By dropping Michael Flynn’s case, Barr has stripped centuries of credibility from the department of justice

The attorney general has done the worst harm that could be done to the republic: politicizing prosecution so that friends of the Dear Leader get off

Let’s play Mad Libs. Fill in the blanks:

What would attorney general William Barr have done if [name of prominent Trump enemy] had lied to the FBI about [contact with representative of hostile foreign power] in which they discussed [giving benefit to hostile foreign power] and then got caught and pleaded guilty, twice?

Let’s try: What if Michael Cohen lied to the FBI about talking to the North Korean ambassador about allowing nuclear testing and then got caught and pleaded guilty, twice?

or

What if Adam Schiff lied to the FBI about talking to the Iranian Ambassador about getting Congress to lift economic sanctions and then got caught and pleaded guilty, twice?

or

What if George Conway lied to the FBI about talking to Nicolás Maduro, the Venezuelan president, about invasion plans he saw on Kelly Anne Conway’s laptop and then got caught and pleaded guilty, twice?

Lying to the FBI is a crime. There is a materiality requirement; if you tell the FBI that you had cornflakes for breakfast when you had raisin bran, they can’t indict you. But as a lawyer who has argued materiality in a number of cases, I can tell you that beyond what kind of cereal you have, there is very little that is not material. A lie is material not only if it is relevant to the investigation but if the FBI says the lie caused the FBI to affect the course or focus of its investigation or fail to pursue certain lines of inquiry.

So let’s return to our Mad Libs response. Plainly, the crime of lying to the FBI about contact with a hostile foreign power is potentially serious. The lie could be interposed to hide an improper relationship with the foreign power, i.e., espionage or, as the US president would call it with respect to his own FBI, treason. That is not to say that Michael Flynn committed treason, but when someone lies about contact with the Russian Ambassador, that would certainly create in the reasonably curious investigator a thought that there could be national security implications here. As Judge Emmet Sullivan said, “Arguably, you sold your country out.”

Barr asserted that the government already had the transcript of the conversation so there was no reason to interview him. They knew he had talked to the Russian Ambassador and what was said — basically, don’t worry about responding to Obama’s throwing out of Russian diplomats (or spies undercover) because when we come into office, we’ll fix it all up.

But the FBI had been investigating Russian interference in the Trump campaign. And here is the incoming National Security Advisor telling the Russian Ambassador that good times are gonna roll for Russia when the Trump team arrives. On whose behalf was Flynn offering the goodies? Was he acting on his own? Unlikely. Was he instructed by President-elect Trump to let the Russian ambassador know? And if so, why? Was there, to use a phrase, a quid pro quo? Pretty good questions.

For Barr to claim there was no need to ask whether there was contact because the government already knew, is to limit the purpose of the interview to a single question. Not only does the FBI ask questions it knows the answer to all the time, such a question would be a logical entry point to the questions of why this was occurring when there was still a president in the Oval Office whose policies were entitled not to be undermined by the incoming administration.

The FBI had every right to and obligation to ask about the contact with the Russian Ambassador. Of course, Flynn, a former head of the DIA, would know there was a tape and so presumably the FBI did not assume he would lie when he knew they knew. But why would someone lie when he knows he is committing a crime and that the lie is transparent? Another good question. Barr knows the FBI was doing its job; but his boss hates the FBI and has been trying to get his buddy Mike Flynn off the hook since the dinner with James Comey in the first days of the administration.

What Barr was doing was a harm that goes well beyond the issue of Mike Flynn’s lies (and other criminal conduct that was not prosecuted). It goes beyond the issue of the integrity of and respect for the FBI by the government it serves and whether there should be a strong moral message that you need to tell the truth to law enforcement or suffer the consequences. No, what Barr did was the worst harm that could be done to the republic: politicizing prosecution so that the friends of the Dear Leader get off and the enemies of the Dear Leader get prosecuted.

So, to answer our Mad Lib, you can be absolutely certain that Barr would have gone after Cohen for talking to the North Koreans (he got three years anyway for lying to Congress about efforts to build the Trump Tower in Moscow!), because Cohen was an enemy and not “a warrior” as Trump said about Flynn. Would he have gone after Adam Schiff for talking to the Iranians or George Conway for talking to Maduro? In a New York minute. Barr has undermined what has taken two centuries, imperfectly, to build: confidence in the impartiality of the Department of Justice.