Last week, the Department of Justice suddenly dropped its charges against former Trump adviser Michael Flynn. It was a notable move for many reasons. After all, Flynn had pleaded guilty to lying to FBI agents. And President Donald Trump had argued that the charges against Flynn were unfair. But instead of pardoning Flynn himself—a move many expected, considering his history—William Barr’s DOJ stepped in to do the job for him. A district judge has put the move to drop charges on hold for now. But that doesn’t stanch the gravity of the situation, or the effects of what the DOJ will do next.
On Wednesday’s episode of What Next, I spoke with Dahlia Lithwick, who writes about courts and the law for Slate and hosts the podcast Amicus, about the twists and turns in the case against Flynn, and why it matters. Our conversation has been edited and condensed for clarity.
Mary Harris: It’s worth getting at the heart of who Michael Flynn is. Flynn was a shoo-in to be Trump’s national security adviser. Some even floated his name as a potential vice president. Though Flynn had been the director of the Defense Intelligence Agency under President Barack Obama, his views had moved sharply to the right over the years.
Before Trump even took office, Flynn was getting involved with highly sensitive foreign policy. A few weeks after the election, Sergey Kislyak, who was Russia’s ambassador to the U.S., gave Flynn a call. He was worried about sanctions Obama had put in place as punishment for Russia’s meddling in the 2016 election. He was wondering: Should Russia respond here and escalate things? And Flynn tells him, Just sit tight. That’s why we’re talking about a criminal investigation into Flynn now, four years later.
Dahlia Lithwick: The only reason any of this is important is because what Flynn is being investigated for is whether he is susceptible to blackmail by the Russians. This is a counterintelligence question. Is he doing something that puts him in a position where the Russians can blackmail him in the future? And does that necessarily make the U.S. government vulnerable to more Russian interference? That was the issue that was being investigated. What the government ended up getting him for is that he lied about this phone call. But the issue wasn’t that he lied. The issue is, once he lied, the Russians know he lied. Now they have something to use against him. And that was the basis of the inquiry.
Flynn was fired almost immediately after being caught in this lie. And the thing about it is that even at the time, Trump seemed to be saying that he’s still a good guy. It was just a little lie, no big deal.
Remember, that was when Trump had his crazy tête-à-tête with Jim Comey, when he cleared the room and said, Can you see your way clear to making this go away? That was about Flynn. I think all the way through Trump was thinking, who among us doesn’t lie 40,000 times a day?
One of the most interesting things about the Flynn story is how he shape-shifts over time. Flynn gets fired from the White House and he’s caught in this lie. It’s clear that he’s going to be investigated and face legal trouble, so he makes a reasonable decision: He decides to cooperate with investigators and plead guilty. Is he helpful to investigators at that point?
I think he was initially very helpful. This is one other thing we should note: People plead guilty all the time. This is arguably a huge problem in the justice system, that people plead guilty because they have some court-appointed attorney who says to take the plea. We see this in the conversation around Flynn: that he was trapped and took this plea, and he didn’t do it. This is an incredibly sophisticated government actor who has incredible lawyers. This is not some poor guy who shoplifted at Walmart. This is somebody who has been a public figure for a very, very long time and, represented by counsel, twice pleads guilty and says, Yes, I did all these things. So it’s important to separate him from the many, many sorry souls who plead guilty without the advice of counsel, without a sophisticated knowledge of what that implies.
But I think you’re absolutely right. He cooperates with the Mueller investigation initially. The team is really happy with his cooperation. I think there’s a feeling he’s giving useful intel, and he appears all over the Mueller report. Then I think he felt as though he was not getting the kinds of rewards back for his cooperation that he expected.
Flynn was facing a possible prison sentence, despite the fact that he had been cooperating with the investigation. So he blows up his plea deal, fires his attorneys, and hires new counsel.
And he said: You know what? I changed my mind. I know I pleaded guilty twice, but I’m not guilty. The FBI was inappropriate. In real time, we saw him revert from I did something bad, I’m going to try to act honorably, I’m going to admit to it, to It never happened. And if it happened, so what? Everybody lies.
Flynn got this new attorney who was quite key in bringing out, from FBI investigators, this new evidence that this team claimed showed a kind of entrapment of Flynn. Can we talk about what that evidence was?
It shows that there was dissension between the FBI and the Justice Department. There was one impulse to close the investigation into Flynn during the transition. There was another to keep it open. It was never closed. So the idea that this investigation was somehow illicitly reopened after being closed is not factually true. There’s not much that is “new” that has surfaced. But I think that what it does is it serves the narrative that the FBI is illegitimate. The DOJ got worked and agreed to go forward with this illegitimate prosecution.
I think the real story is this happens all the time. There’s always interagency bickering, and the fact that there was disagreement between the FBI and the Justice Department doesn’t mean that what the FBI did was entrapment or unlawful or illegitimate. But that’s the story that’s been told effectively.
I like that you brought up that this evidence wasn’t new. It had always been there. It’s about the way you package it and present it to people, because it did take off in right-wing media circles over the past year. This idea that Flynn was entrapped was based on certain notes that were in the file. But it seemed like the kind of stuff you jot down when you’re in a meeting with someone and trying to figure something out.
This is just tactics. This is what prosecutors do all the time. As was written in the Washington Post, one new thing that we could see is the actual transcript of the call between Flynn and Kislyak. That would be useful new information, to know what was actually said in that call. But what’s been unearthed here as this shattering new revelation is stuff that’s been available to the judge all along.
It really struck me that just last month the president was asked about Flynn and whether he would pardon him. He seemed to presage what’s happened in the past week: He said, I don’t know that we’re going to need to pardon him. It was jaw-dropping that the president would say that and then, a few weeks later, his attorney general would decide to drop charges.
I think that shows how radically unprecedented this is. This just doesn’t happen, that the DOJ, after having elicited two guilty pleas, would just drop out. By the way, it was also radically unprecedented for a bunch of career prosecutors to say that this is the sentence they recommend for Roger Stone and then turn around and give him a slap on the wrist. I think we’re seeing actions coming out of the DOJ that we just don’t see.
Were you surprised?
I was. Because I think we all were ready for the pardon. And Trump has already shown us that he doesn’t hesitate to use his pardon powers indiscriminately. But here, he reached out and got the DOJ to compromise its own standards when he can just do it and not be held to account.
That’s I think why there’s this underground ripple of real alarm, because it’s one thing for the president to abuse his pardon powers, but it’s something entirely different when the DOJ has been conscripted into that project.
So you’re saying this is worse?
I don’t think there’s any dispute that this is worse. This is now using the apparatus of the legal system to do a thing that Trump could have done on his own. Trump has created a two-tiered system of justice where his friends and cronies and loyalists see the charges against them vaporize. And he is kind of rejiggering the DOJ to prosecute and go after anyone who wasn’t loyal to him. That’s why you’re hearing that this is what totalitarian governments do: You’ve just commandeered the DOJ to do a thing that is anathema to basic ideas of rule of law.
It very neatly does a few things at once. It consolidates power, makes clear that Trump is the decider, and leans toward authoritarianism. And it also is part of sweeping under the rug the Mueller investigation and saying, no, that wasn’t real.
That’s true, and it goes further: It recasts the Mueller investigation and impeachment probe as a witch hunt and a hoax. So it’s not just that it’s saying it wasn’t real. It’s saying that any attempt by any entity—be it Congress, a special prosecutor, or somebody within the Justice Department—to hold this president or his administration to account is a per se illegitimate enterprise.
I want to talk about Barr, because while what happened with Flynn certainly says a lot about the administration and Trump himself and how he values loyalty, this is a dance that requires two people. Barr has made clear where he stands here: He is a loyalist. He will defend the president’s right to do what he wants to do.
I think he’s been very consistent: Nobody can investigate the president. Nobody can indict the president. Nobody can sneeze at the president. I mean, this has been his raison d’être. He’s made it his business to create this capacious view of presidential power and authority and presidential untouchability. So this is just a Bill Barr special. It’s not about justice. It’s about who has power and who doesn’t.