criminal cases is hard, and it becomes even harder when witnesses and jurors start to believe that the Justice Department’s handling of these cases is infected by politics. Your service during these times is a credit to the department. And you will be at your posts, serving justice, long after this attorney general is gone.

Continued in Part II.