Fortunately, the court has many tools to vindicate the public interest. It can require the career prosecutor to explain why he stepped off the case, as another federal judge recently did when the Trump administration attempted to replace a trial team litigating the politicization of the census. It can appoint an independent attorney to act as a “friend of the court,” ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role. If necessary, the court can hold hearings to resolve factual discrepancies.
And the court could compel the department to reveal the one thing it has thus far refused to show — the actual evidence underlying the prosecution. To help Flynn, the department has made public documents it jealously guards in almost every other case, including confidential memos and internal deliberations. But it has balked at disclosing the transcripts of the very conversations with the Russian ambassador that Flynn admitted he lied about when the FBI interviewed him.