David A. Graham: Why Michael Flynn is walking free
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.