Losing the rule of law

Never before have I so despaired for the rule of law in the United States. The decision of the U.S. Department of Justice to withdraw the prosecution of Michael Flynn, after he has pled guilty, is the latest example of Attorney General William Barr subordinating law to President Donald Trump's political will. The cases being argued in the Supreme Court on Tuesday, concerning President Trump's effort to quash subpoenas of financial institutions, will answer the profoundly important question of whether the Republican-appointed justices are willing to stand up to Donald Trump and follow the rule of law.

The core of the rule of law is that no one, not even the president, is above the law. Yet time and again, Attorney General Barr has made clear that his priority is not upholding the law, but rather protecting Trump. Last summer, Barr blatantly misstated the conclusions of Robert Mueller's report. Weeks before Mueller's report was made public, Barr stated that Mueller found no collusion or obstruction of justice. Mueller's report, as Mueller himself pointed out, came to exactly the opposite conclusion.

Roger Stone, a close ally of President Trump, was convicted of seven counts, including witness tampering and lying to investigators. On Feb. 10, federal prosecutors requested that Stone be sentenced to seven to nine years in prison. That night, about midnight, Trump sent a tweet and characterized the sentencing recommendation as a "horrible and very unfair situation," and said, "Cannot allow this miscarriage of justice!" The next day, the Department of Justice filed a revised sentencing memorandum, saying the initial recommendation could be "considered excessive and unwarranted under the circumstances."

All four of the assistant United States attorneys who were prosecuting the case -- Jonathan Kravis, Aaron Zelinsky, Adam Jed and Michael Marando -- withdrew from the case, with Kravis resigning from the U.S. Attorney's Office. The next day, President Trump praised Barr for "taking charge" of the case and thanked Justice Department officials for recommending a lesser sentence than was proposed by the prosecutors who tried the case.

But even for a Justice Department that has subverted law to pleasing the president, the decision to withdraw the prosecution of Michael Flynn is a new low. In December 2016, Flynn reached out to the Russian ambassador and sought to influence Russia's response to the United States sanctions for Russian interference in the presidential election. Flynn also reached out in an attempt to quash a U.N. resolution on Israeli settlements. These actions violated the federal Logan Act, which make a crime for a private citizen to negotiate with foreign governments having a dispute with the United States.

Flynn lied about these contacts to Vice President Mike Pence, which caused Flynn to be fired as national security advisor. Flynn repeated his lies to FBI agents. Lying to federal law enforcement about a matter material to a criminal investigation is a federal crime. Flynn also was investigated for improperly taking money from foreign governments. He pleaded guilty to "willfully and knowingly" making "false, fictitious and fraudulent statements" to the FBI regarding conversations with Russia's ambassador. At his hearing Flynn stated, "I recognize that the actions I acknowledged in court today were wrong, and, through my faith in God, I am working to set things right."

On Thursday, the Justice Department filed a motion to dismiss the charges against Flynn. The motion submitted to the judge claims that the FBI interview was "untethered to, and unjustified by, the FBI's counterintelligence investigation into Mr. Flynn" and that the interview was "conducted without any legitimate investigative basis." That is nonsense. There was every reason to investigate Russian tampering in the 2016 election and what role the Trump campaign played. It was appropriate and necessary to question Flynn given his role in working for Trump.

Flynn committed a crime and pled guilty to it. The Justice Department's attempt to end the prosecution is nothing but the Trump administration again putting politics above the law. It is simply an attempt to protect President Trump from pardoning to Flynn, which was widely predicted from the time of the guilty plea. Astoundingly, on Sunday, Vice President Pence said that Flynn would be welcome to come back to work in the Trump administration.

Amidst all of this, the Supreme Court on Tuesday will hear three cases that involve whether records concerning the president are subject to subpoena. The issue in Trump v. Vance is a state court grand jury subpoena for eight years of Trump's business and personal records in connection with an investigation of hush money that was paid during the 2016 to Stormy Daniels and Karen McDougal. Trump sued in federal court to keep his accounting firm, Mazars USA, from turning over the financial records. The federal district court ruled against him and the 2nd U.S. Circuit Court of Appeals affirmed.

A second case, Trump v. Mazars USA, involves a subpoena by the House Oversight and Reform Committee, which is investigating the hush money payments, Trump's financial involvement with Russian companies, and the accuracy of financial statements he made to obtain loans and reduce taxes. The federal district court ruled against Trump and the U.S. Court of Appeals for the D.C. Circuit affirmed.

The final case, Trump v. Deutsche Bank AG and Capital One, involves subpoenas from the House Financial Services and Intelligence Committees that were directed at two financial institutions that did business with Trump, Deutsche Bank and Capital One. Once more Trump went to court to block the subpoenas, but lost in both the district court and the 2nd Circuit.

If the court rules in favor of Trump, it will be effectively saying that the president is above the law, even for actions that occurred prior to taking office. The checks and balances that are integral to separation of powers under the Constitution will be irreparably damaged by according a president such broad immunity from the law.

So far, the Supreme Court often has refused to stand up to the Trump administration. In Trump v. Hawaii in 2018, the court 5-4 with Chief Justice John Roberts writing for the conservative majority, upheld President Trump's travel ban despite overwhelming evidence that it was motivated by a desire to ban Muslims from the country. The court, in 5-4 rulings, kept lower courts from stopping President Trump's clearly illegal actions in diverting federal funds to build the border wall and to change the law regarding asylum.

Many have said that Chief Justice Roberts cares greatly about the Supreme Court's credibility. The hope must be that he realizes that ruling in favor of the Trump administration in these subpoena cases would make the court seem highly partisan and be a serious blow to its institutional legitimacy, which would further weaken the checks and balances of the Constitution. But Roberts overall is very conservative and the critical question for 2020 is whether he, or any of the conservative justices, will be willing to say no to Donald Trump.

And if not, what is left of the rule of law and the principle that no one, not even the president is above the law? 