A few days ago I wrote a column on William Barr’s latest, and to my mind scariest, affront to the rule of law, when he instructed his prosecutors to refuse compliance with a court order to produce material in connection with the sentencing of former National Security Advisor Michael Flynn.
There may have been good reasons to resist this disclosure. It involved intelligence intercepts of conversations with the Russian ambassador, and the usual “highly sensitive classified information/sources and methods” objections could have been raised, but the thing is, Barr’s team didn’t do so. They said merely that they weren’t relying on that information for their sentencing submission, and would not release it, until the un-revoked deadline to produce it elapsed.
That’s not how this is done, is it?
I’ve been waiting for the other shoe to drop, and because I was expecting something a little more dramatic from a reportedly cantankerous Judge Sullivan, this flew right under my radar:
Wha? This story, in the Seattle Times, states blandly that the Judge just decided fine, he didn’t need it, no harm, no foul: “In a brief written order Tuesday, Sullivan said that ‘upon consideration of the government’s submissions in response to those orders, the government is not required to file any additional materials or information on the public docket.’ He did not elaborate on why he had changed his mind.”
Sullivan speaks of “submissions” made, which suggests some sort of legal process, in which case, fine, but it’s unclear. What process? Was there some sort of off-the-books phone conversation or something? Shouldn’t the prosecutors have been required to launch some sort of formal legal proceeding if they didn’t think the Judge’s order was proper?
Did a Federal Court Judge just roll over and let Barr have his way? This doesn’t look good. Whatever the merits of the case against production of the evidence, you don’t just refuse a court order and then hum a little tune while you wait for the Judge to fold. That’s not how this works. You pull a stunt like that and the court slaps you around a little, just on principle, even if it then agrees to hear arguments and then even rules in your favour. You still get a sharp cuff across the face for your impertinence. You get the old and next time, mister, remember that I decide what I get to see, not you, and if you win the argument it’s because I decided you won, not because you get to thumb your nose at the bench, so here’s a nice fine for your bad attitude, and you can pay the clerk on the way out, failing which that man in the uniform with the sidearm will be pleased to take you into custody. Right?
Or not so much any more? Did Barr just get away with pushing around the Judiciary?
Where’s Judge Judy when you need her?