William Barr, the U.S. Attorney General and Donald Trump henchman, is attacking the U.S. judicial system in a systematic campaign that has shocking parallels to the Nazi Party’s subversion of justice in pre-World War II Germany.
The Justice Department’s decision to drop criminal charges against Trump’s former national security adviser, Michael Flynn, is the latest case in point.
Nearly 2,000 former Justice Department officials have signed a statement condemning the DOJ’s decision to drop charges against Flynn and called on Barr to resign for “repeated assaults on the rule of law.”
Barr’s intervention in the Flynn case is not his first on Trump’s behalf.
In the Roger Stone case, he was accused of “flouting the core principle that politics must never enter into the Department’s law enforcement decisions,” the letter states. Barr overrode prosecutors handling the case on sentencing guidelines.
“Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies,” according to the letter.
While comparing any government official’s actions to Nazi Germany is always dangerous ground, parallels to the threat facing American democracy are striking.
The subversion of the justice system is being fueled by Trump’s obsession with Special Counsel Robert Mueller’s report on Russian interference in the 2016 election.
He is determined to bury the report by rewriting history. It’s a ploy the old Soviet Union and Nazi Germany employed to prop up their regimes. And, it’s still used in modern-day dictatorships in Russia, Hungary, Turkey and elsewhere.
But Trump can’t do it alone. He must co-opt the legislature and ultimately the justice system, the Constitutional bulwarks that serve as a check on the executive branch.
In Congress, he’s achieved his goal through Senate President Mitch McConnell. With an iron grip on the Republican Senate majority, the Kentucky lawmaker has become a willing Trump acolyte, blunting or thwarting Congress’s traditional role of independent oversight.
The justice system, however, is another matter.
Its long tradition of independence begins with the Justice Department and extends to thousands of judges who make up the judiciary, right up to the nation’s highest court. The system’s breadth and diversity make it virtually incorruptible.
In fact the only way to corrupt the system is to cast doubt on the system itself. The Flynn case has become the fulcrum, and the Barr Justice Department the lever to do just that.
Flynn was the highest ranking administration official to face conviction in the Russia probe.
He twice pleaded guilty to lying to the FBI and Vice President Mike Pence. He apologized for his behavior in court.
““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,” he said.
Yet, Trump has repeatedly claimed he was railroaded by a “corrupt” FBI, a narrative that is central to his claim the Russia probe is a “hoax.”
Barr’s decision to drop Flynn’s charges effectively drew the Justice Department lockstep into Trump’s political crusade. The goal is clear–to carry out Trump’s rewrite of history.
But to do that, Barr had to effectively destroy the credibility of the FBI and his own DOJ lawyers.
The move is viewed in the legal community as the most serious attempt yet to politicize the traditionally independent justice department and make it an extension of Trump’s increasingly authoritarian government.
“The Justice Department’s shift reflects a deeply mistaken view of American law enforcement,” writes Georgetown University law professors Neal K. Katyal and Joshua A. Geltzer in The New York Times.
“In this view, federal investigators and prosecutors are a deep threat to the American people. That’s the narrative about the handling of the Flynn case that began on far-right websites, then migrated to Fox News and has now — appallingly — been embraced by President Trump and his attorney general, Bill Barr.
“They’re all peddling the idea that Mr. Flynn was ‘set up’ by the FBI and the Justice Department.”
It should come as no surprise that Hitler faced the very same “political problem” as he attempted to consolidate power and end the Wiemar Republic’s experiment with German democracy following World War I.
Like the U.S. government, the Wiemar Republic was based on a system of checks and balances among the executive, legislative and judicial branches of government.
In 1932, Hitler ran for president of Germany, but was defeated by World War I hero Paul von Hindenburg in a national election.
To bring the growing Nazi Party into government, Hindenburg appointed Hitler Chancellor, a position similar to a prime minister and effectively head of the German legislature.
Hitler and the Nazi Party set out to exert totalitarian control over all aspects of German society, but were initially thwarted by the legislature and the judicial branch. To succeed, he had to co-opt both.
Four weeks after his appointment, the campaign was set into motion when The Reichstag, home of the German parliament, was burned down in an arson attack.
The Nazi Party used the fire as a pretext to claim Communists were plotting to overthrow the government.
Hitler convinced Hindenburg to declare a national emergency, suspending most civil liberties. Violent political clashes followed mostly instigated by Nazis.
The German Communist Party, which held 17 percent of the legislative seats, was eventually banned, and thousands were arrested, clearing the way for the Nazi Party to gain a working majority in a new election following the fire.
The legislature enacted a law giving the Chancellor the power to make laws by decree. Combined with Hindenburg’s emergency fiat suspending civil liberties, Hitler effectively became dictator. His power would rest on those two moves throughout his reign.
But the judiciary remained a thorn in his side. To prove the Reichstag fire was a Communist conspiracy, four sympathizers were arrested and put on trial.
But only one of the four was convicted, bolstering claims the fire was the act of a lone arsonist, not a broad conspiracy to overthrow the government.
Hitler was furious with the outcome and set out to exert total control over the judiciary by creating his own “People’s Court.”
The court had jurisdiction over a broad array of “political offenses,” which included crimes like black marketeering, work slowdowns, defeatism, and treason against the Third Reich.
The judges, all Nazi loyalists, conducted outlandish “show trials” to convict any perceived enemy of the state, many of whom were sentenced to death.
Obviously, that could never happen in the United States, but Trump is doing the next best thing.
He’s been nominating dozens of party loyalists to federal judgeships to fulfill a 2016 campaign pledge. He promised all of his appointees would be staunchly anti-abortion and broadly pro second amendment.
In less than three years, Trump has named 50 federal appeals court judges, compared to 55 judges appointed during Obama’s entire two terms. Trump has also appointed 112 lower district court judges.
McConnell and the Republican Senate majority have rubber stamped every nominee.
Candidates must only pass a litmus test on conservative issues. Some have been appointed even though the American Bar Association (ABA) has found them to be unqualified.
Many of those vacancies occurred during Obama’s second term, but McConnell blocked his appointments, including a Supreme Court vacancy created by the death of Justice Antonin Scalia in Feb. 2016.
McConnell refused to hold a hearing on Obama’s choice, Merrick Garland, a moderate who serves as chief judge on the U.S. Court of Appeals for the District of Columbia.
He justified the move by claiming justices shouldn’t be appointed during an election year.
Instead, Trump nominated Neil Gorsuch, a federal district court judge who is archly conservative, shortly after taking office.
He nominated another arch conservative, Brett Kavanaugh, following the retirement of moderate Justice Anthony Kennedy.
Most recently, McConnell has been pushing political protégé Justin Walker, a 37-year-old federal judge in Kentucky, for a seat on the influential U.S. Court of Appeals for the District of Columbia.
Not surprisingly, Walker is opposed to the ACA, supports other conservative causes and was judged “not qualified” by the ABA, in part, because he lacks judicial experience.
McConnell has publicly stated that his goal is to pack the courts with Republican stalwarts to preserve conservative influence over the nation for decades, no matter who is elected to Congress or the White House.
The move is clearly designed to thwart the will of voters by leveraging the judiciary as a permanent government. The move is significant.
The courts have wide influence on nearly every facet of life, from abortion, election spending and gerrymandering, to voter suppression, gun control and the rights of gays and lesbians.
A key test on Trump’s sway over the Supreme Court is coming on two key issues–the fate of the Affordable Care Act (ACA) and the right of Congress and the U.S. Attorney’s Office to have access to his tax returns. The court is hearing arguments on both issues right now.
He’s already won one battle. The high court cleared the way for construction of his long-promised wall on the southern border, using funds not allocated by Congress.
At the same time, Trump has suffered some significant defeats in lower courts.
In the matter of his tax returns, for example, federal judges in D.C. and the Southern District of New York upheld subpoenas by the Manhattan district attorney’s office.
The D.C. Circuit and U.S. Court of Appeals for the Second Circuit more recently ruled that lawmakers could request the documents as well, forcing Trump to appeal to the Supreme Court, according to Law.com.
“To accept the Trump Plaintiffs’ suggestion that Congress may impose no disclosure requirements whatsoever on the president—or, put another way, that the challenged subpoena could result in no valid legislation—would be to return to an ‘archaic view of the separation of powers’ that ‘requir[es] three airtight departments of government,’” Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit wrote. “That is not the law.”
Of course, judges are free to rule as they see fit once on the bench, and most do, which makes Barr’s actions far more troubling. His flimsy justification to absolve Flynn has raised red flags about the DOJ’s independence.
“Without constitutional or statutory violations grounding its motion, the Barr-Shea motion makes a contorted argument that Mr. Flynn’s false statements and omissions to the FBI were not ‘material’ to any matter under investigation,” write Katyal and Geltzer.
Mary B. McCord, the acting assistant attorney general for national security from 2016 to 2017, asserted that Barr distorted her remarks in a written interview to justify his stance.
“The account of my interview in 2017 doesn’t help the department support this conclusion, and it is disingenuous for the department to twist my words to suggest that it does,” she writes in The New York Times.
“In short, the report of my interview does not anywhere suggest that the F.B.I.’s interview of Mr. Flynn was unconstitutional, unlawful or not “tethered” to any legitimate counterintelligence purpose,” she adds.
Barr does not have the authority on his own to drop the Flynn charges.
Judge Emmet G. Sullivan, who has had jurisdiction over the Flynn case for two years, has the power to deny the justice department’s request.
Both Supreme Court and U.S. Court of Appeals for the D.C. Circuit precedent leave little room to decline the government’s motion, according to legal website Lawfare.
But Sullivan can demand an explanation from the Justice Department. Given the flimsy grounds of Barr’s request, his findings could prove eye-opening.
Justice Department prosecutor, Brandon Van Grack, who oversaw the Flynn case, withdrew after Barr’s motion to dismiss.
The public deserves an explanation for this move, and Sullivan is the one to get it. The judge has the power to hold an evidentiary hearing with witnesses and to deny the motion.
Let’s hope he holds the justice department accountable.
“if ever there were a case where the public interest counseled the court to take a long, hard look at the government’s explanation and the evidence, it is this one,” the DOJ prosecutors wrote.