Hot, polluted water is identified in a WaPo op-ed by John Gleeson, David O’Neil and Marshall Miller, on the withdrawal of Michael Flynn charges.
What will knowing the content of the 2016 Sergey Kislyak — Michael Flynn phone call tell us. Flynn wants lobster and Barr will get it for him, except now we need to drop it in the boiling water. It has nothing to do with the now tired meme of “unmasking” left over from the impeachment. It has everything to do with Trump desperate to erase the Mueller probe.
Judge Sullivan can see the path to the bunker and to the restaurant, and the only masks are worn by the wait staff. Flynn still lied, and we might know a bit more about the sanction-lifting promised to the Russians. More likely DoJ will get their wish but Sullivan could still charge Flynn with perjury.
Courts often inquire as to the reasons for a government motion to dismiss, but this is the rare case that requires extra scrutiny, to ensure that, in the Supreme Court’s words, “the waters of justice are not polluted.”Fortunately, the court has many tools to vindicate the public interest. It can require the career prosecutor to explain why he stepped off the case, as another federal judge recently did when the Trump administration attempted to replace a trial team litigating the politicization of the census. It can appoint an independent attorney to act as a “friend of the court,” ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role. If necessary, the court can hold hearings to resolve factual discrepancies.
And the court could compel the department to reveal the one thing it has thus far refused to show — the actual evidence underlying the prosecution. To help Flynn, the department has made public documents it jealously guards in almost every other case, including confidential memos and internal deliberations. But it has balked at disclosing the transcripts of the very conversations with the Russian ambassador that Flynn admitted he lied about when the FBI interviewed him.The department once argued that those conversations confirmed Flynn’s guilt. It now claims those conversations were innocuous. By ordering disclosure of the transcripts, the court can empower the American public to judge for itself — and assess why the department is trying to walk away from this important case.Flynn’s guilt has already been adjudicated. So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing.
Gleeson is a co-author of this Washington Post op-ed https://t.co/I33MSxMlJx— southpaw (@nycsouthpaw) May 13, 2020