This week, in a federal courtroom only blocks away from demonstrators protesting the killing of George Floyd, federal judges will hear oral arguments in the case against President Trump’s former national security advisor, Michael Flynn. The case was filed by Flynn in federal appeals court after the Justice Department’s request to dismiss its criminal case against Flynn wasn’t immediately granted by the presiding judge. The Flynn case is at its core about the rule of law versus the law of the ruler.
Dozens of lawyers from across the country have filed briefs in the case, including our organization, Lawyers Defending American Democracy. At issue are fundamental questions: Is the executive branch allowed to do whatever it wants — including act in bad faith — without any oversight from the courts? Or, as we argue, does the law apply to everyone, even the attorney general of the United States? The case turns on a federal law that requires the permission of a court for the government to drop charges against a defendant. Flynn was awaiting sentencing after pleading guilty — twice — to lying to the FBI when the new attorney general, Bill Barr, took over the case.
Within days, the lead prosecutor suddenly resigned, and his replacement quickly appeared in court to tell the judge the government now wanted to drop the charges against Flynn. It all looks fishy, especially given the president’s years of statements and tweets that he wanted Flynn exonerated. After the judge decided he wanted to look into it, Flynn ran to a federal appeals court. There, he demanded that the court put a stop to the inquiry and order the judge to dismiss the case. That’s when the briefs started coming in.
On one side are a series of briefs filed by Republican legislators, former attorney general Ed Meese, and former special counsel Ken Starr. They argue that the Flynn case should be dismissed because the power of the executive branch is supreme, unitary, and not subject to challenge by the courts.
On the other side are lawyers — including ourselves — arguing that the law, decades of precedent, and basic fairness require that the case shouldn’t be dropped. They argue that, given evidence that the government’s actions aren’t on the level, the role of the courts is to maintain the independence of the judiciary by keeping everyone honest.
The arguments put forward by Meese, Starr, and their Republican counterparts in Congress imagine a very different America. In their America, President Nixon’s statement that “if the President does it, it’s not illegal” would be the law of the land. It’s a consistent theme running through the Trump administration — which has repeatedly ignored lawful subpoenas from Congress, has illegally deployed paramilitary forces to attack and threaten peaceful protestors, and has threatened the administration of the November elections. The lawless antics of the Trump administration aren’t just Trump being Trump. Rather, they reflect a philosophy of government at odds with the 244-year history of our Republic.
Trump could pardon Flynn and get the result he is trying to palm off on federal courts. But it’s clear he and his supporters want something much more than the exoneration of Michael Flynn. They want a court to create a fundamental reordering of the power structure of our country.
The Flynn case is the front line of a battle for the soul of America. His fate will seal our own.
Evan Falchuk is an entrepreneur, attorney, and coauthor of the briefs filed by Lawyers Defending American Democracy. Scott Harshbarger is the former attorney general of Massachusetts and cofounder of Lawyers Defending American Democracy.