Also not so amazingly, the fact-checker was Prof. Jonathan Turley, a rare academic and legal professional who has the integrity to go where the facts take him, not his colleagues’ partisan agendas. Unfortunately, his refusal to join the “resistance” has resulted in his being vilified, as well as exiled to Fox News if he wants to be heard.
Barack Obama was heard on a private call to say that the “rule of law is at risk” after the Justice Department moved to dismiss the case against former national security adviser Michael Flynn. As with so many other narratives the Left has pushed in the past three years, this one is exactly the opposite of reality. Recently declassified documents show that the Obama FBI and Justice Department engaged in illegal investigative and prosecutorial misconduct, targeting Flynn and framing him as part of their efforts to bring down President Trump. They also suggest that President Obama was aware of the operation. Such abuses for political gain pose the real threat to the rule of law.
Obama is reported to have said that “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.”
Here’s Turley, who, nice guy that he is, can still barely disguise his contempt:
Without doubting the exhaustive search referenced by President Obama, he might have tried calling one “alum”: former Attorney General Eric Holder. Holder moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan. [Notably, CNN covered the statements this morning without noting the clearly false claim over the lack of any precedent for the Flynn motion]
First, the exhaustive search may have been hampered by the fact that Flynn was never charged with perjury. He was charged with a single count of false statements to a federal investigator under 18 U.S.C. 1001. I have previously written that the Justice Department should move to dismiss the case due to recently disclosed evidence and thus I was supportive of the decision of Attorney General Bill Barr. Second, there is ample precedent for this motion even though…such dismissals are rare. There is a specific rule created for this purpose. Federal Rule of Criminal Procedure 48(a) states the government may dismiss an indictment, information or complaint “with leave of the court.” Moreover, such dismissals are tied to other rules mandating such action when there is evidence of prosecutorial misconduct or fundamental questions about the underlying case from the view of the prosecutors…. Third, there is also case law….
…which Turley goes on to cite. Because Obama is a lawyer and presumed to be brilliant, so those who are not lawyers (and are far from brilliant ) assume he knows what he is talking about when he makes sweeping statements about the law. More often than not, he is just bloviating and faking it, as in this case.
Turley then moves in for the metaphorical kill:
Fourth, there are cases where the Department has moved to dismiss cases on grounds of prosecutorial misconduct or other grounds touching on due process, ethical requirements or other concerns. One that comes to mind is United States v. Stevens where President Obama’s own Attorney General, Eric Holder, asked the same judge in the Flynn case to dismiss that case. That was just roughly ten years ago. As with Flynn, there was an allegation of withheld evidence by prosecutors.
At the time of the motion Holder declared “The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis.” What is obvious is the new guidelines issued at the time were honored in the breach during the Flynn prosecution.
While people of good faith can certainly disagree on the wisdom or basis for the Flynn motion, it is simply untrue if President Obama is claiming that there is no precedent or legal authority for the motion.
The rare statement by President Obama is also interesting in light of the new evidence. As I discussed in a column …in the Hill newspaper, the new material shows that Obama was following the investigation of Flynn who he previously dismissed from a high-level position and personally intervened with President Donald Trump to seek to block his appointment as National Security Adviser. Obama reportedly discussed the use of the Logan Act against Flynn. For a person concerned with precedent, that was also a curious focus. The Logan Act is widely viewed as unconstitutional and has never been used to successfully convicted a single person since the early days of the Republic. Now that is dubious precedent.
Let me briefly translate Turley’s coy academic-speak, to which he is addicted:
- Obama is claiming a result is “unprecedented” that has an immediate precedent in his own administration, under his own Attorney General, and before the same judge.
- By “honored in the breach”‘ Turley means “defied.” I hate that arcahic euphemism. Breaching a rule or law isn’t honoring it.
- By “interesting” and “curious” Turley means “suspicious.”
- By “Now that is dubious precedent” he means “Now that is dubious precedent,” because Obama supported the unprecedented use of an unconstitutional dead letter law…a genuine threat to the rule of law.
Turley means, in short, that Barack Obama is again completely wrong, and probably lying.