Judging FBI Conduct
The D.C. Circuit becomes the first court to acknowledge the FBI’s 2016 abuse.
House Judiciary Committee Democrats were back at their “politicized Justice Department” theme this week, calling a disgruntled former lieutenant of special counsel Robert Mueller to accuse the department of giving special treatment to President Trump’s allies. Too bad the testimony came on the very day a federal court confirmed that Mr. Mueller’s team and the Federal Bureau of Investigation engaged in misconduct.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit did so via an order requiring Judge Emmet Sullivan to dismiss charges against former national security adviser Mike Flynn. Most of the focus has been on the legal merits of the ruling. Judge Neomi Rao’s compelling opinion rebuked Judge Sullivan for ignoring the department’s call to drop the case and instead setting himself up as both prosecutor and jury. This was a win for the separation of powers, even as it was a step toward justice for Mr. Flynn.
Largely overlooked was the decision’s rebuke of the FBI and the Mueller team. The D.C. Circuit became the first federal court to acknowledge the misconduct that Attorney General William Barr is trying to bring to light. Most of the courts that oversaw Mr. Mueller’s prosecutions were asked to do no more than rubber-stamp a plea deal or sign off on a jury verdict. But Mr. Flynn, backed by tenacious lawyer Sidney Powell, fought the charges—forcing the Justice Department to review its actions, acknowledge its bad acts, and move to dismiss its case. Democrats and the press cast this outcome as evidence of Mr. Barr’s “politicization.” The circuit court begs to differ.
The Justice Department’s credibility was at stake here. Judge Sullivan bought into the same Democratic conspiracy theories, which is why he refused Justice’s motion to dismiss and appointed retired judge John Gleeson to act as shadow prosecutor. He argued the Justice Department wasn’t entitled to the usual “presumption of regularity.” And if the circuit judges thought there was anything to claims that Mr. Barr was playing political favorites, it could have allowed the process to continue.
Instead they bluntly noted that there was no “legitimate basis” to question the department’s behavior. They even slapped Mr. Gleeson for relying on “news stories, tweets and other facts outside the record.” By contrast, Judge Rao’s opinion notes: “The government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt.” It points out that this includes “evidence of misconduct by the Federal Bureau of Investigation.” It finishes by noting that each government branch must be encouraged to “self correct when it errs.”
The court’s conclusion is obvious. All it had to do was look at the voluminous evidence the Justice Department supplied. Its briefs proved the FBI had improperly pursued Mr. Flynn, keeping open an investigation that produced no evidence, ginning up a “violation” of the seldom-enforced Logan Act, sandbagging Mr. Flynn with an interview that had no “legitimate investigative basis.” It even provided new FBI notes this week suggesting that then-President Obama and Vice President Joe Biden were improperly engaged in the investigation. The department’s filings showed that the Mueller team had consistently denied defense attorneys exculpatory information. And it explained the straightforward process by which it had reached its decision to withdraw: Mr. Barr in February appointed veteran U.S. Attorney Jeff Jensen to review the case, and in May Mr. Jensen concluded dismissal was “the proper and just course.”