The Weekly Sift

Even by the standards of a historically corrupt administration, this week stood out.

Corruption is an ongoing story in the Trump administration, dating way back to Trump’s refusal to release his tax returns or distance himself from his business empire. The Trump International Hotel, whose building is rented from the federal government, places Trump in the position of being both the renter and the landlord. His cabinet has been riddled with scandal and conflicts of interest. His impeachment by the House was essentially a corruption story, as he tried to extort a personal favor from Ukraine in exchange for doing his duty as president. And as the Senate considered his fate, he raised millions of dollars to re-elect the Republican senators standing in judgement over him.

This week, though, at least three serious corruption stories were current at the same time:

• The Justice Department dropped its prosecution of former national security adviser Michael Flynn, who had pleaded guilty to lying to the FBI.
• The recently-deposed director of BARDA (Biomedical Advanced Research and Development Authority) filed a whistleblower complaint alleging “cronyism” and political pressure to ignore the scientific merit of proposals — including (but not exclusively) proposals related to the current pandemic.
• Tomorrow the Supreme Court will hear Trump’s claim of “temporary absolute immunity” that shields him and his business empire and business associates from any form of investigation.

But at the same time we can’t lose sight of the constant low-level corruption we’ve gotten used to. Like this tweet, in which Trump uses the same Twitter account in which he sometimes announces major government policy changes or personnel moves to promote the re-opening of his Los Angeles golf club. Or putting a crony in charge of the Post Office, which he has long been trying to pressure into raising rates on Amazon, as a way to strike back at Jeff Bezos for owning the Washington Post, which Trump feels mistreats him. Stuff like that happens almost every week.

Flynn. For months we’ve been expecting Trump to pardon Michael Flynn, his first National Security Adviser, who lasted only two weeks in the job before resigning; he had lied to Vice President Pence and to the FBI’s counter-intelligence investigation about his conversations with the Russian ambassador. Flynn pleaded guilty to the charge, and also acknowledged being an unregistered foreign agent while he was working as an adviser to Trump’s 2016 campaign. (Flynn famously led a chant of “Lock her up!” at the Republican Convention.) He later sought to withdraw his guilty plea and attack the Mueller investigation that indicted him. The judge had not yet ruled on that motion.

Pardoning Flynn would tie up one of the remaining loose ends in Trump’s obstruction of justice in the Mueller probe. But now Trump may not have to commit that particular impeachable offense, because Attorney General Bill Barr is trying to accomplish the same thing: Thursday the Justice Department has asked the judge to drop the indictment of Flynn, despite his guilty plea. Former Solicitor General Neal Katyal and fellow Georgetown law professor Joshua Geltzer write:

The Justice Department’s new position isn’t that Mr. Flynn didn’t lie — that couldn’t be its position, because he did lie, and he admitted in federal court that he lied. Instead, the new filing argues that it was wrong for the F.B.I. to interview him in the first place. Look carefully at who the villain becomes in that narrative: not Mr. Flynn for lying, but the F.B.I. for asking the questions to which he lied in response.

Barr’s move is worse than a pardon, as Jeffrey Toobin explains in the New Yorker:

A pardon would have been outrageous but within Presidential prerogative. Instead, the Justice Department manufactured a phony pretext to pretend that Flynn’s guilty plea was illegitimate.

The pretext is based on the recently released documents concerning the FBI’s preparation for the interview in which Flynn lied, which it claims shows the agents planning to entrap Flynn. Further, it claims that the investigation under which Flynn was interviewed — the FBI’s counter-intelligence investigation into possible collusion between the Russian government and the Trump campaign — had already concluded. The closing communication had been written, but not yet approved.

Consequently, the Justice Department motion holds

Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation.

This contention was disputed in the NYT Sunday by Mary McCord, who had been acting assistant attorney general for national security at the time. The Justice Department’s motion is in part based on an interview with her. She claims it has “twisted my words”.

But the report of my interview is no support for Mr. Barr’s dismissal of the Flynn case. It does not suggest that the F.B.I. had no counterintelligence reason for investigating Mr. Flynn. It does not suggest that the F.B.I.’s interview of Mr. Flynn — which led to the false-statements charge — was unlawful or unjustified. It does not support that Mr. Flynn’s false statements were not material. And it does not support the Justice Department’s assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, “would not serve the interests of justice.”

Trying to dismiss the Flynn indictment echoes Barr’s previous corrupt move: his interference a few months ago in the sentencing of another obstruction-of-justice loose end, Roger Stone. (Interim US attorney for D.C. Timothy Shea signed off on both.)

The case was thrown into disarray last week when Attorney General William P. Barr overruled a sentencing recommendation by four career prosecutors, who then quit the case in protest. Mr. Barr said he decided on his own that the prosecutors’ request for a prison term of seven to nine years was too harsh. But his move coincided with Mr. Trump’s public complaints about the prosecutors’ recommendation and elicited widespread criticism that he had bent to the president’s will.

Similarly here, lead prosecutor Brandon Van Grack withdrew from the case Thursday, apparently so that he would not have to submit the request to withdraw Flynn’s indictment.

What happens next in the Flynn case is not clear. It’s up to the judge whether or not to accept Barr’s motion to dismiss, but ultimately what else can he do? If he allows Flynn to withdraw his guilty plea, then there would have to be a trial. But he can’t force the Justice Department to mount a prosecution.

The judge could hold a hearing on the dismissal motion, including asking Van Grack why he withdrew rather than present it. That might embarrass the government, but wouldn’t convict Flynn. He could dismiss the indictment “without prejudice”, which could allow a Biden Justice Department to pursue the case next year. Barr is asking for a dismissal “with prejudice”, which would prevent any future Justice Department from restarting the case.

Meanwhile, both Trump and Barr are hinting that reprisals are coming against the people who investigated the Trump/Russia connection. Barr said:

I mean, it’s not going to be the end of it. We’re going to get to the bottom of what happened. … We also are seeing if there are people who violated the law and should be brought to justice, and that’s what we have our eye on

and Trump said:

I wouldn’t be surprised if you see a lot of things happen over the next number of weeks. This is just one piece of a very dishonest puzzle. … [Flynn] was targeted in order to try and take down a president. I hope a big price is going to be paid. A big price should be paid. … It’s treason.

Now, Trump says a lot of things that never go anywhere, they just sound good to him in the moment. But he could also be planning some kind of show trial against someone like James Comey.

I’ll give the last word to Steven Hall, the retired CIA Chief of Russian Operations:

I’m no lawyer, so I won’t comment on Flynn from that perspective. But I was an intel officer, and I can tell you there are serious counterintelligence issues. Flynn should never have a clearance again.

And another thing: I’ve met with many foreign intel chiefs, most of whom at one point or another expressed admiration for American rule of law. Some begrudgingly. It’s going to be much harder now to make the case for that, and as a result, the US has been weakened.

Dr. Bright’s complaint. The part of Dr. Rick Bright’s whistleblower complaint that got headlines was the conflict over hydroxychloroquine that seems to have been the immediate cause of Bright losing his directorship. But the complaint is worth reading in full as a horror story. The part that I found most agonizing happened in January, as Bright tried to get his superiors (Trump political appointees) interested in procuring more N-95 masks.

Secretary Azar and Dr. Kadlec responded with surprise at Dr. Bright’s dire predictions and urgency, and asserted that the United States would be able to contain the virus and keep it out of the United States. Secretary Azar further indicated that the CDC would look at the issue of travel bans to keep the virus contained. Dr. Bright responded that virus “might already be here. We just don’t have the tests to know one way or the other.” Dr. Bright’s comments were met with skepticism and were clearly not welcome. … As a result of the critical concerns raised by Dr. Bright in the January 23, 2020, meeting with Secretary Azar, HHS leadership excluded him from the next COVID-19 meeting, even though the agenda listed Dr. Bright as a participant.

He had similar frustrations over Covid-19 tests, swabs, reagents, syringes, and just about everything else that we now wish the government had prepared better. But the administration had bet all its chips on keeping the virus out of the country, and didn’t want to draw attention to the possibility that it might get in.

There is, of course, nothing inherently corrupt about lack of foresight and bad decisions, even if those bad decisions get many people killed or infect healthcare workers with a deadly virus. But Bright also tells a series of stories in which some drug company employs John Cherici as a consultant, and then Clerici deals directly with Assistant Secretary for Preparedness and Response Kadlec, who puts pressure on BARDA to ignore the recommendations of its scientists.

from approximately the spring of 2017 through the date of his involuntary removal as Director of BARDA, HHS leadership pressured Dr. Bright and BARDA to ignore expert recommendations and instead to award lucrative contracts based on political connections and cronyism. Dr. Bright repeatedly clashed with Dr. Kadlec and other HHS leaders about the outsized role played by John Clerici, an industry consultant to pharmaceutical companies with a longstanding connection to Dr. Kadlec, in the award of government contracts.

Bright’s complaint does not explain exactly what the deal with hydroxychloroquine was: Did somebody stand to make a lot of money, or was Trump’s prestige the thing at stake? (Bright may not know.) But for whatever reason, Bright was under pressure to sign off on a protocol that would make hydroxychloroquine “available for the treatment of COVID-19 outside a hospital setting and without close physician supervision” — despite the lack of scientific evidence of the drug’s effectiveness and concerns about its safety.

Absolute immunity. Remember Stormy Daniels? That whole scandal seems almost quaint now, being about nothing more serious than illicit sex and campaign finance laws. No deaths, no undermining of US foreign policy or the rule of law, no hundreds of millions of dollars, no Russians choosing our president for us. But Michael Cohen is in jail, in part because his pay-off of Daniels on Trump’s behalf constituted an illegal campaign contribution.

An issue that was never resolved in Cohen’s trial is whether the Trump Organization reimbursed Cohen for those illegal campaign contributions, and how it reported those expenses on its tax filings. The Manhattan District Attorney Cyrus Vance Jr., a county official, appears to be investigating whether any New York state laws were violated. In the course of his investigation, he subpoenaed eight years of Trump’s personal and corporate tax returns. The subpoena was issued not to Trump, but to his accountants.

Trump has sued to block that subpoena, arguing not only that he is personally immune from indictment under state as well as federal laws, but that he cannot be investigated either. Law professors Claire O. Finkelstein and Richard W. Painter explain in the New York Times:

Mr. Trump claims that a president has “temporary absolute immunity,” meaning he cannot be criminally investigated while in office. Indeed, in oral argument before the U.S. Court of Appeals for the Second Circuit in New York, his lawyers said that if the president were to shoot someone on Fifth Avenue, he could not be investigated or indicted until after he left office.

Apparently, this immunity also extends to any underlings at the Trump Organization who might have fudged the business records, as well as to his accountants.

Finkelstein and Painter do a pretty good job laying out how Trump’s claims contradict what the Supreme Court held in the Nixon tapes case and in the Paul Jones case. George Conway (Kellyanne’s husband) wrote of the briefs in the Paula Jones case. He explains that while a President may have a variety of immunities when he is acting in his official capacity, what he does as a private individual — like pay off troublesome porn stars before taking office — is not protected.

The law seems clear, so the corruption question moves to the Supreme Court, which begins hearing the case tomorrow: Will its five partisan Republican justices enforce the law against a Republican president? Or will they find some way to twist the law to give him what he wants? If they do, Finkelstein and Painter warn, the Republic is in real trouble.

If the justices endorse this extreme view, they will make it impossible to hold this president, and all future presidents, answerable in courts for their actions.

Conway seems confident that the Court will “teach the lesson” that the President is not above the law. But even if it doesn’t, I’m not that worried about future presidents, at least not if they’re Democrats. The five Republican justices are perfectly capable of reversing themselves once a Democrat takes office.