In space no one can hear you scream. And if you’re only screaming on the inside as a member of D.C.’s legal establishment, no one can hear you scream either.
This past week has seen its share of silent screams. After Attorney General Bill Barr had his right-hand man in the U.S. Attorney’s Office for the District of Columbia seek to dismiss charges against Michael Flynn—charges to which he pleaded guilty not once but twice—with a fatuous new argument that the lies Flynn told the FBI in 2017 were not “material,” almost every respectable legal institutional actor in America started screaming silently. Mary McCord, who was an acting assistant attorney general for national security at the Justice Department from 2016 to 2017, wrote an op-ed in the New York Times on Sunday to clarify that the Barr Justice Department had badly mischaracterized the nature of her July 2017 conversation with the FBI to arrive at the conclusion that Flynn’s lies were not “material” and that his prosecution “would not serve the interests of justice.” McCord’s account of the dispute between prosecutors and the FBI reads as lawyerly and technical, but in lawyer-speak it was the equivalent of setting oneself on fire.
On Monday morning, we heard from Jonathan Kravis, one of the career prosecutors in the Roger Stone case who resigned in February from the Justice Department after 10 years when political officials in the DOJ interfered with the case to recommend a lower sentence for a Donald Trump crony. Kravis penned an op-ed for the Washington Post explaining that in the wake of the Flynn decision, he could no longer remain silent:
Since my resignation, I have not commented on the Stone sentencing; it is not easy for me to do so now. Prosecutors are trained to make their cases in the courtroom and let the results speak for themselves. But I feel compelled to write because I believe that the department’s handling of these matters is profoundly misguided, because my colleagues who still serve the department are duty-bound to remain silent and because I am convinced that the department’s conduct in the Stone and Flynn cases will do lasting damage to the institution.
Just before Timothy Shea, the interim U.S. attorney for the District of Columbia handpicked by Barr this year to lead that office, filed his motion to drop the case against Flynn last week, the lead prosecutor, Brandon Van Grack, withdrew from the case without comment. He thus followed in the footsteps of the four Stone prosecutors who took part in a similar “noisy withdrawal” in February over Barr’s sentencing interference. Inside the Justice Department, these acts of defiance register as tectonic shifts. At the time of the Stone sentencing, more than 2,600 former DOJ employees also signed a letter deploring Barr’s actions with respect to Stone. Again on Monday, more than 1,900 former Justice Department employees signed another open letter calling for Barr to step down, asserting that he had “once again assaulted the rule of law.” Again, signatories include long-standing Republican legal stalwarts such as Donald Ayer, a deputy attorney general under President George H.W. Bush; Charles Fried, solicitor general under President Ronald Reagan; and Stuart Gerson, who led the Justice Department’s civil division under Bush. The former DOJ employees also called on Congress to censure Barr and for a federal judge to hold a hearing on Flynn’s case before blindly obeying the new recommendation. Again, in institutional terms this kind of letter is thermonuclear. In lay terms, it was a gas leak.
This is not to denigrate these letters, op-eds, and other historical markers that have been filed, reluctantly and often painfully, to reflect the demise of old norms and unwritten rules of the road. Such efforts are important. But at some point, one has to wonder how hard we are going to keep working to preserve the sanctity and reputations of institutions that are either teetering on the brink of decimation or already dead. I have no idea how we are to judge when that line has been crossed, but at some point the spectacle of William Barr intoning that “history is written by the winner” is a good indicator that the rule of law is no longer a matter of neutral justice for all, but rather a quick spin through the Thunderdome.
We’ve been down this road before. Norms that constrain lawyers and judges and medical advisers all mean that while Donald Trump tweets overt threats at the entire FBI, invents an Obama scandal out of whole cloth, or delegitimizes the entire judicial branch, the response for anyone who cares anything at all about those institutions is by necessity muted, if there is even a response at all. And if asymmetrical warfare is the name of the game here, clearly he who doesn’t give a damn for institutions will always win. Judges, lawyers, line prosecutors, and anyone else who still believes in government must always fight on two fronts: defending against Trump and defending democracy by trying to stay as neutral as possible. In effect that looks a lot like punching yourself in the face while you suffer body blows from the other side.
Trump and Barr, and the ever-shrinking pool of those who surround and enable them, don’t care about broken institutions or cratered norms. They believe in owning their enemies by whatever means they can get away with politically. It’s not ever going to be a fair fight. And there are, in this media moment, rewards for setting dumpster fires, and few rewards for adding sober letters to the file.
I’m not sure how we’ll know when it’s time for DOJ lawyers to chain themselves to the building, or to put down their blue books and walk out. But we make a mistake when we believe that each time Barr and his political cronies gets a pass, the result is effectively the same. As is always the case when norms are eroded, as we norm enthusiasts shake our fists at the clouds, we are also laying the groundwork for the next violation, which will surely be worse. Susan Hennessey, the executive editor at Lawfare, tweeted this subtle but obvious point after the Flynn pleading was filed: That Barr had learned from the fact that the noisy internal outrage over the Stone sentencing had resulted in nothing emboldened him to do it again for Flynn. “Barr tested waters in interfering with Stone sentencing,” Hennessey wrote. “Remember the calls for his resignation, the internal revolt at Main Justice? Remember how Barr just waited it out? He got away with that. So now he’ll do this and wait out the outrage once again. Then onto the next abuse.”
More than one observer has noted this past weekend that once the apparatus of the justice system has been commandeered to protect the president’s boosters and do harm to his opponents, we are fully in the realm of authoritarianism. But even that has come to sound like so many words; and they are words we have heard so many times in recent years that they barely break through the noisy words of the president himself—words that feed the dumpster fire by threatening journalists for reporting all this. But with each repetition of the pattern, the result is an invitation to go further, and to tolerate more. This is the play; it’s always been the play. Screaming is unseemly and destructive and usually a mark of rank insanity. Not screaming is quickly becoming the same.