The Flynn Case Isn't Over Until the Judge Says It's Over

By John Gleeson, David O'Neil and Marshall Miller, The Washington Post

14 May 20

 

John Gleeson, one of the co-authors of this piece, is the former prosecutor and federal judge appointed by Judge Emmet G. Sullivan to apparently take charge of the opposition to the Justice Department’s request to drop charges against General Michael Flynn, former National Security advisor.

Flynn twice pleaded guilty to making false statements to the FBI in 2017 in connection with the Mueller investigation.

Both the appointment of Gleeson and the request to drop the charges by the Justice Department are seen as highly unusual by legal experts. – MA/RSN

he Justice Department’s move to dismiss the prosecution of former national security adviser Michael Flynn does not need to be the end of the case — and it shouldn’t be. The Justice Department has made conflicting statements to the federal judge overseeing the case, Emmet G. Sullivan. He has the authority, the tools and the obligation to assess the credibility of the department’s stated reasons for abruptly reversing course.

The department’s motion to dismiss the Flynn case is actually just a request — one that requires “leave of the court” before it is effective. The executive branch has unreviewable authority to decide whether to prosecute a case. But once it secures an indictment, the proceedings necessarily involve the judicial branch. And the law provides that the court — not the executive branch — decides whether an indictment may be dismissed. The responsible exercise of that authority is particularly important here, where a defendant’s plea of guilty has already been accepted. Government motions to dismiss at this stage are virtually unheard of.

Prosecutors deserve a “presumption of regularity” — the benefit of the doubt that they are acting honestly and following the rules. But when the facts suggest they have abused their power, that presumption fades. If prosecutors attempt to dismiss a well-founded prosecution for impermissible or corrupt reasons, the people would be ill-served if a court blindly approved their dismissal request. The independence of the court protects us all when executive-branch decisions smack of impropriety; it also protects the judiciary itself from becoming a party to corruption.

There has been nothing regular about the department’s effort to dismiss the Flynn case. The record reeks of improper political influence. Hours after the career prosecutor abruptly withdrew, the department moved to dismiss the indictment in a filing signed only by an interim U.S. attorney, a former aide to Attorney General William P. Barr whom Barr had installed in the position months before.

The department now says it cannot prove its case. But Flynn had already admitted his guilt to lying to the FBI, and the court had accepted his plea. The purported reasons for the dismissal clash not only with the department’s previous arguments in Flynn’s case — where it assured the court of an important federal interest in punishing Flynn’s dishonesty, an interest it now dismisses as insubstantial — but also with arguments it has routinely made for years in similar cases not involving defendants close to the president. And all of this followed a similarly troubling reversal, also preceded by the withdrawal of career prosecutors, in the sentencing of Roger Stone.

Courts often inquire as to the reasons for a government motion to dismiss, but this is the rare case that requires extra scrutiny, to ensure that, in the Supreme Court’s words, “the waters of justice are not polluted.”

Fortunately, the court has many tools to vindicate the public interest. It can require the career prosecutor to explain why he stepped off the case, as another federal judge recently did when the Trump administration attempted to replace a trial team litigating the politicization of the census. It can appoint an independent attorney to act as a “friend of the court,” ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role. If necessary, the court can hold hearings to resolve factual discrepancies.

And the court could compel the department to reveal the one thing it has thus far refused to show — the actual evidence underlying the prosecution. To help Flynn, the department has made public documents it jealously guards in almost every other case, including confidential memos and internal deliberations. But it has balked at disclosing the transcripts of the very conversations with the Russian ambassador that Flynn admitted he lied about when the FBI interviewed him.

The department once argued that those conversations confirmed Flynn’s guilt. It now claims those conversations were innocuous. By ordering disclosure of the transcripts, the court can empower the American public to judge for itself — and assess why the department is trying to walk away from this important case.

Flynn’s guilt has already been adjudicated. So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing.

Who Is 'Essential' to Our Covid-19 World: A Military Spouse's Perspective on Fighting This Pandemic

By Andrea Mazzarino, TomDispatch

14 May 20

 

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[Note for TomDispatch Readers: Just a reminder that you still have a chance to get a signed, personalized copy of Erik Edstrom’s Un-American: A Soldier’s Reckoning of Our Longest War for a $100 donation to this website ($125 if you live outside the U.S.). His new book offers a vivid reminder of just what America’s twenty-first-century forever wars are all about. Of it, the New York Journal of Books says, “Exceptional... Un-American is most extraordinary because, even after the indoctrination of West Point, Edstrom dared to question some of the decisions and the presence of the U.S. military as invaders not saviors. For a real look at the marketing of and true cost of war, this is a must-read.” To get a sense of it, check out Edstrom’s recent TD piece and then go to our donation page and lend this website a hand in tough times. Tom]

In March, as casualty figures were starting to pile up, he labeled himself a “wartime president.” Almost two months later, with the U.S. having long outstripped every other country on Earth in Covid-19 cases and deaths, a president who believes, above all, that the crucial battle he’s fighting is to remain in the White House in January 2021 has just embraced his version of reelection reality. He’s made a crucial decision. If this country is going to reelect him, the economy had better reopen fast and so he’s opted to label the rest of the inhabitants of this nation “warriors” facing an “invisible” enemy that’s “smart,” “tough,” and harder hitting than the ones that struck this land either at Pearl Harbor on December 7, 1941, or on September 11, 2001. (“There’s never been an attack like this.”) The reasoning behind warriorizing the country in such a fashion isn’t complicated. When it’s wartime and you’re the commander-in-chief, you can send your fellow countrymen, at least those in uniform, into battle -- with death as an obvious possible outcome.

Now, of course, we “warriors” have all been put in uniform and, across the country, like it or not, want it or not, many of us are indeed going to be sent into battle and sacrificed for the future of that commander-in-chief, especially (the odds tell us) those older than 70 and so more prone to death from Covid-19. I’m 75 and suddenly one of those “warriors.” Or put another way, in a world of “essential” workers who, as TomDispatch regular Andrea Mazzarino reports today, are regularly considered too essential not to be sent thoughtlessly to their deaths by that same wartime president, we oldsters are supposed to shoulder our rifles and face the invisible enemy head on. It promises to be a Custer’s last stand for the aged, if not the ages. We are now to be sacrificed as inessential to the “reopening” of the economy and the reelection of Donald J. Trump. Of course, if you’re old and black, then -- truly -- watch out big time. And while you’re at it (and reading Mazzarino’s piece), think for a moment about what’s truly essential to whom in the new coronavirus world.

-Tom Engelhardt, TomDispatch

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hen he first came home, it was tough.” So Aleha, the wife of an airman in Colorado, told me. She was describing her family’s life since her husband, who lives with chronic depression, completed a partial hospitalization program and, in March, along with other members of his unit, entered a pandemic lockdown. He was now spending full days at home with her and their four children, which offered needed family time and rest from the daily rigors of training. Yet the military’s pandemic lockdown had its challenges as well. Aside from weekly online sessions with his therapist (the third the military had assigned him in so many weeks), Aleha was left to provide her husband with needed emotional support, while homeschooling their older children and caring for their toddler.

Her husband, like the other 1.3 million active-duty service members in the United States, faces what most of the rest of the country is facing: orders to stay at home and distance themselves from those outside their households to prevent the spread of the novel coronavirus that has killed more than 82,000 Americans and more than 295,000 people worldwide.

Yet there’s something distinctive about what members of the American military (whose suicide rates now surpass civilian ones) face: the stress posed by the threat of the most literal “front-line service” in these times of endless war and pandemic. They find themselves in uniform in an era of more frequent deployments and longer training days. Even in pre-pandemic times, they needed the support of psychiatrists and therapists like me and of their military community, including commanders whose default approach to mental-health problems has often been to coach them on what not to say to avoid being medically disqualified from duty.

Troops and their families have needed access to supportive social groups, including religious ones, antidepressants and other mood medications, and off-base mental-health providers who can counsel them in a more unbiased way. In many cases, they also need access to inpatient facilities for when the going gets really rough.

In the past months, daily life for our troops and their families has been transformed in previously almost unimaginable ways. For example, many new recruits are now quarantined when they arrive at military bases. Physical training is staggered and conducted in smaller groups. Given bans on movement, military spouses and kids scheduled to relocate (a common enough phenomenon in such a life) or families with a member deployed elsewhere in the world are living in striking states of isolation and uncertainty.  They are increasingly unsure when they will see loved ones again or where they will live or study in the months to come. How starkly Covid-19 restrictions can affect already vulnerable members of the military was highlighted by the suicides of two students at the U.S. Air Force Academy last month. Those deaths came after that school’s leadership decided to place the 1,000 seniors still on campus in single rooms, the equivalent of solitary confinement, for weeks on end to prevent the spread of Covid-19.

It’s striking how little effort our military's high command has put into understanding the effects of national crises on the health of military families. After all, though it’s seldom mentioned, such spouses and other family members have been subject to the same job losses, homeschooling issues, and lack of childcare as other Americans amid a spreading pandemic -- and all of this has only been heightened by the loss of local social connections due to frequent moves.

In addition, as in the society at large, within military communities inequalities abound. The government has deemed both my husband, a naval officer, and Aleha's husband "essential workers." That means my husband must go into the Pentagon a few days a month right now to handle mysterious -- to me, at least -- matters related to our country’s nuclear arsenal. In return for this modest risk to his own and our family’s health, my “essential” husband is otherwise able to watch our kids almost full time while I pursue my work as a mental-health therapist from home. Our privilege in rank and pay places me in a very different position from the spouses of enlisted troops.

Social Distancing in a Mental-Health Crisis

Despite that position of privilege, given my work, I have a strong sense of how this national crisis has deepened existing social inequalities. In 2011, along with Catherine Lutz and Neta Crawford, I co-founded the Costs of War Project, a nonpartisan, multidisciplinary team of academic, health care, and legal experts who continue to analyze the costs of the U.S. decision to respond to the 9/11 attacks with full-scale military action, including the opportunities missed to invest in critical domestic areas like health care. I’m also a therapist who specializes in trauma-focused care for military veterans and their families, refugees, and immigrants to the United States, many of whom have been affected by armed conflicts in their homelands.

In addition, as a Navy spouse and mother of two young children who has completed four military-related moves in the course of my husband’s career as a submariner, I know what social isolation and uncertainty can feel like and how they can affect the human psyche. I’m aware as well that, as the Covid-19 crisis drags on and more troops fall ill, my spouse could be sent back to sea or to one of the many increasingly Covid-19-destabilized places where our military has a presence or is fighting what are increasingly pandemic wars.

And believe me, when you’re alone during a spouse’s deployment, even in the best of times, which these aren’t, the shit can hit the fan remarkably fast. In 2017, for instance, while my husband was at sea and out of contact, I contracted a nasty, vaccine-resistant version of the flu. I was single-parenting two toddlers and found myself Ubering with my children to the ER at three in the morning because I had a fast-rising fever that made walking, let alone lifting a baby, difficult.

A neighbor, the divorced wife of a Navy veteran, left Campbell’s soup on our doorstep but shied away from taking my children long enough for me to get care. This was at a moment when my husband’s ship commander (who could only be described as a “toxic leader”) threatened spouses who frequented anything but command-sanctioned Family Readiness Groups, formed to support troops during deployments. This made it that much less likely that wives like me in that military community would establish friendships strong enough to lead someone to take a chance on helping a sick friend.

If an experience as fleeting and minor as mine felt as trying as it did, then what have the family members of the crew of the aircraft carrier, U.S.S. Theodore Roosevelt, more than 1,000 of whom tested positive for Covid-19 recently, experienced in their moments of need? During my own mini-drama with the flu, I continued to receive emails from the command’s volunteer ombudsperson, herself the wife of an enlisted sailor, reminding me of my “essential role” in national security. Spouses like me were not to even think about writing our husbands concerning our own problems, including illnesses, lest we distress them and so endanger national security. I wonder if the spouses of the infected crew members of the Roosevelt felt similarly “protected” by a naval leadership that refuses to disclose significant information about the well-being of their loved ones, even as they no doubt struggle with the spread of this virus, too.

In our gender- and class-stratified society, you are usually deemed “essential” only when those in power feel they truly need you. The rest of us non-essentials are seldom sufficiently protected, valued, or seen, and in truth that turns out to be the reality for most essentials as well. (If you don’t believe me, just check out the conditions in any meat-processing plant still open in your state.)

It’s no secret anymore that one casualty of our national "war" against this pandemic is a mental-health crisis on a staggering scale. Among therapists like myself, it’s widely known that being in a community where you feel you’re a contributor offers genuine protection when it comes to suicidal urges. Among people I know who work in low-paid staff jobs where social distancing is impossible, the difference between feeling depressed and hopeless and having the energy to get to the next day is often the conviction that you’re appreciated by coworkers and those you are helping.

One way of getting recognition for your struggles at work and elsewhere today is through group therapy and support. I’ve seen this firsthand at the community mental health clinic where I work, while also dealing with veterans struggling with post-traumatic stress disorder. Speaking in face-to-face groups gives you the opportunity to feel supported even as you support others. And in the social-distancing era of Covid-19, because so much communication is nonverbal and Zoom therapy captures only talking heads, such methods may be losing their power.

This makes military spouses, as well as janitors, medical aides, nurses, doctors, and care workers of every sort who must encounter people with health crises on a daily basis, so vital to our current struggle against this virus. They provide medical help, of course, but also deeply needed support at a moment when social distancing has placed on pause many other outlets for it.

The Essential, the Vulnerable, and the Unseen

Much ink has been spilled recently on the heroic nature of such care workers, and for good reason. They’re up against an invisible pathogen and a president who empowers his supporters to shun the advice of medical professionals and scientists -- including his own. A recent image of a masked retired surgeon with a homemade sign (“You have no ‘right’ to put us all at risk. Go home!”) standing in front of a car to register his disagreement with last month’s (largely white) anti-lockdown pro-Trump protests in Richmond, Virginia, catches the essence of this conflict.

I recently spoke with a young woman of color who cried when she saw that very image, because a family member of hers is a cafeteria worker in a military hospital ward treating Covid-19 patients. “People don’t realize how their protests affect my family,” she told me, explaining that they could be susceptible to any wave of Covid-19 infection resulting from such thoughtless protests. Yet none of her family members had either the knowledge, money, or connections to get the best health care, if infected. In an age of growing division between hospitals with ample funding, supplies, and staffing, and those where doctors, driven by a manufactured scarcity, are making arbitrary and discriminatory decisions about who deserves life-saving care, I understand her anguish.

As anti-poverty activist Liz Theoharis has pointed out, many of the tasks most vital to stemming this epidemic are going to be performed by low-paid workers with the least access to decent housing in which to socially distance themselves and to the money and social connections that would link them to the best medical advice. How can this country care for those the powers-that-be deem “essential,” like doctors and military personnel, when we don’t care for those who care for them? Similarly, you would have to include not just therapists like me, who find ourselves supporting an ever-more-isolated, stir-crazy, and stressed-out populace, but also the staff members and janitors who help us and clean our offices.

In the military, you would also have to include spouses homeschooling their kids (including those with special needs) while working or struggling to figure out how to pay their bills. Caring for all such people is important not just because the value of a human being should be absolute, whether you’re essential or not, but because, in this pandemic world of ours, devaluing anyone’s life will have consequences for us all.

The Costs of War, Pandemic-Version

In a recent op-ed, Costs of War Project co-directors Catherine Lutz and Neta Crawford argued that, no matter what President Trump says, we’re not in a “war” against the coronavirus. War did, however, play a crucial role in getting us into this mess.

Congress has allocated an average of $230 billion dollars annually to waging our hopeless wars in Afghanistan and Iraq, while only a microscopic fraction of such moneys have been going into health care and education at home. Costs of War Project economist Heidi Garrett-Peltier showed that, had this country invested the same amount of money in health care rather than its forever wars, twice the number of jobs would have been created and that’s no small thing at a moment when the U.S. faces a dire shortage of doctors -- more than 9,000 health-care workers have already been infected by Covid-19 -- and physicians are being called out of retirement in order to serve.

If there’s one thing the Costs of War Project has made clear, it’s this: war is about the destruction of the very institutions it purports to protect. At a time when health care, education, and other social services, including food aid, are so badly needed, why is the military still being funded at astronomical levels, while other agencies are gutted?

My husband and I sometimes argue about the designation “essential” worker. How can he be called “essential” when we spend most of our days together on our Maryland farm as he collects his Department of Defense salary? He always reminds me that redundancy in government allows us to function under the worst of circumstances. If, for instance, Pentagon officials responsible for dealing with threats to our nuclear arsenal were to fall ill en masse or be killed in a sudden attack, others would be available to take their place.

Yet the obvious corollary to that argument has certainly not been applied to our health care infrastructure in these years and we’re paying for that today. If the president had not gutted the Department of Health and Human Services, perhaps there would have been enough people to ensure that our federal stockpiles of ventilators were properly maintained in preparation for a crisis we knew was coming. If the pandemic task force created under President Obama hadn’t been disbanded, perhaps we would have been better prepared for the spread of Covid-19. And if so much of our money hadn’t gone into the military-industrial complex, perhaps there would have been enough health-care workers to weather this crisis better. 

As this invisible pathogen spreads across much of the world, what families like mine worry about is that our nation’s ever-expanding global conflicts will only continue to grow in scope and intensity, threatening food and medical supply chains. Then, in the worst of times, with our military infrastructure in increasing disarray, many more families, including possibly mine, could once again be called into armed conflict.

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Andrea Mazzarino, a TomDispatch regular, co-founded Brown University’s Costs of War Project. She has held various clinical, research, and advocacy positions, including at a Veterans Affairs PTSD Outpatient Clinic, with Human Rights Watch, and at a community mental health agency. She is the co-editor of War and Health: The Medical Consequences of the Wars in Iraq and Afghanistan.

Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer’s new dystopian novel (the second in the Splinterlands series) Frostlands, Beverly Gologorsky's novel Every Body Has a Story, and Tom Engelhardt's A Nation Unmade by War, as well as Alfred McCoy's In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower's The Violent American Century: War and Terror Since World War II.