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    Do You Know a Politically Motived Prosecution When You See One?

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    As the criminal indictments of Donald Trump continue to pile up like boxes in a Mar-a-Lago bathroom, the former president’s defenders have settled on a response: They don’t claim their man is innocent of the scores of federal and state charges against him — a tough case to make under the circumstances. Instead they accuse the Biden administration and Democratic prosecutors of politicizing law enforcement and cooking up an insurance policy to protect President Biden, who trails Mr. Trump in some polls about a very possible 2024 rematch.“So what do they do now?” House Speaker Kevin McCarthy asked last week, after Mr. Trump announced that he had received a second target letter from the special counsel Jack Smith, this time over his role in the Jan. 6 attack. “Weaponize government to go after their No. 1 opponent.”Gov. Ron DeSantis, one of the few plausible Republican nominees besides Mr. Trump, warned that the government is “criminalizing political differences.”It’s not only about Mr. Trump; griping about politicized law enforcement has become a cottage industry on the right these days. No sooner did Republicans take back the House of Representatives than they formed a Select Subcommittee on the Weaponization of the Federal Government, which meets regularly to air grievances and grill witnesses about their supposed anti-conservative animus, including Christopher Wray, the (Trump-nominated) F.B.I. director.If you’re feeling bewildered by all the claims and counterclaims of politicization, you’re not alone. Take the F.B.I.’s probe of ties between Russia and the 2016 Trump campaign, which is still being hashed out in the halls of Congress seven years later: In February, Democratic lawmakers demanded an investigation of the investigators who investigated the investigators who were previously investigated for their investigation of a transnational plot to interfere in a presidential election. Got that?But even if the charge of politicized justice is levied by a bad-faith buffoon like Representative Jim Jordan of Ohio, the chairman of the weaponization subcommittee, it is a profoundly important one. There is no simple way to separate politics completely from law enforcement. The Justice Department will always be led by a political appointee, and most state and local prosecutors are elected. If Americans are going to have faith in the fairness of their justice system, every effort must be taken to assure the public that political motives are not infecting prosecutors’ charging decisions. That means extremely clear rules for investigators and prosecutors and eternal vigilance for the rest of us.At the same time, politically powerful people must be held to the same rules as everyone else, even if they happen to be of a different party from those investigating them. So how to distinguish an investigation or prosecution based solely on the facts from one motivated improperly by politics?Sometimes the investigators make it easy by just coming out and admitting that it’s really political. Mr. McCarthy did that in 2015, when he bragged on Fox News that the House Benghazi hearings had knocked a seemingly “unbeatable” Hillary Clinton down in the polls. More recently, James Comer of Kentucky, who heads the House committee that is relentlessly investigating Hunter Biden, made a similar argument about the effect of the committee’s work on President Biden’s political fortunes. (Mr. Comer tried to walk back his comment a day later.)More often, though, it takes some work to determine whether an investigation or prosecution is on the level.The key thing to remember is that even if the subject is a politically powerful person or the outcome of a trial could have a political impact, that doesn’t necessarily mean the action itself is political. To assume otherwise is to “immunize all high-ranking powerful political people from ever being held accountable for the wrongful things they do,” said Kristy Parker, a lawyer with the advocacy group Protect Democracy. “And if you do that, you subvert the idea that this is a rule-of-law society where everybody is subject to equal justice, and at the same time you remove from the public the ability to impose any accountability for misconduct, which enables it to happen again.”In May, Protect Democracy published a very useful report, co-written by Ms. Parker, laying out several factors that help the public assess whether a prosecution is political.First, what is the case about? Is there straightforward evidence of criminal behavior by a politician? Have people who are not powerful politicians been prosecuted in the past for similar behavior?Second, what are top law-enforcement officials saying? Is the president respecting due process, or is he demanding investigations or prosecutions of specific people? Is he keeping his distance from the case, or is he publicly attacking prosecutors, judges and jurors? Is the attorney general staying quiet, or is he offering public opinions on the guilt of the accused?Third, is the Justice Department following its internal procedures and guidelines for walling off political interference? Most of these guidelines arose in the aftermath of the Watergate scandal, during which President Richard Nixon ordered the department to go after his political enemies and later obstructed the investigation into his own behavior. Until recently, the guidelines were observed by presidents and attorneys general of both parties.Finally, how have other institutions responded? Did judges and juries follow proper procedure in the case, and did they agree that the defendant was guilty? Did an agency’s inspector general find any wrongdoing by investigators or prosecutors?None of these factors are decisive by themselves. An investigation might take a novel legal approach; an honest case may still lose in court. But considering them together makes it easier to identify when law enforcement has been weaponized for political ends.To see how it works in practice, let’s take a closer look at two recent examples: first, the federal investigations into Mr. Trump’s withholding of classified documents and his attempts to overturn the 2020 election and, second, the investigation by John Durham into the F.B.I.’s Russia probe.In the first example, the Justice Department and the F.B.I., under Attorney General Merrick Garland, waited more than a year to pursue an investigation of Mr. Trump’s role in the Jan. 6 attack with any urgency — largely out of the fear that they would be seen as politically motivated.With a punctiliousness that has exasperated many liberals, Mr. Garland has kept his mouth shut about Mr. Smith’s prosecutions, except to say that the department would pursue anyone responsible for the Jan. 6 attack. Mr. Garland almost never mentions Mr. Trump by name. And Mr. Smith has been silent outside of the news conference he held last month to announce the charges in the documents case.In that case, Mr. Smith presented a tower of evidence that Mr. Trump violated multiple federal laws. There are also many examples of nonpowerful people — say, Reality Winner — who were prosecuted, convicted and sentenced to years in prison for leaking a single classified document. Mr. Trump kept dozens. Even a federal judge who was earlier accused of being too accommodating to Mr. Trump has effectively signaled the documents case is legitimate, setting a trial date for May and refusing the Trump team’s demand to delay it until after the 2024 election.In the Jan. 6 case, the government has already won convictions against hundreds of people for their roles in the Capitol attack, many involving some of the same laws identified in Mr. Smith’s latest target letter to Mr. Trump.“Prosecutors will hear all sorts of allegations that it’s all political, that it will damage the republic for all of history,” Ms. Parker, who previously worked as a federal prosecutor, told me. “But they have to charge through that if what they’ve got is a case that on the facts and law would be brought against anybody else.”President Biden’s behavior has been more of a mixed bag. He and his advisers are keen to advertise his disciplined silence about Mr. Trump’s legal travails. “I have never once — not one single time — suggested to the Justice Department what they should do or not do,” he said in June. Yet he has commented publicly and inappropriately on both investigations over the years.It’s impossible to justify these remarks, but it is possible to consider them in light of the other factors above and to decide that Mr. Smith’s investigations are not infected with a political motive.Contrast that with the investigation by John Durham, the federal prosecutor appointed by Mr. Trump’s attorney general Bill Barr in 2019 to investigate the origins of the F.B.I.’s Trump-Russia probe.Even before it began, the Durham investigation was suffused with clear political bias. Mr. Trump had repeatedly attacked the F.B.I. over its handling of the Russia probe and called for an investigation, breaching the traditional separation between the White House and the Justice Department. Mr. Barr had also spoken publicly in ways that seemed to prejudge the outcome of any investigation and inserted himself into an investigation focused on absolving Mr. Trump of wrongdoing.Not every investigation or prosecution will offer such clear-cut evidence of the presence or absence of political motivations. But as with everything relating to Mr. Trump, one generally doesn’t have to look far to find his pursuit of vengeance; he has taken to describing himself as the “retribution” of his followers. If he wins, he has promised to obliterate the Justice Department’s independence from the presidency and “go after” Mr. Biden and “the entire Biden crime family.”For the moment, at least, Mr. Trump is not the prosecutor but the prosecuted. And there should be no fear of pursuing the cases against him — especially those pertaining to his attempts to overturn his loss in 2020 — wherever they lead.“If we can’t bring those kinds of cases just because the person is politically powerful, how do we say we have a democracy?” asked Ms. Parker. “Because in that case we have people who are above the law, and they are so far above the law that they can destroy the central feature of democracy, which is elections, in which the people choose their leaders.”Source photograph by pepifoto, via Getty Images.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      From Cell to City Hall: Yusef Salaam’s Win Shows Shift in Politics of Crime

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      During New York City’s crack era in the early 1990s, with homicide tallies five times those of today, the authorities resorted to ruthless law enforcement.“The police would pull your car over at will, just because you were Black, and go through the car and your pockets,” said Derrick Hamilton, 57, who grew up in public housing in Brooklyn in the 1980s and was first arrested as a teen. “They’d pull your socks off, pull your pants off.”Crime fell across the country during the ensuing decades in a broad societal shift, and New York become one of America’s safest big cities and a thriving tourist destination. But in its darkest days police and prosecutors had cut corners and used tactics that left untold numbers of innocent people — mostly poor men of color — imprisoned on bogus murder, rape and robbery charges.The prisoners’ dogged legal challenges prompted reinvestigations helped by left-leaning prosecutors, advances in DNA testing, pressure from newly formed advocacy groups and generous government restitution, turning New York into a national hotbed of exoneration. In recent years, one innocent middle-aged man after another has been released, ravaged by years in prison, into a tamer city.There is no more striking personification of the change than Yusef Salaam, 49, who was arrested in the infamous 1989 Central Park jogger rape case, in which detectives coerced false confessions out of five Harlem teenagers. They were exonerated after years in prison.Last month, Mr. Salaam won a Democratic primary for a City Council seat, making him all but certain to become the first exoneree to hold elective office in the city.“It was inconceivable in the 1990s that Yusef Salaam could be elected to the City Council, but all these years later, there’s a change in the public consciousness and there’s now a willingness to put victims from that era in positions of authority,” said Joel Rudin, a lawyer who has handled dozens of wrongful conviction claims. “We’ve come a very long way.”Yusef Salaam said he was wrongly imprisoned by a brutal system of law enforcement working as it was designed.Jeenah Moon for The New York TimesOnce, prosecutors’ offices were invested in defending bad convictions, but now they uncover them with review units in all five boroughs. Progressive district attorneys who campaigned on the issue have dismissed hundreds of lower-level convictions linked to discredited police officers.The cause has attracted wealthy patrons, as well as prestigious law firms now devoting pro bono work. It has become fodder for documentaries, docudramas and podcasts.For the exonerated, compensation cases are being settled for increasing amounts, often totaling well over $10 million. Over the past decade, the city has paid out about $500 million. And payouts for claims against New York State, another source of compensation, are among the country’s highest.Taken together with recoveries from civil rights cases, the more than $1 billion paid out to those wrongly convicted in New York is the highest of any state in the country by far, according to Jeffrey Gutman, a law professor at George Washington University. A small industry of private lawyers has sprung up to help former prisoners get paid, and to get paid themselves.The situation was engendered by a very different New York. For many residents, streets and subways were to be avoided after dark. Bryant Park in Midtown, today a revitalized urban gem, was a drug market. In 1990, there were nearly 2,250 murders, five times today’s totals.For the police, it was a time to crack down on minor offenses, and street crime units operated under the motto “We own the night.”The desperation to catch and convict at any cost fostered “a willingness to bend the rules,” Mr. Rudin said.Emboldened detectives manufactured cases by manipulating witnesses, coercing confessions, using suggestive identification procedures and withholding exonerating evidence, he said. Locking up a certain percentage of innocent people was simply “collateral damage.”Since his release, Derrick Hamilton has used his skills as a paralegal trying to free other inmates from prison.Anthony Lanzilote for The New York TimesMr. Salaam said in an interview last week that he and the other members of the Central Park Five were “run over by the spiked wheels of justice,” thanks to detectives who knew which levers they could pull in 1989.“The system was operating exactly how it was designed,” he said. “These were people who were supposed to be protecting and serving us, but they literally built their careers off the backs of folks just like me.”As the city’s economy improved and unemployment declined throughout the 1990s, murder and other violent crime decreased. Bad arrests continued nonetheless.Rudolph W. Giuliani took office in 1994 with a pledge to crack down on crime through aggressive policing. His administration was plagued by allegations of police brutality and civil rights abuses, as well as wrongdoing like the torture of Abner Louima and killing of Amadou Diallo.The highest totals of bad convictions in the city came in 1997, when there were 22, of which 15 were for murder, as listed on the National Registry of Exonerations. The group lists at least 230 exonerations for New York City since 1989.“Detectives were expected to clear cases, and once they had made up their mind, they’d stop investigating,” said Irving Cohen, 80, who has represented about 15 wrongfully convicted New Yorkers since the late 1980s. He recalled receiving weekly letters from inmates asking for help. “There were a lot of homicides,” he said. “They did whatever they had to do to get the person convicted, whether they believed the person was guilty or not.”Irving Cohen, left, has represented wrongly convicted New Yorkers since the 1980s.Dave Sanders for The New York TimesMr. Salaam’s exoneration in 2002 was a stunning reversal, one of the first cases that showed the pitfalls of New York’s wholesale justice. A convicted murderer and serial rapist admitted that he was responsible for the attack, and the Manhattan district attorney’s office filed court papers clearing Mr. Salaam and the other members of the Central Park Five.But some police officials continued to blame the wrongly convicted men despite D.N.A. evidence. The district attorney at the time, Robert M. Morgenthau, found no coercion by officers or prosecutors.Many dismissed cases involved a relative handful of officers, including Louis Scarcella, a former Brooklyn homicide detective whose conduct has led to the review of dozens of cases and to at least eight murder convictions being overturned. Mr. Scarcella has denied any wrongdoing.One of his cases was that of Mr. Hamilton, who served more than 20 years on a 1991 murder charge. He litigated from prison, with limited access to phones and correspondence materials. He drafted briefs from a cramped cell, researched cases in a meager law library and wrote legal letters longhand from solitary confinement.For Mr. Hamilton, things changed when a key eyewitness came forward years after his conviction to say that Mr. Scarcella had coerced her into lying.Louis Scarcella’s conduct as a Brooklyn homicide detective led to at least eight murder convictions being overturned.John Taggart for The New York TimesThe case was taken up by the Brooklyn district attorney’s conviction integrity unit, which, with more than 30 exonerations since 2014, is one of the most robust units in the nation and one reason the borough has by far the highest number of overturned convictions of any in the city, with 88 on the national registry.In 2019, after the Bronx prosecutors’ conviction integrity unit and the Innocence Project presented new evidence, a judge vacated the 1989 murder conviction of Huwe Burton, who had been coerced by detectives into a false confession at age 16.The Bronx district attorney, Darcel Clark, said that detectives had used the discredited practices of the era.“What they did was not necessarily wrong — that is the way things were done then,” she told The New York Times in 2019. “For 1989, that was standard practice for the N.Y.P.D., but now we know better.”Huwe Burton was wrongly convicted at 16 and spent decades in prison. The district attorney said detectives had followed the norms of 1989.Gregg Vigliotti for The New York TimesSome disagree. Police and prosecutors are almost never disciplined for misconduct, including coercing innocent suspects into confessing, said Rebecca Brown, who for the past eight years was director of policy at the Innocence Project in Manhattan.And police still can lie and make false promises to suspects, including children, to elicit false confessions, she said.“Many of the contributing causes are still alive and well in New York City,” she said. “There’s nothing resembling robust accountability.”Still, changes have been made to interrogations and suspect lineups, and there is more oversight of prosecutors and access to officers’ discipline records.Standards have been improved for obtaining more reliable confessions and identifications, Mr. Rudin said, adding that judges and prosecutors are now generally more skeptical of cases built around jailhouse informants. Defense lawyers, previously stymied by limited access to prosecutors’ case information, are now entitled to more of it, and can prepare a proper defense, he said.And the politics have changed. In Mr. Salaam’s City Council campaign, he spoke often about his conviction and exoneration. In his interview, he urged measures like drug treatment instead of prison for drug offenders and allowing lower-level offenders to avoid Rikers Island.“We don’t want to put innocent people in jail,” he said.As for Mr. Hamilton, he has worked since his release as an activist and paralegal to identify and overturn other wrongful convictions, including numerous ones linked to Mr. Scarcella. He is part of a brotherhood of exonerees who cooperate to prepare legal briefs and continue to visit inmates, donate money and raise awareness about cases.“My loyalty,” he said, “is to those guys still wrongfully in prison.” More

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      As Trump Inquiry Continues, Republicans Seek Oversight of Georgia Prosecutors

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      The proposals are part of a broader push by conservative lawmakers around the country to rein in district attorneys whom they consider too liberal.ATLANTA — To Fani T. Willis, the district attorney in Atlanta, several bills in the Georgia legislature that would make it easier to remove local prosecutors are racist and perhaps retaliatory for her ongoing investigation of former President Donald J. Trump. To the Republican sponsors of the bills, they are simply a way to ensure that prosecutors enforce the laws of the state, whether they agree with them or not.Two of the measures under consideration would create a new state oversight board that could punish or remove prosecutors for loosely defined reasons, including “willful misconduct.” A third would sharply reduce the number of signatures required to seek a recall of a district attorney. The proposals are part of a broader push by conservative lawmakers around the country to rein in prosecutors whom they consider too liberal, and who in some cases are refusing to prosecute low-level drug crimes or enforce strict new anti-abortion laws.Gov. Ron DeSantis of Florida last year suspended a Democratic prosecutor in the Tampa area, Andrew Warren, after Mr. Warren said, among other things, that he would not prosecute anyone seeking abortions. The Republican-controlled Pennsylvania House voted in November to impeach Larry Krasner, the liberal district attorney in Philadelphia. And a Republican-backed bill currently under consideration in the Indiana legislature would allow a special prosecuting attorney, appointed by the state attorney general, to step in if a local prosecutor is “categorically refusing to prosecute certain crimes.”The debate in Georgia unfolding amid mounting concerns over urban crime, particularly in Atlanta. But Ms. Willis has been a centrist law-and-order prosecutor who has targeted some prominent local rappers in a sprawling gang case. She is also part of the changing face of justice in Georgia: The state now has a record number of minority prosecutors — 14 of them — up from five in 2020, the year Ms. Willis, who is Black, was voted into office. And of course, there is the Trump inquiry, the latest accelerant to the partisan conflagrations that have consumed the increasingly divided state for years. The subject of Ms. Willis’s investigation is whether Mr. Trump and his allies tried to flout Georgia’s democratic process with numerous instances of interference after his narrow 2020 election loss in the state. Ms. Willis, center, with her team during proceedings to seat the special purpose grand jury in Fulton County in May 2022.Ben Gray/Associated PressMs. Willis has said she is considering building a racketeering or conspiracy case. Anticipation is rising, particularly since the forewoman of a special grand jury charged with looking into the matter spoke publicly last month, saying that the jury’s final report, which is still largely under wraps, recommended indictments for more than a dozen people.Ms. Willis must now decide whether to bring a case to a regular grand jury, which can issue indictments. A decision ‌could come as early as ‌May.Understand Georgia’s Investigation of Election InterferenceCard 1 of 5A legal threat to Trump. More

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      Trump Pardons Michael Flynn

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      WASHINGTON — President Trump pardoned on Wednesday his former national security adviser Michael T. Flynn, who had twice pleaded guilty to lying to the F.B.I. about his conversations with a Russian diplomat and whose prosecution Attorney General William P. Barr tried to shut down.“It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon,” Mr. Trump wrote on Twitter.The presidential pardon appeared to bring to an end the drawn-out legal saga of Mr. Flynn. The Justice Department had moved in the spring to withdraw the charge against him after a public campaign by Mr. Trump and his allies, but the judge overseeing the case, Emmet G. Sullivan, had held up the request to scrutinize its legitimacy.Though Mr. Trump had said that he was “strongly considering” pardoning Mr. Flynn and was said this week to be planning for it, Mr. Barr’s intervention had left open the possibility that his administration could end the prosecution of a presidential favorite without requiring Mr. Trump to take explicit political responsibility for the act.But as the case lingered — delayed first by Mr. Flynn’s unsuccessful attempt to get an appeals court to block Judge Sullivan from reviewing the basis for Mr. Barr’s move, and then by further weeks of inaction from the judge — Mr. Trump ultimately moved to do so after all.Mr. Flynn was the only White House official to be convicted as part of the Trump-Russia investigation that was completed by the special counsel, Robert S. Mueller III. Under Mr. Trump and Mr. Barr, the administration has been trying to discredit and dismantle that inquiry. Mr. Trump also commuted the sentence of his longtime friend Roger J. Stone Jr. on seven felonies in a case brought by prosecutors working for Mr. Mueller.John Gleeson, a former federal judge and mafia prosecutor appointed by Judge Sullivan to critique the Justice Department’s attempt to drop the case against Mr. Flynn, argued that the claimed basis for the request made no sense and seemed to be cover for a politically motivated favor. He had said that Judge Sullivan should instead sentence Mr. Flynn — or that Mr. Trump should just pardon him.By doing so, Mr. Trump has now mooted that proceeding, meaning Judge Sullivan will most likely dismiss the matter. The pardon forecloses the possibility of a new legal confrontation over whether the judge could sentence a defendant who had pleaded guilty even though the Justice Department no longer wanted to pursue the case.Several Democratic members of Congress condemned Mr. Trump’s pardon of Mr. Flynn as an abuse of power.“Flynn lied to the F.B.I. about his communications with the Russians — efforts which undermined U.S. foreign policy after sanctions were imposed on Russia for interfering in our elections,” said Representative Adam B. Schiff of California, the chairman of the House Intelligence Committee. “And Flynn pled guilty to those lies, twice. A pardon by Trump does not erase that truth, no matter how Trump and his allies try to suggest otherwise.”Allies of Mr. Trump celebrated the move on social media, arguing that Mr. Flynn had been treated unfairly. And the White House spokeswoman, Kayleigh McEnany, said in a statement that the pardon brought “to an end the relentless, partisan pursuit of an innocent man.”Mr. Flynn, the former head of the Defense Intelligence Agency and a decorated lieutenant general, was an early supporter of Mr. Trump’s campaign. He was rewarded when Mr. Trump named him national security adviser shortly after winning the 2016 election, ignoring warnings from President Barack Obama, who voiced concerns about Mr. Flynn’s management of the intelligence agency.Mr. Flynn was also among a group of associates of the Trump campaign with links to Russian officials whom the F.B.I. scrutinized early in the counterintelligence investigation it opened in July 2016 to try to understand the extent of Russia’s covert interference in the campaign and whether any Trump campaign figures knew about it or were cooperating with it, wittingly or otherwise.It came to light that Mr. Flynn was lying to his colleagues about conversations he had in December 2016 with the Russian ambassador, Sergey I. Kislyak. In the calls, Mr. Flynn urged Moscow not to escalate in response to sanctions imposed by the departing Obama administration over Russia’s covert election interference to help Mr. Trump, and raised the possibility that the incoming Trump administration would work more closely with Russia.The pattern of lying raised new suspicions about Mr. Flynn. The F.B.I. sent agents to interview him at the White House even though deliberations with the Justice Department about whether to first tell Mr. Trump’s new White House counsel were not yet resolved. Notes from a meeting related to that interview suggest a purpose of the interview may have been to see whether Mr. Flynn would lie again to the F.B.I. agents — as he did.Despite firing Mr. Flynn, Mr. Trump asked the F.B.I. director at the time, James B. Comey, to end any investigation into Mr. Flynn. Details about the president’s request became public a few months later after Mr. Trump fired Mr. Comey and helped prompt Mr. Mueller’s appointment as special counsel.Although Mr. Trump initially distanced himself from Mr. Flynn, the president later began to disparage the Flynn case as part of his broader attacks on the Russia investigation as a “hoax,” a “witch hunt” and a deep-state plot to sabotage him.Over time, Mr. Flynn’s case became a cause for the right-wing media. Though Mr. Flynn had pleaded guilty and agreed to cooperate in another criminal trial — as part of a deal to also resolve his liability related to working for Turkey without registering as a foreign agent, while also serving as a top adviser to the Trump campaign — he later hired a new lawyer, Sidney Powell, reversed course and ultimately sought to withdraw his plea.Mr. Flynn was never charged in connection with the Turkey issue. The White House did not immediately release the text of the pardon itself, so it was not clear whether it was written in a way that would foreclose any potential legal liability for Mr. Flynn on that or other matters, like making conflicting statements to Judge Sullivan as part of pleading guilty and then trying to withdraw that plea. Still, Mr. Trump described the pardon as a “full” one.Before Mr. Barr intervened in an attempt to dispose of the Flynn case, Justice Department prosecutors had portrayed his admitted guilt in both matters as a betrayal of trust by a high-ranking official who “failed to accept responsibility for his conduct” and continued to lie.“The defendant monetized his power and influence over our government, and lied to mask it,” they wrote. “When the F.B.I. and D.O.J. needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it.”At the start of her representation of Mr. Flynn, Ms. Powell had written to Mr. Barr, stressing the need to keep the communication secret, and counseled a strategy of replicating the model of the 2008 prosecution of a senator — also before Judge Sullivan — whose case the Justice Department sought to dismiss after conviction but before sentencing based on a finding of prosecutorial misconduct.She asked Mr. Barr to appoint an outside prosecutor to scour the case file for any material that prosecutors should have turned over to the defense. After Judge Sullivan rejected conspiracy theories about prosecutorial misconduct that Ms. Powell put forward, Mr. Barr followed her suggestion and opened a review.The reviewer Mr. Barr appointed produced documents showing that the F.B.I. had been aggressive when it decided to interview Mr. Flynn. While the Justice Department did not say the prior failure to turn over the files amounted to any misconduct, it cited them as providing a basis for Mr. Barr to abandon the prosecution.The department’s claimed rationale centered on the idea that Mr. Flynn’s lies to the F.B.I. were not crimes because they were not material to any legitimate investigation. One of the files showed that the F.B.I. had been moving to close its inquiry into whether Mr. Flynn was a Russian agent before the question arose of why he was lying to colleagues about his calls with the ambassador.That rationale for dropping the prosecution has been widely criticized by Mr. Gleeson and others since the F.B.I. legally needs little basis to conduct a voluntary interview, and because the mystery of Mr. Flynn’s lies to his colleagues about his interactions with the ambassador, in part regarding sanctions for Russia’s election interference, seemed obviously relevant to the larger Trump-Russia investigation.Mr. Gleeson argued that the department was showing special favor for Mr. Flynn because that is what Mr. Trump wanted, and urged Judge Sullivan not to permit the judiciary to be used as cover for a politically motivated intervention — that is what the pardon power is for. Ms. Powell, for her part, portrayed the case against her client as a corrupt and politically motivated conspiracy and accused Judge Sullivan of being biased.The Justice Department was not consulted on the plan to pardon Mr. Flynn but was given notice on Wednesday before the announcement, according to a department official. The department would have preferred to see whether the matter could be resolved in court, the official said.Before taking on Mr. Flynn, Ms. Powell was becoming known for her Fox News appearances bashing the Russia inquiry. She also sold T-shirts attacking Mr. Mueller and his team on her website.Ms. Powell has in recent weeks attached herself to the Trump legal team trying to overturn his loss in the 2020 presidential election, pushing a baseless conspiracy theory that Mr. Trump had won by a landslide but that fraudulent election software instead gave the victory to President-elect Joseph R. Biden Jr. After she made particularly wild accusations that even Republican officials had been involved in a payoff scheme, the Trump team disavowed her.Katie Benner and Eileen Sullivan contributed reporting. More