THE NEW YORK TIMES NATIONALTHURSDAY, JUNE 25, 2020 N AThe 45th PresidentThe Agenda
campaign. Earlier this year, Mr.
Flynn sought to withdraw his
guilty plea, and Attorney General
William P. Barr directed prosecu-
tors last month to ask Judge Sulli-
van to dismiss the case.
But before ruling on that re-
quest, Judge Sullivan appointed a
former judge to critique the gov-
ernment’s motion. Mr. Flynn’s de-
fense lawyer, Sidney Powell, then
asked the federal appeals court to
order Judge Sullivan to shut down
that review and terminate the
matter.
Widely seen as a long shot by
many legal experts, her strategy
succeeded — at least for now.
The case is “about whether, af-
ter the government has explained
why a prosecution is no longer in
the public interest, the district
judge may prolong the prosecu-
tion by appointing an amicus, en-
couraging public participation
and probing the government’s
motives,” wrote Judge Neomi
Rao, a former White House official
whom Mr. Trump appointed to the
appeals court last year.
She added, “On that, both the
Constitution and cases are clear:
He may not.”
Judge Sullivan, who has a law-
yer representing him in the ap-
peals court, could ask the full
court to reverse the order. The full
court also could invoke a rarely
used rule that permits it to order a
rehearing on its own, without any
petition, if the judges deem the
matter to involve “a question of
exceptional importance.”
The ruling turned on a technical
question — whether, as a legal
matter, Judge Sullivan had the au-
thority to scrutinize Mr. Barr’s
motivation or had to acquiesce to
the Justice Department request
that he rubber-stamp dropping
the case without reviewing the
motion’s legitimacy.
But at a House Judiciary Com-
mittee hearing titled “Political In-
terference and Threats to Pros-
ecutorial Independence” on
Wednesday, where two Justice
Department officials testified
about other law enforcement deci-
sions by and under Mr. Barr, Re-
publican lawmakers treated the
ruling as vindicating the attorney
general’s claim that the Flynn
case was unjust on the merits.
“We obviously know the Flynn
charge was wrong as evidenced
by what happened today,” said
Representative Jim Jordan, Re-
publican of Ohio.
At the White House, Mr. Trump
told reporters he was “very happy
about General Flynn,” adding:
“He’s been exonerated, and I want
to congratulate him.”
But Representative Steve Co-
hen, Democrat of Tennessee,
called on the full appeals court to
review the panel’s decision, argu-
ing at the House hearing that
judges should be able to “look into
the executive branch when what
they do is not in the interest of jus-
tice.”
He also portrayed Judge Rao in
political terms, noting that until
she became a judge last year, she
had led a White House agency
that oversees regulations. Under
Mr. Trump, he said, that agency“does what Trump likes best,
which is jeopardize the safe air
and water of the American public
and give in to industry and profits
and pollution. And she did a good
job of it.”
Judge Rao’s decision not to per-
mit Judge Sullivan to scrutinize
the Justice Department request to
withdraw the Flynn charge was
joined by Judge Karen L. Hender-
son, a 1990 appointee of President
George Bush.
The fact that the two of them
turned out to be on the panel had
been seen as a good sign for Mr.
Flynn because each has proved
more willing than the majority of
their colleagues to interpret the
law in Mr. Trump’s favor in other
politically charged cases, like dis-
putes over congressional subpoe-
nas for his financial records and
whether Congress may see secret
grand-jury evidence from the
Russia investigation.
But the ruling was nevertheless
a surprise because both of them —
and Judge Henderson in particu-
lar — had asked many questions
during oral arguments this monththat seemed to signal skepticism
about short-circuiting Judge Sulli-
van’s review.
A third judge on the panel,
Robert L. Wilkins, a 2014 appoint-
ee of President Barack Obama,
dissented. He said Judge Sullivan
should be permitted to complete
his review of whether the prosecu-
tor’s actions were impermissible
before deciding whether to grant
the motion to dismiss, citing the
unusual circumstances of the Jus-
tice Department’s “abrupt rever-
sal on the facts and the law” and
the opacity of what happened.
In a dissenting opinion, he said
his colleagues had made a series
of mistakes that rendered a “dead
letter” the portion of the rule of
criminal procedure that says
cases may only be dismissed with
a judge’s approval, or “leave of the
court” — at least when the de-
fense and prosecution agree that a
case should be dropped.
Instead, he argued, the law re-
quires that Judge Sullivan be per-
mitted to rule — and if Mr. Flynn
and the Justice Department do
not like what he decides, they canthen appeal.
“The District Court must be giv-
en a reasonable opportunity to
consider and hold a hearing on the
government’s request to ensure
that it is not clearly contrary to the
public interest,” he wrote. “I there-
fore dissent.”
Mr. Trump fired Mr. Flynn in
early 2017 for lying to Vice Presi-
dent Mike Pence and other col-
leagues about what he and the
Russian ambassador discussed in
December 2016. After realizing
that Mr. Flynn was lying to his col-
leagues about the calls, the F.B.I.
questioned him on Jan. 24, 2017,
and he again falsely denied what
they had discussed.
Mr. Flynn later struck a deal
with prosecutors working for the
special counsel, Robert S. Mueller
III, to cooperate and plead guilty
to one count of making a false
statement to the F.B.I. agents. The
deal would resolve his liability for
that crime as well as for failing to
register as a paid foreign agent of
Turkey in 2016 and then signing
forms in 2017 lying about the na-
ture of that work.
But after Mr. Flynn twice
pleaded guilty, he switched last
year to a new defense lawyer —
Ms. Powell — who began accusing
the F.B.I. and prosecutors of mis-
conduct. After Judge Sullivan re-
jected her accusations as un-
founded late last year, Mr. Flynn
sought to withdraw his guilty plea.
Mr. Barr then assigned an outside
prosecutor to scour Mr. Flynn’s
case file, turning over internal
documents showing that the F.B.I.
was aggressive in decisions relat-
ed to questioning him.
Among other things, the docu-
ments showed that the F.B.I. had
decided to close an investigation
into whether Mr. Flynn was a Rus-
sian agent before the issue of his
calls with the Russian ambassa-
dor arose, at which point it used
the fact that the inquiry remained
open to interview him about the
new concern. They also showed
that James B. Comey, then the
F.B.I. director, violated bureau-
cratic protocol when he unilater-
ally sent agents to question Mr.
Flynn, amid unfinished delibera-
tions with the acting attorney gen-
eral about how to do it.Ms. Powell used those docu-
ments to renew her allegations
that law enforcement officials rail-
roaded her client, even as the
president indicated that he was
considering pardoning Mr. Flynn.
But in May, Mr. Barr intervened
again, directing a prosecutor to
seek to dismiss the case with prej-
udice — meaning it could not be
refiled by the Justice Department
under any future administration
— on the theory that Mr. Flynn’s
lies to the F.B.I. were not “ma-
terial” to any legitimate investiga-
tion.
Mr. Barr’s move was widely
seen as extraordinary and a break
with the Justice Department’s ap-
proach in cases not involving apresidential favorite, fueling accu-
sations of politicization. In partic-
ular, legal experts broadly dis-
puted his notion that the false
statements were immaterial,
since they bore on the broader
counterintelligence investigation
into whether Trump campaign of-
ficials had coordinated with Rus-
sia’s 2016 election interference.
The outsider whom Judge Sulli-
van had appointed to critique the
Justice Department motion —
John Gleeson, a former federal
judge — had argued that its stated
reasons for dropping the case
were baseless and a “pretext” for
an illegitimate political interven-
tion on behalf of a presidential fa-
vorite. He urged Judge Sullivan to
instead sentence Mr. Flynn.
The Justice Department and
Ms. Powell have rejected that cri-
tique, arguing that dismissal of
the case was warranted on the
facts and that Judge Sullivan had
no authority to question the exec-
utive branch’s decision not to
press forward with a prosecution.
Mr. Gleeson had been due to file a
response to those rebuttals on
Wednesday before Judge Sullivan
suspended the proceedings.A surprise 2-to-1 ruling
could face further
judicial review.
Katie Benner contributed report-
ing.
Divided Appellate Panel Orders the Dismissal of the Case Against Flynn
From Page AMichael T. Flynn, the former national security adviser, twice pleaded guilty to lying to the F.B.I.BRENDAN SMIALOWSKI/AGENCE FRANCE-PRESSE — GETTY IMAGESTwo Justice Department offi-
cials recounted to Congress in
stinging detail on Wednesday how
political appointees had inter-
vened in criminal and antitrust
cases to advance the personal in-
terests of President Trump and
Attorney General William P. Barr.
Aaron S.J. Zelinsky, a prosecu-
tor who worked on the Russia in-
vestigation, told the House Judi-
ciary Committee that senior law
enforcement officials had stepped
in to overrule career prosecutors
and seek a more lenient prison
sentence for Mr. Trump’s longtime
friend Roger J. Stone Jr. “because
of politics.”
“In the United States of Amer-
ica, we do not prosecute people
based on politics, and we don’t cut
them a break based on politics,”
said Mr. Zelinsky, who testified by
video because of the coronavirus
pandemic. “But that wasn’t what
happened here. Roger Stone was
treated differently because of poli-
tics.”
John W. Elias, a senior career
official in the antitrust division,
charged that his supervisors im-
properly used their powers to in-
vestigate the marijuana industry
and a deal between California and
four major automakers at the be-
hest of Mr. Barr. He likened their
efforts to burdensome har-
assment meant to punish compa-
nies for decisions the attorney
general and the president op-
posed.
“Personal dislike of the indus-
try is not a valid basis upon which
to ground an antitrust investiga-
tion,” Mr. Elias said of the
cannabis cases.
The two accounts painted a
damning portrait of the Justice
Department under Mr. Barr, made
all the more remarkable given
that the witnesses were both still
department employees. They
could increase pressure on Mr.
Barr to further explain decisions
related to criminal cases involving
Mr. Trump’s associates and the
abrupt firing of the top federal
prosecutor in Manhattan, who
had overseen some of the investi-
gations into Trump allies.
Not long after the hearing got
underway, the Justice Depart-
ment announced that Mr. Barr
had agreed to appear himself be-
fore the panel on July 28. Demo-
crats had been threatening to is-
sue a subpoena for his appear-
ance. Seeking to further increase
pressure on the attorney general,
Representative Jerrold Nadler,
Democrat of New York and the
panel’s chairman, told reporters
after the hearing that the commit-
tee “may very well” pursue im-
peachment proceedings against
Mr. Barr — a highly unlikely out-
come given the political reality of
a fast-approaching election.
During the hearing, lawmakers
spent more time trying to argue
divergent political points about
Mr. Barr, Mr. Trump and the inves-
tigations that have hung over his
presidency than they did eliciting
facts about the Justice Depart-
ment from either witness.
“These are merely the symp-
toms of an underlying disease,”
Mr. Nadler said in opening re-
marks. “The sickness that we
must address is Mr. Barr’s use of
the Department of Justice as a
weapon to serve the president’s
petty, private interests.”
Democrats turned frequently to
a third witness, Donald B. Ayer,
who was deputy attorney general
under President George Bush and
warned that under Mr. Barr, the
country was “on the way to some-
thing far worse than Watergate.”
Republicans mounted an ag-
gressive defense of Mr. Barr, rely-
ing on their witness, Michael B.
Mukasey, who was attorney gen-
eral under President George W.
Bush, to try to deflate Democrats’
arguments.
“The politics was in the previ-
ous administration,” said Repre-
sentative Jim Jordan of Ohio, the
top committee Republican. “Bill
Barr is doing the Lord’s work try-
ing to clean it up so that it doesn’t
happen again.”
Republicans worked with the
Justice Department to undermine
the credibility of Mr. Zelinsky and
Mr. Elias, who they pointed out
had previously sought an assign-
ment working with Democrats on
the committee.
A department spokeswoman,
Kerri Kupec, said in a statement
that Mr. Barr determined that the
sentencing recommendation for
Mr. Stone was “excessive and in-
consistent with similar cases.”
She said Mr. Barr did not discuss
intervening in the case with the
president or anyone at the White
House. And she added that Mr.
Zelinsky’s testimony was “based
on his own interpretation of
events and hearsay (at best), not
firsthand knowledge.”
Mr. Zelinsky was among four
career prosecutors who withdrewin protest from the Stone case af-
ter political appointees overrode
their recommendation that Mr.
Stone receive seven to nine years
in prison, in line with standard
sentencing guidelines.
Mr. Stone had been convicted of
committing seven felonies to im-
pede a congressional inquiry that
threatened Mr. Trump. Mr. Zelin-
sky described a fraught battle be-
tween the career prosecutors
working the case and their superi-
ors that spilled into public the day
after prosecutors made their re-
quest, when Mr. Trump attacked it
on Twitter as unjust.
Later that day, the department
submitted a new, more lenient rec-
ommendation to the judge decid-
ing what punishment to impose.
Mr. Zelinsky testified that su-
pervisors had openly discussed
the intervention to shorten the
recommendation as motivated by
“political reasons” even though
one supervisor agreed that doing
so “was unethical and wrong.” He
said they also pressured him to
mischaracterize trial testimony
and play down Mr. Stone’s miscon-
duct so the department could rec-
ommend a lighter sentence.
Days before the intervention,
Mr. Barr had maneuvered the
Senate-confirmed U.S. attorney
for the District of Columbia, Jessie
K. Liu, out of her role and tempo-
rarily installed in her place a close
aide from his own office, TimothyShea.
Mr. Zelinsky said that he was
told that Mr. Shea “was receiving
heavy pressure from the highest
levels of the Department of Jus-
tice” and complied because he
was “afraid of” Mr. Trump. At one
point, he said, a supervisor in-
structed him and other line pros-
ecutors that they could be fired if
they did not comply.
Under questioning by Mr. Jor-
dan, Mr. Zelinsky identified J.P.
Cooney, the chief of the fraud and
public corruption section in the
U.S. attorney’s office for the Dis-
trict of Columbia, as one of the su-
pervisors who told him what was
happening, but said there were at
least two others. Democrats must
now decide whether to try to seek
testimony from Mr. Cooney.
Mr. Stone was ultimately sen-
tenced to 40 months in prison and
ordered to begin serving is sen-
tence by June 30. He has asked a
judge to grant him a two-month
reprieve because of the pandemic,
and on Wednesday the judge or-
dered Justice Department offi-
cials to report to her on its policies
for dealing with such requests.
Mr. Elias’s account of the an-
titrust division more directly tied
what he viewed as improper ac-
tions by Mr. Barr.
“At the direction of Attorney
General Barr, the antitrust divi-
sion launched 10 full-scale re-
views of merger activity takingplace in the marijuana, or
cannabis, industry” because the
attorney general “did not like the
nature of their underlying busi-
ness,” Mr. Elias said in written tes-
timony.
Mr. Elias also said that the de-
partment began a review of four
automakers the day after Mr.
Trump said on Twitter that he was
enraged by the news that the com-
panies would adhere to higher fuel
emissions standards than the fed-
eral government demands.
Under questioning by Repre-
sentative David Cicilline, Demo-
crat of Rhode Island and chair-
man of the panel’s antitrust sub-
committee, Mr. Elias said he was
“not aware” of any evidence at the
time that the investigation would
have served the public, and that it
was clear throughout that the au-
tomakers “had clear legal de-
fenses for what they were doing.”
In Mr. Elias’s account, the mari-
juana industry reviews consumed
the antitrust division, making up
nearly a third of all of its cases in
the fiscal year that ended in Sep-
tember. He said that staff objected
to the numerous requests for in-
formation that the department
sent to the companies, in large
part because they were seen as
harassing and burdensome.
Mr. Elias, who served as chief of
staff to Makan Delrahim, the head
of the antitrust division, said that
during a meeting in September,Mr. Delrahim “acknowledged at
an all-staff meeting that the
cannabis industry is unpopular
‘on the fifth floor,’ a reference to
Attorney General Barr’s offices.”
The department’s Office of Pro-
fessional Responsibility investi-
gated Mr. Elias’s concerns about
the reviews of mergers in the
cannabis industry and deter-
mined that the division “acted rea-
sonably and appropriately,” ac-
cording to an email sent to the di-
vision and obtained by The New
York Times.
The office also found that given
the “unique challenge” that the
nascent cannabis industry posed
for federal and state regulators,
the department reasonably
sought out additional information
from the industry.
Republicans drew heavily on
that report to undercut his ac-
count. In defending Mr. Barr, they
also frequently cited a ruling on
Wednesday by a divided appeals
court panel that ordered the dis-
missal of the case against Michael
T. Flynn, Mr. Trump’s former na-
tional security adviser. The ruling
could be appealed.
Mr. Barr had ordered that case
dropped last month even though
Mr. Flynn had twice pleaded
guilty to lying to the F.B.I. about
phone calls with the Russian am-
bassador — another move that
critics of Mr. Barr have portrayed
as favoritism to a presidential ally.In Blunt House Testimony,
Officials Say Politics Drove
Decisions on Barr’s Watch
This article is by Nicholas Fandos,
Katie Bennerand Charlie Savage.
Aaron S. J. Zelinsky, onscreen, testified that senior officials treated a longtime friend of the president differently “because of politics.”ANNA MONEYMAKER FOR THE NEW YORK TIMESSharon LaFraniere contributed re-
porting.