We are a day or two late with this, but it is still worth your attention. Barack Obama said on a phone call that the Department of Justice’s dropping of charges against General Flynn was unprecedented and, somehow, a threat to the rule of law. News organizations naturally repeated Obama’s assertions uncritically. But Flynn’s lawyer, Sidney Powell, casts a more critical eye in her Open Memorandum to Barack Obama. She begins:
Regarding the decision of the Department of Justice to dismiss charges against General Flynn, in your recent call with your alumni, you expressed great concern: “there is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free. That’s the kind of stuff where you begin to get worried that basic — not just institutional norms — but our basic understanding of rule of law is at risk.”
Here is some help—if truth and precedent represent your true concern. Your statement is entirely false. However, it does explain the damage to the Rule of Law throughout your administration.
First, General Flynn was not charged with perjury—which requires a material false statement made under oath with intent to deceive.1 A perjury prosecution would have been appropriate and the Rule of Law applied if the Justice Department prosecuted your former FBI Deputy Director Andrew McCabe for his multiple lies under oath in an investigation of a leak only he knew he caused.
McCabe lied under oath in fully recorded and transcribed interviews with the Inspector General for the DOJ. He was informed of the purpose of the interview, and he had had the benefit of counsel. He knew he was the leaker. McCabe even lied about lying. He lied to his own agents—which sent them on a “wild-goose-chase”—thereby making his lies “material” and an obstruction of justice. Yet, remarkably, Attorney General Barr declined to prosecute McCabe for these offenses.
Applying the Rule of Law, after declining McCabe’s perjury prosecution, required the Justice Department to dismiss the prosecution of General Flynn who was not warned, not under oath, had no counsel, and whose statements were not only not recorded, but were created as false by FBI agents who falsified the 302.
Powell makes seven points in all, but we will add just one more:
Second, it would seem your “wingman” Eric Holder is missing a step these days at Covington & Burling LLP. Indelibly marked in his memory (and one might think, yours) should be his Motion to Dismiss the multi-count jury verdict of guilty and the entire case against former United States Senator Ted Stevens. Within weeks of Mr. Holder becoming Attorney General, he moved to dismiss the Stevens prosecution in the interest of justice for the same reasons the Justice Department did against General Flynn—egregious misconduct by prosecutors who hid exculpatory evidence and concocted purported crimes.
As horrifying as the facts of the Stevens case were, they pale in comparison to the targeted setup, framing, and prosecution of a newly elected President’s National Security Advisor and the shocking facts that surround it. This case was an assault on the heart of liberty— our cherished system of self-government, the right of citizens to choose their President, and the hallowed peaceful transition of power.
Much more at the link. I said recently, in a completely different context, that a fake lawyer should never try to argue with a real lawyer. In this exchange, the real lawyer is Sidney Powell.