Within moments of the Russiagate document release, the left and MSM chorused nearly the same thing almost in unison: this is a travesty of justice! And they weren’t talking about the wretched excesses of the state apparatus regarding the framing of Flynn, they were talking about Barr and the refusal to pursue the charges against Flynn. It’s a political vendetta! It’s the end of the rule of law! James Comey’s tweet, which I wrote about on Thursday, was a good example of this.
I’ve long thought that Obama has been a major player not only in Russiagate as a whole, but in the entire course of events, and in particular the media and Democrat spin, of the Russiagate-related reaction since he left office. I just don’t think he’s the type to walk away from politics or from protecting his legacy. Although he likes to play golf and relax, too, he’s still deadly serious about the same agenda he had as president. He may or may not be the sole and undisputed leader of the Resistance, but he’s certainly a very big – and still-respected – player in it.
For example, back in November Obama publicly warned the Democrat candidates not to go too far left. And although he was careful not to mention any particular candidate by name, it was clear who he was talking about:
In what seemed a rebuke of Warren and Sanders’ stances, Obama, who is still held in exceptionally high regard by Democratic voters, spent considerable time during his speech counseling against adopting left-wing populism as a party platform.
His implicit message was: don’t show your left hand so openly; dissemble like I did.
Also, there are indications that Obama was influential in coaxing candidates to drop out when they did, or at the very least to endorse Biden after dropping out, in order to stop Sanders (see also this).
Now we have the “leak” of a “private” phone call between Obama and some-bunch-or-other of those who worked in his administration. In an article written by none other than Michael Isikoff, who had his own role in Russiagate as one of the first to write about the infamous Steele dossier, Obama’s call gets across the ex-president’s opinions about the recent revelations regarding Flynn.
And guess what? It’s all about the violation of the “rule of law” – not the egregious and audacious violations committed by Obama’s own minions, of course, but the decision by the DOJ to cease pursuing any of the fake ginned-up charges.
Obama, that putative “expert” (that quotation mark key on my computer is getting quite a workout) on constitutional law, had this to say:
Former President Barack Obama, talking privately to ex-members of his administration, said Friday that the “rule of law is at risk” in the wake of what he called an unprecedented move by the Justice Department to drop charges against former White House national security adviser Michael Flynn…
“The news over the last 24 hours I think has been somewhat downplayed — about the Justice Department dropping charges against Michael Flynn,” Obama said in a web talk with members of the Obama Alumni Association.
“And the fact that there is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free. That’s the kind of stuff where you begin to get worried that basic — not just institutional norms — but our basic understanding of rule of law is at risk. And when you start moving in those directions, it can accelerate pretty quickly as we’ve seen in other places.”
Perjury? A first-year law student knows the difference between lying to the FBI – in a matter in which there is no evidence of any crime whatsoever, and the target is not allowed to have a lawyer or be read his rights or even informed he’s being interrogated as a target – and perjury. Obama knows it, too, so why did he use the word? He probably thinks it’s a good talking point because it sounds really bad, and he doesn’t think most people will care about the finer points.
Or maybe he’s just forgotten all the law he ever knew. But I go with: tactical lie.
The Obama statement is curious on various levels. 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 wrote 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, as I noted in the column calling for this action, 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. I wrote recently about the serious concerns over the violation of Brady and standing court orders in the production and statements of the prosecutors in the case.Third, there is also case law. In Rinaldi v. United States, 434 U.S. 22 (1977) which addressed precedent under Petite v. United States, 361 U.S. 529 (1960) dealing with the dangers of multiple prosecutions. There are also related cases in Bartkus v. Illinois, 359 U. S. 121 (1959), and Abbate v. United States, 359 U. S. 187 (1959). The Rinaldi decision involved a petitioner convicted of state offenses arising out of a robbery, who believed that the government should have moved to dismiss a federal offense arising out of the same robbery under the Department’s Petite policy. The Court laid out the standard for such motions. The thrust of that controversy concerned double jeopardy and dual jurisdictions. However, the point was that the rule is key in protecting such constitutional principles and that courts should be deferential in such moves by the Department: “In light of the parallel purposes of the Government’s Petite policy and the fundamental constitutional guarantee against double jeopardy, the federal courts should be receptive, not circumspect, when the Government seeks leave to implement that policy.”
There are also lower court decisions on this inherent authority. For example, in the D.C. Circuit (where the Flynn case was brought), the ruling in United States v. Fokker Servs. B.V., No. 15-3016 (D.C. Cir. 2016) reaffirms the deference to prosecutors on such questions. The Court noted that this deference extends to core constitutional principles…
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.
If Turley was Obama’s law professor and Obama his student, Obama would be getting a solid “F.” But Obama is no longer in school; he’s now the mostly-respected ex-president, speaking regretfully of all the sad things that have been happening under Trump’s watch, and lamenting the abandonment of the Obama-type “rule of law.”
Obama is a sanctimonius, arrogant, dangerous, viper.
What really is without precedent – at least in the US, although not in certain countries usually referred to as “banana republics – is the way in which Obama used the DOJ and the FBI and the entire state apparatus to spy on and destroy an incoming president of the opposing party. Watergate was a tea party compared to this.
And indeed, as Obama pointed out (and he should know) “when you start moving in those directions, it can accelerate pretty quickly as we’ve seen in other places.”
Obama also managed to add this:
In the same chat, a tape of which was obtained by Yahoo News, Obama also lashed out at the Trump administration’s handling of the coronavirus pandemic as “an absolute chaotic disaster.”
Can you imagine any previous president saying something like that about a successor? I’ve been around a long time, and I never heard anything of the sort until Obama. There was an unwritten rule, one that ex-presidents of both parties followed, not to say anything particularly bad about a successor, even though the ex-president might be sorely tempted. And another rule was for ex-presidents to throw away partisanship during a crisis.
But Obama thinks such rules were meant to be broken – by Obama.
Last night, when I looked at the comments to that Yahoo article, I didn’t see any that supported Obama. They’re all on the order of “you’ll get yours, you lying POS.” But I am certain that plenty of people are buying what Obama and the MSM are selling.
And here’s an audio of that fortuitously “leaked” “private” call:
The last passage on the tape is fascinating, too. Obama says:
So I am hoping that all of you feel the same sense of urgency that I do. Whenever I campaign, I’ve always said, ‘Ah, this is the most important election.’ Especially obviously when I was on the ballot, that always feels like it’s the most important election. This one — I’m not on the ballot — but I am pretty darn invested. We got to make this [a Democratic victory] happen.
“Pretty darn invested” – well, that’s certainly an understatement. He’s “pretty darn invested” indeed; seeking not just to protect his legacy, to be able to tell President Joe Biden what to do, to have Biden choose as aides and cabinet members the old Obama crew and implementing the old Obama agenda (only carrying it further than Obama ever had time for), but also to protect himself from further revelations at the hands of Barr and Trump. If Biden is elected, all of the investigations into Obama’s role will be dropped like a radioactive potato.
Pretty darn invested.

