With the announcement that the Justice Department is dropping the charges against former National Security Adviser Michael Flynn on Thursday, Attorney General Bill Barr took his latest step in tearing down the legacy of Special Counsel Robert Mueller's investigation.
In his way, Barr is completing the obstruction of justice that Mueller meticulously argued President Donald Trump committed in his eponymous report, without ever actually officially accusing him of the crime.
Mueller laid out 10 different categories of acts that could potentially constitute obstruction of justice on the president's part. They involved various ways Trump tried to interfere with or redirect the course of the special counsel's investigation. Three of these categories of potential obstructive action related directly to Attorney General Jeff Sessions, who was recused from overseeing the investigation. Trump desperately wanted Sessions to unrecuse himself and take control of Mueller's probe away from then-Deputy Attorney General Rod Rosenstein. He wanted Sessions to end the investigation entirely.
One key event that was missing from the Mueller report, however, stands out: the firing of Sessions. Trump ousted the attorney general by asking for his resignation right after the 2018 midterm elections. He was initially replaced as attorney general by Matthew Whitaker in an acting capacity, and then by Bill Barr in 2019.
Though Mueller didn't make the case, it's clear that this was an extension of Trump's previous efforts to obstruct the special counsel investigation. In fact, on Friday, Trump almost admitted as much in an interview with Fox News. He said he regretted making Jeff Sessions the attorney general, and Barr would have ensured that there was never a Russia investigation.
“He would have stopped it immediately,” Trump said.
Trump didn't get his full wish by replacing Sessions. But with Barr, Trump had a formidable spin man at the helm to twist Mueller's conclusions and downplay the significance of its findings. Barr successfully softened the blow of Mueller's damning accounting of Trump's obstruction. But the president's associates, including George Papadopolous, Rick Gates, Paul Manafort, Roger Stone, Michael Cohen, and, of course, Flynn, didn't get off so easy. They were all charged and found guilty in the probe.
Papadopolous has served his time. Gates was a turncoat and cooperator, as was Cohen. And Manafort's legacy of criminality as deep and colorful that likely even Barr cannot help him out.
But Barr dipped his toe in the water to help out Stone. Ahead of Stone's sentencing, Barr intervened to lower the Justice Department's assessment of the time he should serve in prison. This move was unprecedented, triggering career prosecutors to withdraw from the case. And Barr provided no plausible explanation for why Stone's circumstances required a special intervention from the attorney general that few other defendants get. Of course, most defendants aren't personal friends of the president.
In Flynn's case, Barr dove straight in. He has directed DOJ to drop the charges against Flynn entirely — though whether that's effective, given that a judge has already accepted Flynn's guilty plea, remains to be seen. One prosecutor who had been working on Flynn's case abruptly withdrew from the case ahead of the announcement, and no career prosecutors signed the filing revealing Barr's decision. Barr has made no indication whether DOJ will consider charging Flynn with other crimes he admitted to — most notably, working as an undisclosed agent of Turkey while serving Trump's 2016 campaign — but few expect that it will.
With this move, Barr has finally done what Trump asked of James Comey more than three years ago, according to the former FBI director's account:
The President then returned to the topic of Mike Flynn, saying, "He is a good guy and has been through a lot." He repeated that Flynn hadn't done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, "I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go." I replied only that "he is a good guy." (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would "let this go."
Comey wouldn't let Flynn go. Neither would Robert Mueller, and neither would Rod Rosenstein. But Barr would.
Why Flynn? He has become a cause célèbre on the right, moreso than any of the other targets of the Russia investigation. Conservative media world — which Barr is clearly tuned in to — has turned Flynn into a fallen hero looking to be redeemed. Many argue or imply that he was set up by the Obama administration in an attempt to take Trump down, perhaps by even President Barack Obama himself. They ignore the fact that he was serving a foreign government while working for a presidential campaign, or that he lied about his contacts with the Russian ambassador during the transition for reasons that remain unclear.
They even seem to suggest that Flynn's purported vindication could be a boost for Trump's re-election, though I see little indication persuadable voters are invested in the case.
It's not just about Flynn, though. Barr is working on a larger narrative to bring down the legacy of the Mueller probe and the Russia investigation. He clearly believes it was a conspiracy against Trump, and he's looking for the evidence to prove it.
So far, he seems to be coming up dry. A review from the DOJ inspector general found that, though there were problems in some aspects of the early conduct fo the Russia investigation, there's no reason to believe it was a politically motivated hit job. And now, Barr's excuse for dropping the charges against Flynn is paper-thin.
Essentially, Barr believes that the counterintelligence investigation into Flynn was unjustified, and therefore the lies he told to the FBI were not material to any justified investigation. If the lies weren't material, then they're not prosecutable.
But this explanation doesn't pass the laugh test. The FBI was investigating Russian links to the Trump campaign following the Kremlin's intervention in the 2016 election. Flynn was a foreign agent of the Turkish government. He had a surprising and provocative conversation with the Russian ambassador that related to sanctions that were put in place to punish Russia for its election meddling. The idea that the FBI had no basis to talk to Flynn about his conduct is ridiculous.
Even if we grant, though, Barr reasonably believes that he wouldn't have pursued and investigation of Flynn at that moment, it's an extreme leap for the attorney general to conclude any charges arising from an investigation he wouldn't have ordered are de facto illegitimate. It's entirely unworkable for the attorney general to substitute his own judgment for the factual predicate of every investigation under the DOJ; and if we admit that, it seems like the new Barr standard is designed simply to benefit the president's friends.
Will Barr find any substantive wrongdoing on the part of the team that investigated Trump's associates that seriously undermines the integrity of the course of the investigation? He certainly hopes so, and outside observers can't rule it out. But if this is the best he's got so far, it seems likely his biggest supporters are going to be disappointed.