Emmet G. Sullivan, the judge in the case of former Trump National Security Adviser Michael Flynn, is refusing to let William Barr’s Justice Department drop the charge. He’s even thinking of adding more, appointing a retired judge to ask “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.”
Pundits are cheering. A trio of former law enforcement and judicial officials saluted Sullivan in the Washington Post, chirping, “The Flynn case isn’t over until a judge says it’s over.” Yuppie icon Jeffrey Toobin of CNN and the New Yorker, one of the #Resistance crowd’s favored legal authorities, described Sullivan’s appointment of Judge John Gleeson as “brilliant.” MSNBC legal analyst Glenn Kirschner said Americans owe Sullivan a “debt of gratitude.”
One had to search far and wide to find a non-conservative legal analyst willing to say the obvious, i.e. that Sullivan’s decision was the kind of thing one would expect from a judge in Belarus. George Washington University professor Jonathan Turley was one of the few willing to say Sullivan’s move could “could create a threat of a judicial charge even when prosecutors agree with defendants.”
Sullivan’s reaction was amplified by a group letter calling for Barr’s resignation signed by 2000 former Justice Department officials (the melodramatic group email somberly reported as momentous news is one of many tired media tropes in the Trump era) and the preposterous “leak” of news that the dropped case made Barack Obama sad. The former president “privately” told “members of his administration” (who instantly told Yahoo! News) that there was no precedent for the dropping of perjury charges, and that the “rule of law” itself was at stake.
Whatever one’s opinion of Flynn, his relations with Turkey, his “Lock her up!” chants, his haircut, or anything, this case was never about much. There’s no longer pretense that prosecution would lead to the unspooling of a massive Trump-Russia conspiracy, as pundits once breathlessly expected. In fact, news that Flynn was cooperating with special counsel Robert Mueller inspired many of the “Is this the beginning of the end for Trump?” stories that will someday fill whole chapters of Journalism Fucks Up 101 textbooks.
The acts at issue are calls Flynn made to Russian Ambassador Sergei Kislyak on December 29th, 2016 in which he told the Russians not to overreact to sanctions. That’s it. The investigation was about to be dropped, but someone got the idea of using electronic surveillance of the calls to leverage a case into existence.
In a secrets-laundering maneuver straight out of the Dick Cheney playbook, some bright person first illegally leaked classified details to David Ignatius at the Washington Post, then agents rushed to interview Flynn about the “news.”
“The record of his conversation with Ambassador Kislyak had become widely known in the press,” is how Deputy FBI chief Andrew McCabe put it, euphemistically. “We wanted to sit down with General Flynn and understand, kind of, what his thoughts on that conversation were.”
A Laurel-and-Hardy team of agents conducted the interview, then took three weeks to write and re-write multiple versions of the interview notes used as evidence (because why record it?). They were supervised by a counterintelligence chief who then memorialized on paper his uncertainty over whether the FBI was trying to “get him to lie” or “get him fired,” worrying that they’d be accused of “playing games.” After another leak to the Washington Post in early February, 2017, Flynn actually was fired, and later pleaded guilty to lying about sanctions in the Kislyak call, the transcript of which was of course never released to either the defense or the public.
Warrantless surveillance, multiple illegal leaks of classified information, a false statements charge constructed on the razor’s edge of Miranda, and the use of never-produced, secret counterintelligence evidence in a domestic criminal proceeding – this is the “rule of law” we’re being asked to cheer.
Russiagate cases were often two-level offenses: factually bogus or exaggerated, but also indicative of authoritarian practices. Democrats and Democrat-friendly pundits in the last four years have been consistently unable to register objections on either front.
Flynn’s case fit the pattern. We were told his plea was just the “tip of the iceberg” that would “take the trail of Russian collusion” to the “center of the plot,” i.e. Trump. It turned out he had no deeper story to tell. In fact, none of the people prosecutors tossed in jail to get at the Russian “plot” – some little more than bystanders – had anything to share.
Remember George Papadopoulos, whose alleged conversation about “dirt” on Hillary Clinton with an Australian diplomat created the pretext for the FBI’s entire Trump-Russia investigation? We just found out in newly-released testimony by McCabe that the FBI felt as early as the summer of 2016 that the evidence “didn’t particularly indicate” that Papadopoulos was “interacting with the Russians.”
If you’re in the media and keeping score, that’s about six months before our industry lost its mind and scrambled to make Watergate comparisons over Jim Comey’s March, 2017 “bombshell” revelation of the existence of an FBI Trump-Russia investigation. Nobody bothered to wonder if they actually had any evidence. Similarly Chelsea Manning insisted she’d already answered all pertinent questions about Julian Assange, but prosecutors didn’t find that answer satisfactory, and threw her in jail for year anyway, only releasing her when she tried to kill herself. She owed $256,000 in fines upon release, not that her many supporters from the Bush days seemed to care much.
The Flynn case was built on surveillance gathered under the FISA Amendments Act of 2008, a program that seems to have been abused on a massive scale by both Democratic and Republican administrations.
After Edward Snowden’s 2013 revelations about mass data collection, a series of internal investigations began showing officials were breaking rules against spying on specific Americans via this NSA program. Searches were conducted too often and without proper justification, and the results were shared with too many people, including private contractors. By October, 2016, the FISA court was declaring that systematic overuse of so-called “702” searches were a “very serious fourth Amendment issue.”
In later court documents it came out that the FBI conducted 3.1 million such searches in 2017 alone. As the Brennan Center put it, “almost certainly… the total number of U.S. person queries run by the FBI each year is well into the millions.”
Anyone who bothers to look back will find hints at how this program might have been misused. In late 2015, Obama officials bragged to the Wall Street Journal they’d made use of FISA surveillance involving “Jewish-American groups” as well as “U.S. lawmakers” in congress, all because they wanted to more effectively “counter” Israeli opposition to Obama’s nuclear deal with Iran. This is a long way from using surveillance to defuse terror plots or break up human trafficking rings.
I can understand not caring about the plight of Michael Flynn, but cases like this have turned erstwhile liberals – people who just a decade ago were marching in the streets over the civil liberties implications of Cheney’s War on Terror apparatus – into defenders of the spy state. Politicians and pundits across the last four years have rolled their eyes at attorney-client privilege, the presumption of innocence, the right to face one’s accuser, the right to counsel and a host of other issues, regularly denouncing civil rights worries as red-herring excuses for Trumpism.
I’ve written a lot about the Democrats’ record on civil liberties issues in the past. Working on I Can’t Breathe, a book about the Eric Garner case, I was stunned to learn the central role Mario Cuomo played in the mass incarceration problem, while Democrats also often embraced hyper-intrusive “stop and frisk” or “broken windows” enforcement strategies, usually by touting terms like “community policing” that sounded nice to white voters. Democrats strongly supported the PATRIOT Act in 2001, and Barack Obama continued or expanded Bush-Cheney programs like drone assassination, rendition, and warrantless surveillance, while also using the Espionage Act to bully reporters and whistleblowers.
Republicans throughout this time were usually as bad or worse on these issues, but Democrats have lately positioned themselves as more aggressive promoters of strong-arm policies, from control of Internet speech to the embrace of domestic spying. In the last four years the blue-friendly press has done a complete 180 on these issues, going from cheering Edward Snowden to lionizing the CIA, NSA, and FBI and making on-air partners out of drone-and-surveillance all-stars like John Brennan, James Clapper, and Michael Hayden. There are now too many ex-spooks on CNN and MSNBC to count, while there isn’t a single regular contributor on any of the networks one could describe as antiwar.
Democrats clearly believe constituents will forgive them for abandoning constitutional principles, so long as the targets of official inquiry are figures like Flynn or Paul Manafort or Trump himself. In the process, they’ve raised a generation of followers whose contempt for civil liberties is now genuine-to-permanent. Blue-staters have gone from dismissing constitutional concerns as Trumpian ruse to sneering at them, in the manner of French aristocrats, as evidence of proletarian mental defect.
Nowhere has this been more evident than in the response to the Covid-19 crisis, where the almost mandatory take of pundits is that any protest of lockdown measures is troglodyte death wish. The aftereffects of years of Russiagate/Trump coverage are seen everywhere: press outlets reflexively associate complaints of government overreach with Trump, treason, and racism, and conversely radiate a creepily gleeful tone when describing aggressive emergency measures and the problems some “dumb” Americans have had accepting them.
On the campaign trail in 2016, I watched Democrats hand Trump the economic populism argument by dismissing all complaints about the failures of neoliberal economics. This mistake was later compounded by years of propaganda arguing that “economic insecurity” was just a Trojan Horse term for racism. These takes, along with the absurd kneecapping of the Bernie Sanders movement, have allowed Trump to position himself as a working-class hero, the sole voice of a squeezed underclass.
The same mistake is now being made with civil liberties. Millions have lost their jobs and businesses by government fiat, there’s a clamor for censorship and contact tracing programs that could have serious long-term consequences, yet voters only hear Trump making occasional remarks about freedom; Democrats treat it like it’s a word that should be banned by Facebook (a recent Washington Post headline put the term in quotation marks, as if one should be gloved to touch it). Has the Trump era really damaged our thinking to this degree?
My family is in quarantine, I worry about a premature return to work, and sure, I laughed at that Shaun of the Dead photo of Ohio protesters protesting state lockdown laws. But I also recognize the crisis is also raising serious civil liberties issues, from prisoners trapped in deadly conditions to profound questions about speech and assembly, the limits to surveillance and snitching, etc. If this disease is going to be in our lives for the foreseeable future, that makes it more urgent that we talk about what these rules will be, not less — yet the party I grew up supporting seems to have lost the ability to do so, and I don’t understand why.