Trump's Childish Tactics Won't Fly in the Flynn Case | Opinion

Heraclitus famously said that a man's character is his fate. So too with a presidency. A president's character is inextricably linked to his administration's fate. And one of this president's most characteristic personal failings has begun to manifest itself in his administration's legal arguments.

I refer to President Donald Trump's pathological reliance on "I'm rubber, you're glue" thinking—psychiatric professionals call it "projection"—to deflect attacks against him back onto his critics. This president accuses all his adversaries, real and imagined, of the very malignancies of which he is guilty. He did it with the presidential debates, quickly and childishly turning Secretary Hillary Clinton's accusation that he was a puppet of Russian President Vladimir Putin back onto her ("No puppet! No puppet! You're the puppet!"). He did it with race, accusing the four Democratic congresswomen who called out his racism of themselves being racist. And he did it with impeachment, railing for the impeachment of, among others, Speaker Nancy Pelosi, Chairman Adam Schiff and Senator Mitt Romney.

Trump and his apologists are back at it again with Michael Flynn. They're offering the same "I'm rubber, you're glue" reasoning, this time covered in the thin veneer of legal argument. They accuse U.S. District Court Judge Emmet G. Sullivan, who presided over the Flynn trial and is poised to sentence Flynn for his federal crimes, of violating our constitutional separation of powers, for doing no more than taking entirely lawful and well-precedented steps to preserve the operations of the judicial branch. But in the end, it is Trump and Attorney General William Barr who are violating the separation of powers by taking lawless and unprecedented steps to undermine the judicial process.

To start with, the Trumpian attacks on Sullivan are themselves entirely baseless. Sullivan's appointment of retired U.S. District Court Judge John Gleeson, a widely respected former federal prosecutor, as well as a distinguished former federal trial judge, was well within his Article III powers. Courts routinely appoint "friends of the court," designated amici curiae, to brief and argue positions otherwise unrepresented in the proceedings but intrinsic to their proper resolution.

The amicus has become a "standard feature of litigation." Around once per term, the Supreme Court invites an amicus to argue a position that one party (typically the government) has conceded on appeal. The court does so, in its own words, "to decide the case satisfied that the relevant issues have been fully aired." Attorney Bill Coleman, to give but one important example, was appointed to defend the IRS's policy of not giving tax exemptions to racially discriminatory organizations when the Nixon administration refused to defend that policy. Importantly, this practice supplements but doesn't substitute for the equally standard practice of courts considering the arguments made in amicus briefs filed both on behalf of interested individuals and organizations (over 100 were filed in Obergefell) or on behalf of experts with relevant perspectives to present.

That is exactly what has happened here. When the Department of Justice made the "virtually unheard-of" decision to dismiss two already vetted and accepted guilty pleas on the eve of sentencing, Sullivan rightly suspected that the relevant issues would not be fully aired without the arguments of an amicus. Moreover, Flynn has now arguably told the court things inconsistent with what he had said under oath when pleading guilty, opening himself up to perjury charges—an argument that neither Flynn nor Barr could be expected to make. Nothing about that move ought to be controversial. As Professor Randall D. Eliason notes, once a judge has accepted a guilty plea from a defendant, the ball is squarely in the judge's court to determine sentencing. And at the very least, it is reasonable for Sullivan to seek outside counsel on how to understand such a peculiar move from Barr.

From a separation of powers perspective, there is nothing untoward here. The executive prosecuted its case and won a guilty plea from the defendant. The judiciary must now exercise its independent judgment about how to sentence him. And judges may not bury their heads in the sand when the Department of Justice inexplicably unwinds a guilty plea it had painstakingly developed. As Chief Justice John Roberts wrote just last term in the administrative law context, courts are "not required to exhibit a naiveté from which ordinary citizens are free." So too here. Sullivan is not required to pretend he was born yesterday. The department's move is so unprecedented, so flagrantly indicative of abuse and so downright bizarre that any rational judge would want further briefing before deciding how to proceed. Sullivan has wisely chosen to protect his judicial role by seeking that further briefing, and the law gives him that right.

Donald Trump Flynn
U.S. President Donald Trump speaks to reporters in the Oval Office at the White House on May 7 in Washington, D.C. Trump talked about the announcement that the Department of Justice has dropped charges against his former national security adviser Michael Flynn, who pleaded guilty in 2017 to lying to the FBI. Doug Mills-Pool/Getty

But the story doesn't stop there. For it's Barr himself who violated the separation of powers by seeking to reduce Sullivan to a subordinate of the "Article II Department of Justice," treating the federal judiciary as though it were on the executive branch organization chart headed by the president. That is the flip side of this particular "I'm rubber, you're glue" argument. Trump and his cronies hurl attacks at Sullivan—while they themselves are guilty of the very thing they accuse him of doing.

And it doesn't take much to see why. The Department of Justice moved to dismiss the charges against Flynn on grounds that had in essence already been rejected by Sullivan when he made detailed findings on the validity of Flynn's guilty pleas. And it made that motion only hours after the career prosecutor who had overseen the Flynn prosecution resigned. That filing was signed only by the assistant U.S. attorney who had served as an aide to Barr just months before. As Gleeson wrote several days ago, the whole situation "reeks of improper political influence." The total deference to the executive that Barr seems to expect, even with such a stench in the air, would itself undermine the values of checks and balances that define our constitutional scheme.

Policy mirrors personality. This president has a pathological inability to accept responsibility. He childishly points his finger anywhere he can, all the more aggressively when he himself is guilty of the charges he levies at others. That is exactly the narrative that is unfolding here. The president and his cronies accuse Sullivan of violating constitutional separation of powers, while Trump himself demands blind loyalty from the Article III judiciary that would itself violate those principles. We are fortunate to have strong-willed public servants like Judges Sullivan and Gleeson who see right through the president's act.

Laurence H. Tribe, the Carl M. Loeb University Professor of Constitutional Law at Harvard, is the co-author, most recently, of To End a Presidency: The Power of Impeachment (with Joshua Matz). His Twitter handle is @tribelaw.

The views expressed in this article are the author's own.

Trump's Childish Tactics Won't Fly in the Flynn Case | Opinion | Opinion