The Department of Justice’s court motion to drop the charges against former National Security Advisor Michael Flynn confirms that President Donald Trump has indeed found in Attorney General William Barr, his Roy Cohn, a lawyer willing to do Trump’s bidding, ethics be damned. But while Trump may be getting what he wants, the lawyers involved, particularly Interim U.S. Attorney for the District of Columbia Timothy Shea, should be leery of the comparison: they risk ending up, as Cohn did, disbarred and disgraced.
As many have written, the motion Shea filed seeking leave to drop the charges against Flynn, who previously had pleaded guilty to two counts of making false statements to the FBI, was virtually unprecedented. It makes arguments completely contrary to previous DOJ positions, mischaracterizes the statements of former DOJ officials, and – notably – was not supported by a single career prosecutor. More than just wrong, by filing the motion, Shea also may have violated legal and DOJ ethics rules. That’s why my organization, American Oversight, filed a complaint with DOJ’s Office of Professional Responsibility (OPR).
OPR was established to act in moments like these. It was created in 1975 in Watergate’s wake, following revelations of ethical abuses and serious misconduct by senior DOJ officials to investigate allegations that DOJ employees potentially violated the “law, regulations or orders, or applicable standards of conduct.” Of course, OPR reports to Barr and, therefore, may be subject to his influence. But the acting head of the office is a highly respected no-nonsense career prosecutor, so there’s reason to hope for an even-handed inquiry.
There is more than enough in the public record to warrant an investigation by OPR. For starters, as a lawyer representing the United States, Shea is required to zealously represent the interests of all Americans, not the interests of the president. Shea’s argument that dismissing the charges against Flynn is in the “interest of justice” is so weak and contrived that it suggests an ulterior motive. While it is unknown whether Shea or his DOJ superiors discussed the case with the president, Trump made it abundantly obvious he wanted Flynn cleared.
Rules of the Bar also prohibit lawyers from knowingly making a false statement to a court. In his motion, Shea pointed to the notes of an FBI official, Bill Priestap, and implied that they showed the FBI had acted inappropriately when interviewing Flynn, effectively suggesting the FBI was trying to “lay a perjury trap.” Yet, it has since been revealed that just two days before Shea filed his motion, DOJ officials interviewed Priestap, who explained that any such interpretation of his notes “was wrong” and that he knew of “no effort to set [Flynn] up.” Shea neither included Priestap’s explanation nor even acknowledged he had recently been interviewed by DOJ officials.
Further, any decision based on either Flynn’s political association with Trump, Shea’s own personal feelings concerning Flynn or the president, and/or the possible effect of failing to withdraw the case against Flynn on his own career, would impermissibly violate department guidelines intended to safeguard the impartial administration of justice. Similarly, prosecutorial decisions must be made impartially and free from political influence and partisan considerations. In fact, DOJ calls it the “fundamental duty of every employee . . . to ensure that these principles are upheld in all of the Department’s legal endeavors.” It is impossible to see how the decision to drop the charges against Flynn is in accord with this directive.
Earlier this week, the judge presiding over the Flynn case, Emmet Sullivan, appointed retired Judge John Gleeson to oppose DOJ’s efforts to drop the Flynn case and explore a potential perjury charge against Flynn for attempting to withdraw a guilty plea he had made under oath. DOJ chose to tangle with exactly the wrong judge: in 2009, Sullivan famously presided over the botched prosecution of former Alaska Senator Ted Stevens on corruption charges. Outraged by DOJ’s misconduct, Sullivan ordered his own inquiry, headed by a prominent Washington lawyer.
But the court probe needn’t sideline OPR. In the Stevens case, OPR conducted an investigation concurrently to Sullivan’s, eventually releasing a 672-page report. As then, OPR, the entity charged with policing the conduct of DOJ lawyers, should initiate its own inquiry in this case. There’s also the concern Trump could try to end-run Sullivan by pardoning Flynn after all, leaving OPR as the sole authority with jurisdiction to investigate.
Shea’s move – against the advice of career prosecutors – to drop the charges against Flynn contravenes the false statements statute to which Flynn twice pleaded guilty, as well as Bar rules, and DOJ’s own principles and guidelines. It also undermines Americans’ confidence in the fair administration of justice. OPR must step into the ethical void to demonstrate that DOJ is bound by the rule of law.