An Attack on a Fundamental Principle of Justice

Prosecutorial discretion is necessary for law enforcement to work. But dropping the case against Michael Flynn is an abuse of this power, one that egregiously undermines the rule of law.

Michael Flynn

The Department of Justice has moved to dismiss the criminal case against Michael Flynn, the former national security adviser to President Donald Trump. At Attorney General Bill Barr’s direction, the Department took the action to, in his words, “restore confidence in the system [and show] there is only one standard of justice.” This Orwellian description conceals the reality that under Barr, there are two separate systems of justice, one for the president’s friends, and one for everyone else.

This is not the first time that Attorney General Barr has interfered in criminal investigations involving close confidants of President Trump. Earlier he intervened to soften a sentencing memorandum for Roger Stone—an act that led to the withdrawal of four career prosecutors from the case and a call from thousands of DOJ alumni for Barr’s resignation. Additionally, he earlier sought to soften the sentence to be imposed on General Flynn. This time, Barr has gone a step further and moved to dismiss the Flynn case outright. Once again, the lead prosecutor has quit the case, and the government’s filing was so unpersuasive that no career prosecutor was willing to sign it. It is signed only by a political appointee—Timothy Shea, the U.S. attorney for the District of Columbia, who was appointed by Barr—acting at the Attorney General’s direction.

Why would Barr do such a thing? After all, Flynn has already pleaded guilty—that is, he has admitted under oath that he lied to the FBI. The government doesn’t usually dismiss cases against people who have acknowledged their wrongdoing. And in exchange for his plea, the Department of Justice also agreed to not press other, more serious, charges against Flynn as well as to not bring charges against his son—a bargain that seems fair to many observers.

Shea, in the filing, offers a justification: He has now concluded that Flynn’s lies were not “material” to the government’s investigation (in other words, they didn’t matter that much). That justification is fatuous. Flynn was caught lying about his conversation with a foreign ambassador during a foreign-counterintelligence investigation. The lie was material when Flynn admitted it was, and nothing has changed since he did so.

Except, that is, for two things: Dismissing the case now (if the judge approves the request) frees President Trump from the politically damaging choice of pardoning Flynn; and doing so now also allows Barr and Trump to continue their assault on the Mueller investigation and the Russian connection as a “hoax.” In short, Barr’s action is a manifest politicization of the prosecutorial process, all in order to benefit the president.

That should concern every American citizen. In 1940, then–Attorney General Robert Jackson (one of the greatest lawyers in modern American history) gave an address in Washington at the Second Annual Conference of United States Attorneys. In his address, Jackson attempted to define the role of a federal prosecutor. Jackson told the U.S. attorneys:

Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just … Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases because no prosecutor can even investigate all of the cases in which he receives complaints … If a prosecutor is obliged to choose his cases, it follows he can choose his defendants. There is the most dangerous power of the prosecutor … it is in this realm … that the greatest danger of abuse of prosecuting power lies.

Jackson was speaking of prosecuting the innocent, but his words are just as applicable, if not more so, to prosecutorial discretion that excuses the guilty. Both manifest the awesome power of a prosecutor and are choices that should be made with great care.

In normal times, prosecutorial discretion is a good thing—after all, everyone goes at least a little bit faster than the posted speed limit some of the time. It would be a mean, cruel world if society had 100 percent enforcement of all criminal laws—everyone would be a criminal. Indeed, there would be grave damage to the American system of justice if prosecutors mechanically applied the criminal law to all who ran afoul of it. Society needs a system of justice with some play in the joints.

By its very nature, this discretion is indefinite and ambiguous. It proceeds not through a set of rules (though guidelines exist) but rather via norms that have developed over the years. It finds its expression not in hard and fast requirements but in the mindset and institutional culture of prosecutors in the Justice Department.

And that is precisely why Barr’s actions are so destructive—they destroy the norms of discretionary decision making. The American system of justice asks prosecutors to consider systematic questions—for example, whether the prosecution is a federal-law-enforcement priority or will have a significant deterrent effect—and issues that are specific to the individual, such as a person’s criminal history and the seriousness of the offense.

But never, until now‚ has it been acceptable to ask whether an individual has political connections to the president. Nor whether the prosecution would benefit his political interests. As former Acting Attorney General Stuart Gerson has put it, “The business of the Department [of Justice is] doing impartial justice and … our cases [should] be brought against violators of the law, irrespective of station.”

And that is why Barr’s actions are so destructive of the rule of law. It is not just that a guilty person will go free, though that is assuredly the case, by Flynn’s own admission. And it is not just that they reflect the politicization of prosecutorial decision making. The true harm—the deepest and most abiding harm—is that Barr has eviscerated the most sacred, central quality of the prosecutor’s role, his discretionary judgment.

Going forward, no American citizen can have confidence in the Department’s impartiality. And that, in turn, erodes Americans’ faith in their institutions, enhancing the opportunity for authoritarian control. Which, I suppose, may very well be the ultimate objective of the entire exercise.