In other news, it turns out that the earth is not flat.
Lying to the FBI is a crime. There is a materiality requirement; if you tell the FBI that you had cornflakes for breakfast when you had raisin bran, they can’t indict you. But as a lawyer who has argued materiality in a number of cases, I can tell you that beyond what kind of cereal you have, there is very little that is not material. A lie is material not only if it is relevant to the investigation but if the FBI says the lie caused the FBI to affect the course or focus of its investigation or fail to pursue certain lines of inquiry.
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Barr asserted that the government already had the transcript of the conversation so there was no reason to interview him. They knew he had talked to the Russian Ambassador and what was said — basically, don’t worry about responding to Obama’s throwing out of Russian diplomats (or spies undercover) because when we come into office, we’ll fix it all up.
But the FBI had been investigating Russian interference in the Trump campaign. And here is the incoming National Security Advisor telling the Russian Ambassador that good times are gonna roll for Russia when the Trump team arrives. On whose behalf was Flynn offering the goodies? Was he acting on his own? Unlikely. Was he instructed by President-elect Trump to let the Russian ambassador know? And if so, why? Was there, to use a phrase, a quid pro quo? Pretty good questions.
For Barr to claim there was no need to ask whether there was contact because the government already knew, is to limit the purpose of the interview to a single question. Not only does the FBI ask questions it knows the answer to all the time, such a question would be a logical entry point to the questions of why this was occurring when there was still a president in the Oval Office whose policies were entitled not to be undermined by the incoming administration.
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[W]hat Barr did was the worst harm that could be done to the republic: politicizing prosecution so that the friends of the Dear Leader get off and the enemies of the Dear Leader get prosecuted.
Monday, May 11, 2020
William Barr's debasement of the Justice Department
The Independent has an excellent and detailed deconstruction of the idea that William Barr was justified in dropping the charges against Michael Flynn:
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The FBI and DOJ knew that
(a) the questioning of Flynn had not been based on any properly predicated investigation;
(b) the FBI had willfully violated protocols to conduct an ambush interview, which they would not have been permitted to do had they sought permission from the Justice Department and the White House;
(c) the agents who interviewed Flynn did not believe he had lied; and
(d) the bureau improperly edited the report of Flynn’s interview.
Mueller’s staff nevertheless eventually succeeded in pressuring Flynn to plead guilty to a false-statements charge. It has since been reported, however, that
(e) They pressured him to plead by threatening to prosecute his son,
(f) Mueller’s commitment not to prosecute Flynn’s son was withheld from the court, in violation of federal law, and
(g) prosecutors concealed from Flynn’s defense significant exculpatory evidence while misrepresenting how the interview report was generated.
Attorney General Michael Barr:
"A crime cannot be established here. They did not have a basis for a counterintelligence investigation against Flynn at that stage," Barr said, referring to the FBI.
"People sometimes plead to things that turn out not to be crimes," he added.
Barr said that he is expecting criticism from people who view the move as political, adding that he found it "sad that nowadays these partisan feelings are so strong that people have lost any sense of justice."
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