Translation: “Not so fast, Barr. I’m still the judge here, not you.” Good news for those of us who still care about how the Constitution protects the independent judiciary. Judge Sullivan wants to hear from genuine friends of the court. Excellent!https://t.co/7PvPM78rTH
— Laurence Tribe (@tribelaw) May 13, 2020
William Barr’s use of the Justice Department as a political tool to free Michael Flynn is outrageous, as Harvard law prof Laurence Tribe suggests in cheering a federal judge’s decision to hear from other parties before dismissing the case against the admitted liar and Russia friend.
Politico reports on Judge Emmett Sullivan’s decision to hear more before speedily dismissing Flynn charges.
So what does Jim Guy Tucker, the former Arkansas governor have to do with this? Ernest Dumas explains:
By Ernest Dumas
By effecting a pardon for convicted felon Michael Flynn two and a half years after he pled guilty to lying about contacting the Russians on behalf of Donald Trump, Attorney General Bill Barr ended any doubt about how he views the role of the Justice Department and its police force, the FBI.
Contrary to the original act of Congress, Justice and the FBI are now to serve the president’s interests, not the country’s, much like the good old days of the KGB and the Gestapo, when they served as a dictator’s posse. Trump fired his Justice and FBI chiefs until he got the attorney general who agreed with him — the man who had twice used the Justice Department to try to salvage a Republican president.
When they were given the chance, the courts never let previous presidents get away with that, but America is in a bold new era. If they are given the chance, you can expect at least four of the five Federalist Society members of the Supreme Court to stand with Trump on Flynn’s pardon. Barr saved Trump from the great political risk of pardoning Flynn before the election. After Nov. 3, Trump will pardon everyone who is in prison or facing it for having committed crimes to protect Trump during the investigation of Russian election tampering.
Congress authorized the president in the Judiciary Act of 1789 to appoint an attorney general to run a Department of Justice, but his sole service to presidents and executive agencies was to advise them what the law was when asked, not to save them from the law.
Here in remote Arkansas, there are better reasons to grasp both the perfidy and the gravity of what Bill Barr did. Arkansans are, or should be, uniquely knowledgeable about whether the federal courts can or should let a man go free after pleading guilty to a crime, which is what Barr did for Michael Flynn and Donald Trump — and obliquely, for Trump’s corrupt pal Roger Stone.
Some 15 years ago, Republican federal judges from Arkansas to the 8th Circuit to the U.S. Supreme Court said the Arkansas governor — a Democrat — was stuck forever with his guilty plea in a bizarre case brought by a political hatchet man, although it turned out that the governor had been forced to plead guilty to violating a law that even the prosecutors ultimately admitted did not exist.
How will Bill Barr, the Justice Department — and perhaps the Supreme Court — square pardoning Trump’s man for pleading guilty to manifestly lying to protect his boss when the courts had ruled exactly the opposite in the Arkansas case? And when the Arkansas man was manifestly innocent? The Flynn case may never reach the Supreme Court, at least not before the election.
The Arkansas case I’m talking about, of course, is that of Jim Guy Tucker, who resigned as governor in 1996 after his convictions in baffling cases brought by Kenneth Starr, the Whitewater special prosecutor and acolyte of Bill Barr who was appointed by Republican federal judges to investigate young Bill and Hillary Clinton’s perfectly legal little land deal in Searcy County back in 1976. Tucker, of course, had nothing to do with the rival Clintons but got caught up in the special prosecutor’s search for someone who might be forced to give them some dirt on the new couple in the White House.
In case you have forgotten all that stuff, I’ll get back to it, but first a little memory refresher on Attorney General William Barr, who, before he is done, may make us feel better about Richard Nixon’s attorney general, John Mitchell, who went to prison for 19 months for helping plan the Watergate break-in and perjuring himself to protect Nixon.
Like Donald Trump today, President George H.W. Bush was in a dilemma before the 1992 election because President Reagan’s defense secretary, Caspar Weinberger, and five other officials faced criminal trials for their role in the illegal Iran-Contra arms deal. The special prosecutor, Republican Lawrence Walsh, had evidence that Weinberger had perjured himself about Bush’s role in the illegal arms sale to Iran. Bush’s attorney general — yes, Bill Barr — persuaded the president that he needed to pardon Weinberger and the others to prevent them from turning state’s evidence and detailing Bush’s role, in order to stay out of prison themselves. Bush pardoned them all and in his diary admitted that, yes, he had been fully aware of the arms deal.
At the same time, in the final days before the 1992 election, with Bill Clinton moving way ahead of Bush in the polls, a female White House staffer told her good friend Barr that it was terrible that President Bush was not looking good in the media while Clinton was getting a pass. She told him that they needed to get some national publicity about the Clintons’ suspected role (they had none) in helping an old friend with his little savings and loan business back in the early 1980s. Barr immediately pressured the Republican federal prosecutor in Little Rock, Chuck Banks, to publicly announce an investigation of the Clintons before the election. Banks refused to do his boss’ bidding and Bush went down to defeat. Barr would testify at congressional hearings that he really hadn’t put much pressure on Banks, just a friendly inquiry.
Neither Banks nor Barr ever forgot the other’s slight, but after Bush’s defeat Barr got a job representing Verizon and made a fortune. Barr’s solicitor general at Justice had been the Harding College alum Kenneth Starr, who thanks to Republican judges on the D.C. circuit pursued the Clintons for most of the next seven years and eventually got the president impeached for not being truthful about his liaisons with a young White House staffer.
It was Barr’s man Starr who, along with Barr’s recent assistant Rod Rosenstein and perhaps Brett Kavanaugh — whom Trump put on the Supreme Court last year — who rigged up the charges that Governor Tucker, a former prosecutor, attorney general, congressman and lieutenant governor, had conspired to cheat the federal government of $3.7 million in corporate income taxes by putting a Texas cable-television outfit through a sham bankruptcy in 1988 when he was a businessman.
Tucker demanded that the special prosecutor identify the section of the bankruptcy code that he had violated so he could defend himself. Starr would not say and the Republican trial judge, Stephen M. Reasoner, would not order him to do so until Tucker’s actual trial, which was bizarre itself. The supposed reason for the denial was that the actual charge was conspiracy, not evasion. The IRS itself had found nothing amiss in the bankruptcy. Normal Justice Department procedures require that any tax charge must be given prior approval by the IRS, but Starr regarded himself as exempt from the requirement.
Facing prison and searching for a life-saving liver transplant, Tucker agreed to plead guilty and pay whatever the IRS said he owed. But when they went to the hearing to determine what Tucker owed, the provision that the special prosecutor identified turned out to have been repealed two years before the bankruptcy by President Reagan’s 1986 tax-reform act.
Oops! Never mind, the Republicans on the 8th Circuit seemed to say, it was a minor and understandable goof. Once Tucker had pled guilty, it could never be undone. The judges erroneously described the sequence of events and rendered the federal post-conviction law (28 USC 2255) a nullity, at least in Tucker’s case. Tucker appealed to the Supreme Court, then controlled by the Federalist Society majority. It let the 8th Circuit’s rationale stand.
So why isn’t that the law that should govern Mike Flynn, whose lying is uncontroverted? Barr says Flynn’s lying just didn’t amount to much and that the FBI didn’t have a good enough reason to question him about his conversations with the Russians, which had been secretly recorded.
A better question: What happens if, as the founders feared, Americans ever discover that the Rule of Law has become only a political game?