(Photo by the Defense Department via Wikimedia)
The Department of Justice is moving to drop the case against Michael Flynn, claiming that they just don’t have any evidence, a curious claim since Flynn twice agreed under oath to a statement of facts that spells out every element of the crime and is about as damning as evidence can get, but they’re hoping everyone just glosses over that. It marks the culmination of Flynn’s efforts with the assistance of new counsel Sidney Powell, to attempt to undo his guilty plea. It was a moonshot of a plan, but with the help of an Attorney General unconcerned with the damage this could cause, they managed to pull it off.
Because lying to law enforcement is the sort of thing the DOJ would ideally take seriously. One can argue the merits of criminally sanctioning this behavior, but there’s no argument that from the DOJ’s stance there should be every incentive to keep people from giving investigators the run around. If the Department was concerned about consistency, they would have serious concerns about publicly declaring that lying to the FBI wasn’t up to their prosecutorial standards, but this is a tin pot dictatorship now and capriciousness holds sway.
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As one might imagine with the Attorney General just making up legal takes, a horde of graduates of Twitter Law School rushed online to share their analysis of the case with predictable effects.
If you’re looking for bad legal takes, you don’t have to go much further than the account “Bad Legal Takes” where Professor Steve Vladeck attempted to explain what “leave of court” means to an audience that was not interested.
— Bad Legal Takes (@BadLegalTakes) May 7, 2020
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Can the judge really salvage this case over the DOJ’s abdication? Yeah, but it would be an unusual case. Here’s a decidedly non-terrible explanation:
In Rinaldi, the Supremes held that if a prosecutor’s motion to dismiss was not tainted with impropriety and not motivated by considerations clearly contrary to manifest public interest, the trial court cannot deny the motion. It’s a deferential standard but also an unusual case.
— HarrySandick (@HarrySandick) May 8, 2020
And Above the Law alum Kayleigh McEnany got in on the act, pushing the entrapment theory that’s become popular in wingnut circles:
.@PressSec: "The FBI exists to investigate crimes, but in the case of Lt. General Michael Flynn, it appears that they might have existed to manufacture one." pic.twitter.com/qay4shZeKN
— The White House 45 Archived (@WhiteHouse45) May 8, 2020
Alas, it’s not entrapment to ask someone a question just because you suspect they’re about to lie. We even have a whole Fifth Amendment just to protect someone from having to lie if they don’t want to. This really isn’t difficult.
RT If James Comey should be prosecuted and charged for what he did to General Michael Flynn!
— Charlie Kirk (@charliekirk11) May 7, 2020
If we’re going to start stripping away qualified immunity to prosecute law enforcement for cases they pursue, maybe we could start with one where the sophisticated actor with highly regarded counsel didn’t admit to the crime multiple times. Maybe?
But it does speak to the cancer that Barr’s Justice Department is injecting into society. It’s all about vengeance with little if any interest in what the statutes actually say.
Gonna be amazing when Trump appoints Flynn to head the FBI, and Flynn then prosecutes a variety of Democrats for violating the Logan Act.
— Ben Shapiro (@benshapiro) May 7, 2020
Good God. There are people who read these people and believe them. Where to begin with this one… Actually, you know what? Never mind. Hand me the whiskey.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.