Your appointment as AG became official in March 2021. The country’s sensible half hoped for a reckoning with Bill Barr’s perversions of justice, and accountability for those who had contributed to them. Half a year later, near as we can tell, you have returned DOJ to something akin to normal; we no longer have to endure a daily avalanche of incoherence.
But there are murmurs of discontent from those who see the Trump presidency as a criminal enterprise from beginning to end. The recurring question: when are you finally going to indict the former president? You already have a wagonload of evidence, not least the Mueller Report; what else, after four years, remains to be uncovered?
You will continue to insist that investigations are ongoing, and that decisions to prosecute will be based purely on evidence, not political vendettas. The dedication to facts is commendable, as is your effort to wall off the country’s law enforcement apparatus from relentless political tumult. Prosecution decisions should be non-political.
But there is a difference between being sensitive to and being held hostage by this concern. If evidence of criminality exists, that the perpetrator happens to be a politician does not make the prosecution political, let alone a vendetta, regardless how loudly an unprincipled opposition and its media enablers claim otherwise.
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You’re familiar with the Flynn saga. In January 2017, Michael Flynn became Trump’s National Security Advisor. He lasted three weeks. He resigned for, in his words, having “inadvertently” given “incomplete information” to Vice President-elect Pence about Flynn’s not-occasional contacts with Russia’s ambassador to Washington, including during the presidential transition.
In December 2017, Flynn entered into a plea agreement with Special Counsel, Robert Mueller. Flynn admitted making false statements to the FBI when he denied having asked Russia, through its ambassador, not to respond to sanctions imposed by President Obama. Sentencing was delayed until December 2018 to give Flynn the chance to cooperate with Mueller.
Because Flynn cooperated (or appeared to), Mueller’s sentencing memorandum stated that Flynn “deserves credit for accepting responsibility in a timely fashion and substantially assisting the government” in its larger investigation into Russian interference in the 2016 election. Prosecutors recommended that Flynn get little or no jail time.
In his own sentencing memo, Flynn asked for leniency but sprang a surprise. He claimed that FBI agents had tricked him into lying and had not advised him that lying to federal agents was a felony. He said his “relaxed” behavior during the interview proved that he was being truthful. He did not explain how his guilty plea squared with his claim of entrapment.
At the December 2018 sentencing hearing, Judge Sullivan took issue with Flynn’s allegations of FBI misconduct. He also warned Flynn that, based on additional evidence from Mueller, it was risky for Flynn to assume that sentencing would not include incarceration even if, at least to this point, government prosecutors had not recommended prison time.
Judge Sullivan questioned Flynn’s attorney and Flynn himself. Both denied entrapment and misconduct by the FBI. Judge Sullivan also asked Flynn if he wanted to proceed with his guilty plea, accepted responsibility for his false statements, and was satisfied with his lawyers. Flynn said yes. Judge Sullivan delayed sentencing so Flynn could further cooperate with Mueller.
Fast-forward to June 2019, when Flynn replaced his (competent) attorneys with Sidney Powell, a Dallas hustler enamored of the spotlight. She began a public relations campaign — coordinated with the White House — to discredit the Flynn prosecution. She accused “high-ranking FBI officials” of orchestrating “an ambush-interview” of Flynn to trap him into false statements.
In December 2019, after Judge Sullivan’s rejection of FBI misconduct allegations, Powell moved to withdraw Flynn’s guilty plea. Flynn filed a personal declaration, stating that he was innocent and that he had “not consciously or intentionally” lied to the FBI and, even more dubiously, that his prior attorneys had failed to provide him effective legal counsel.
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On February 14, 2019, your predecessor became Attorney General. His mission was to ensure Trump’s re-election, which meant shielding the president against legal scrutiny related to existing investigations of the Trump campaign’s 2016 contacts with Russian intelligence and Russian efforts to use those contacts to interfere in the US election.
To do that, Barr looked to prove that the investigations were motivated by politics. Shortly before the February 27 sentencing of Flynn, Barr designated a (Trump-appointed) prosecutor to investigate the origins of the Flynn case. Judge Sullivan again postponed sentencing so that the parties could argue the merits of the allegations of FBI misconduct and inadequate legal counsel.
Two months later, Timothy Shea, interim US Attorney for the District of Columbia, at Barr’s request, moved to dismiss the Flynn case, arguing that the FBI’s questioning of Flynn had been “untethered to, and unjustified by, the FBI’s counterintelligence investigation”. Brandon Van Grack, until then the lead prosecutor, promptly withdrew from the case.
Litigation over Judge Sullivan’s power to deny the Justice Department’s motion to dismiss the Flynn case followed. Barr argued that, as with the decision to prosecute someone in the first place, it is he who has sole discretion to dismiss an existing case. After procedural twists and turns, the DC Circuit Court of Appeals disagreed with Barr.
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Between the DC Circuit’s decision in August and Trump’s post-election pardon of Flynn, proceedings on DOJ’s motion to dismiss — and prosecutors’ efforts to help Flynn (and Trump’s re-election campaign) — continued before Judge Sullivan. Those efforts included feeding to Sidney Powell information that Trump would use a few days later in his debate with Biden.
Specifically, a prosecutor sent Powell, and submitted to the court, documents in the form of texts between FBI agents Strzok and Page, between FBI analysts, Strzok notes, and notes of FBI deputy director McCabe. The aim was to support Barr’s argument for dismissal of the case, and to give Trump ammunition for his assertion that it was Biden who had pushed to investigate Flynn.
But for the documents to accomplish this, they had to be doctored, and doctored they were. When Judge Sullivan asked, DOJ admitted that it “has learned that … FBI agents … placed a single yellow sticky note on each page of Strzok notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed” before documents were submitted.
DOJ also submitted to the court an FBI interview report with the name of lead prosecutor Brandon Van Grack redacted. Van Grack had been the centerpiece of Powell’s claims of prosecutorial misconduct. DOJ did this to hide from Judge Sullivan the fact that, contrary to Powell’s allegations, an FBI agent (Bill Barnett) had nothing but complimentary things to say about Van Grack.
Judge Sullivan ordered DOJ to authenticate each document it had submitted to him in support of its motion to dismiss the Flynn case. Prosecutors again admitted “administrative error” but represented that attorneys for Strzok and McCabe had “confirmed” that the contents of their notes had “not [been] altered in any way”. The problem? DOJ’s representation was false.
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DOJ continues to prosecute hundreds of cases related to the storming of the US Capitol on January 6. The process has been painstaking, as DOJ (correctly) distinguishes between mere trespassing and acts of violence. Although progress has been slow, there are hints that your crew is moving to link those who carried out the attack to those who orchestrated it.
No mere trespasser was Joe Biggs, Afghanistan and Iraq veteran, and PTSD case. Member of the Proud Boys — and, characteristic of that group, incontinent on social media — he had promised, in the weeks after the election, that “[i]t’s time for fucking [w]ar if they steal this shit. … This is war.” And he delivered by planning, coordinating, and leading the Capitol assault.
(That federal authorities failed that day to keep Biggs from getting anywhere near the Capitol despite his stream of threats of violence was, in part, a function of his role as FBI informant providing information on Antifa. FBI agents were unaware of, or ignored, evidence of Biggs’s coordination and planning roles for January 6.)
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What does this long-winded tale have to do with you, Merrick? The prosecutor for DOJ who, under Barr, submitted doctored evidence to Judge Sullivan was Jocelyn Ballantine. A week ago, in a hearing for Joe Biggs, your prosecution team told the court that it now had an additional member (though someone who’s not formally appeared in the case): Jocelyn Ballantine.
Successful prosecution of Biggs increases your chances of proving a link between the mob and the co-conspirators, including leading political figures, who inspired it. Although there is no evidence that you appointed Ballantine to sabotage the Biggs case, her appointment does tell us that your loyalty to career prosecutors supersedes your much-acclaimed loyalty to the law.
More sobering is the message you send — unwittingly or not — to attorneys and judges everywhere when you keep Ballantine on the payroll despite her attempts at a fraud on the court in the Flynn case. Without leaving fingerprints, you have exempted federal prosecutors from an undisputed, red-line legal standard that governs the conduct of all members of the bar.
It is no small surprise that someone with an unalloyed reputation for commitment to the law cavalierly sacrifices a core legal value to the protection of a wayward prosecutor. It does nothing to defang now-common “fake news” conspiracies and resentment over a perceived double standard imposed by unaccountable “elites”.
And to what end? To enhance morale at DOJ? Or to keep the halo polished, to make sure that no one will ever accuse you of being partisan because that might tarnish your good-guy reputation? If so, it means that the prospects of applying the law to a president — who, with the party that abetted him, shredded legal and political norms — are zero. Is that what you intended to tell us?
