Attorney General William Barr’s decision to refuse to comply with a judge’s order to release transcripts of calls between Michael Flynn and Sergei Kislyak is looking more bizarre by the moment. Turns out they haven’t even attempted to appeal that order to a higher court but just flat out refuse it. This is very dangerous for an attorney general to do.
Constitutional scholar Laurence Tribe tells me, “Even if the district court’s order to release the Flynn-Kislyak transcripts goes further than justified by the sentencing matter before the court, I would’ve thought that, in a government of laws, the only way to avoid compliance is to take an appeal to a higher court.” The government made its arguments to the court, did not obtain a stay to our knowledge and did not seek an emergency appeal. From all appearances, the Trump administration has deliberately and willfully defied a court order.
“Normally when prosecutors don’t want to make something public for national security reasons, etc., they file a document under seal with the judge explaining that reasoning and requesting relief from the presumption that things should be made public,” says former prosecutor Mimi Rocah. “The fact that the government didn’t do that here is puzzling. Instead, they took a very unusual tact of refusing the judge’s order publicly. which suggests that they didn’t think the judge would go along with keeping the material under seal.” Rocah continues, “While it doesn’t necessarily mean they don’t have legitimate motives, the disrespectful and atypical nature of their action makes me suspicious. And it certainly doesn’t mean the judge is just going to say, ’Okay, let’s just forget I asked.’ ”
The judge in the case, Emmet G. Sullivan, is known to be very tough on prosecutors and to be willing to take drastic action if necessary. I won’t be surprised to see Barr up on contempt charges very soon.