This is about far more than the fate of Michael Flynn.
Last week, in an amicus curiae (friend of the court) brief [PDF], former federal prosecutor John Gleeson, a retired federal judge, together with a number of renowned attorneys and constitutional scholars, offered a scathing condemnation of the William Barr-led Department of Justice. Gleeson denounced the DOJ's "corrupt" and "politically motivated" effort to dismiss the long-running case against Flynn, Donald Trump's former National Security Advisor, who, the brief describes as a "political ally of the President."
The issue at stake in this case is not only on a matter of accountability for Trump's disgraced former National Security Advisor. It also entails a question of whether the corrupt political influence the President has exerted over an ethically compromised Attorney General will now flow into and compromise a co-equal branch of government, the federal Judiciary...
Friend of the Court
The DOJ's recent motion to dismiss the "false statements to the FBI" criminal case against Flynn, after he'd already pled guilty in the matter to two different federal judges, was filed last month by then Acting U.S. Attorney Timothy Shea. The unusual motion to dismiss represented such a dramatic departure from the factual and legal positions set forth in more than two years of prior U.S. government legal filings that the career DOJ attorneys assigned to prosecute the case resigned en masse. More than 2,000 former federal prosecutors then signed an open letter to U.S. District Court Judge Emmet G. Sullivan urging that the court carefully scrutinize the DOJ's reasons for dismissal. "Prosecutors," they wrote, "must make decisions based on facts and law, not on the defendant's political connections."
The motion to dismiss is based, in large measure, on allegations that the government violated its obligation to disclose exculpatory information to Flynn, as mandated by the Supreme Court's 1963 decision in Brady v. Maryland. This, despite the fact that, last December, by way of a 92-page decision, Judge Sullivan, siding with the DOJ's prior persuasive arguments, expressly rejected Flynn's identical allegation that the government somehow violated its Brady obligations. (In that same decision, the court also flatly rejected Flynn's allegation that he'd been the victim of an FBI "ambush interview".)
In response to the DOJ's new motion --- in which Barr's DOJ has become Flynn's advocate --- Judge Sullivan issued an order appointing Gleeson as amicus curiae "to present arguments in opposition to the government's Motion to Dismiss." Judge Sullivan also scheduled a July 16 hearing on the matter.
The DOJ now argues that it can neither prove Flynn knowingly lied to the FBI nor prove Flynn's lies were "material" to that agency's counterintelligence investigation into connections between the Trump Campaign and Russia's interference in the 2016 Presidential Election.
Because the core factual representations made by the former National Security Advisor in a sworn declaration, supporting his still-pending motion to set aside his guilty plea, directly conflict with the factual admissions Flynn previously made in sworn declarations and twice while under oath in open court in relation to his guilty plea, Judge Sullivan, in his amicus appointment order, also asked Gleeson to "address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury."
Gleeson's amicus brief, described by Harvard Law Professor Lawrence Tribe as "brilliant", argues the DOJ's ostensible reasons for filing the motion to dismiss are "preposterous" and a mere "pretext" designed to "disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is an ally of President Trump."
The dismissal motion, Gleeson asserts, evinces "gross prosecutorial misconduct". His brief delineates the scope of Judge Sullivan's discretion to deny the government's motion and sets forth the reasons why the court can and should do so.
Gleeson's core arguments align with the grave concerns expressed by U.C. Berkley School of Law Professor Orin Kerr, that Trump, with AG Barr as his willing accomplice, has engaged in "Banana Republic style interference" in DOJ prosecutions. That corrupt interference, in Kerr's view, is destructive of the DOJ's ability to impartially enforce the law.
Flynn's "emergency" writ petition
Despite the fact that Judge Sullivan is proceeding expeditiously on the DOJ's motion to dismiss, Flynn filed an emergency petition for a writ of mandamus [PDF] with the D.C. Circuit Court of Appeal seeking an order to compel Sullivan to summarily grant the DOJ's motion. As illustrated last Friday, during oral arguments before the appellate court, both Flynn and the DOJ argued that Judge Sullivan lacked the authority to schedule the July hearing, to seek an opposition legal brief from amicus curiae or even to question the validity of the DOJ's reasons for seeking a dismissal order.
Flynn's emergency petition was assigned to a three-judge appellate panel --- Reagan appointee Karen L. Henderson, Obama appointee Robert L. Wilkins, and Trump appointee, Neomi Rao. The appellate panel instructed Judge Sullivan to respond to Flynn's emergency petition.
Beth Wilkinson, the veteran trial attorney retained to represent Sullivan, filed a brief [PDF] in the DC Circuit Court of Appeals opposing Flynn's emergency petition. She argued that Judge Sullivan should be allowed to conduct a hearing and then rule on the DOJ's effort "to contradict the solemn representations that career prosecutors made time and again". She described the DOJ's motion as an "unprecedented" effort that also sought to contest the prior "legal and factual findings" of two federal judges.
During oral arguments, all three judges questioned the argument by Flynn and the DOJ that it was improper for the district court judge to appoint amicus curiae, especially as it related to the contempt of court issue. Judges Henderson and Wilkinson left little room for doubt that the appellate panel will permit Judge Sullivan to conduct the July 16 hearing and make his own determination as to whether the DOJ motion to dismiss should be granted. But the case could again come before the same panel if Judge Sullivan denies the DOJ's motion.
Judge Wilkins' statements suggest he'd likely vote to uphold a denial of the DOJ's motion to dismiss if it is factually justified.
He stressed that the dismissal motion not only challenged the evidence behind the original charges, but also noted that "two different district judges, as part of their obligation under Rule 11, made factual findings as to materiality and the basis for the [guilty] plea." He observed that the government was now not only contesting the positions taken by career DOJ prosecutors throughout, but was contesting prior court rulings. Wilkins also noted that the principal case relied upon by Flynn and the DOJ did not even deal with a Rule 48(a) motion to dismiss. Instead, Flynn and the DOJ relied upon a case involving a speedy trial motion, which is not governed by Rule 48(a). "All of the 48(a) opinions from every court has said the court has some role…making sure that there's not something done contrary to the public interest," Wilkins said.
That observation fits tightly with Gleeson's interpretation of Rule 48(a) in his amicus brief. (See below).
In response to the DOJ's remarkable assertion that it did not have to reveal all of its reasons for seeking a dismissal, Judge Wilkins erected a hypothetical case in which the DOJ filed a motion to dismiss a case after a federal law enforcement officer had pled guilty to using excessive force. When the DOJ's counsel suggested a district court could not inquire into the reasons why a prosecutor was seeking a Rule 48 dismissal, Judge Wilkins responded: "Even if the prosecutor was dismissing the case because [the prosecutor] did not believe that a white police officer should have to answer for using excessive force on a black defendant?"
Authority to deny DOJ's dismissal motion
In his amicus brief, in addition to appellate case law, Gleeson cited the history and text of Rule 48(a) of the Federal Rules of Criminal Procedure [PDF] as vesting, in a district court, the discretion to deny the DOJ's motion to dismiss the Flynn case.
"Before the passage of Rule 48," Gleeson noted, "federal prosecutors enjoyed the un-reviewable prerogative to...dismiss a pending charge...Over time, the corrupt dismissal of criminal cases against powerful, politically connected defendants sparked a judicial backlash." Those concerns ultimately led to the U.S. Supreme Court's 1944 adoption of Rule 48(a), which mandates that a prosecutor can dismiss a criminal case only upon "leave of court".
Rebutting the DOJ's argument that "leave of court" only authorizes the court to deny a prosecutor's motion to dismiss where it is opposed by the defendant, Gleeson not only cited the absence of that limitation in the text of Rule 48 but also quoted from a 1975 5th Circuit decision, United States v. Cowan:
A 'pretext' for corrupt purpose
In order to maintain judicial integrity, Gleeson forcefully argued, a court, as a separate constitutional branch of government, may deny leave to dismiss where the reasons offered by prosecutors are but a "pretext" for concealing a corrupt purpose or where the motion reflects "gross prosecutorial misconduct". Both reasons, in Gleeson's view, apply in this instance.
The "pretext", Gleeson observed, can be found in the DOJ's new assertion that it could not prove that Flynn knowingly lied when, during a Jan. 23, 2017 White House meeting with two FBI agents, Flynn repeatedly claimed that he did not recall discussing sanctions with Russia's Ambassador Sergei Kislyak. The sanctions had been imposed by the Obama administration in response to Russia's interference in the 2016 election.
At the time of their White House meeting, the FBI agents had, in their possession, transcripts of a series of Flynn/Kislyak phone conversations that took place between 12/16/16 and 12/31/16. The calls had been recorded as part of the FBI's investigation, code named "Crossfire Hurricane", into Russian interference in the 2016 election and whether U.S. citizens associated with the Trump Campaign had conspired with Russia in that eneavor.
During those lengthy calls, Flynn conveyed to Kislyak that the then incoming administration did not want Russia to react harshly to the Obama administration's sanctions; hinting that the new administration would lift them. They included a return call in which Kislyak conveyed to Flynn that Russian President Vladimir Putin agreed not to respond harshly in kind.
After Flynn's initial "I don't recall" answers, the agents honed the inquiry by using the very language used by Flynn during his conversations with Kislyak. Flynn persisted, claiming he did not remember discussing sanctions with Kislyak.
On Feb. 13, 2017, at the behest of the President Trump, Flynn resigned, ostensibly because he'd lied to members of the Trump Administration about his conversations with Kislyak
Under oath and under penalty of perjury
Over the ensuing 3 years, the FBI, the DOJ and the Office of Special Counsel Robert Mueller all asserted that Flynn deliberately lied to FBI agents and that those lies were "material" to the FBI's ongoing counterintelligence investigation. But it isn't just the inconsistency with the government's prior filings or the strength of the record. The government does not have to prove that Flynn deliberately lied, Gleeson noted, because Flynn, in conjunction with his guilty plea, repeatedly admitted he knowingly lied and that those lies were "material" to the investigation.
In conjunction with his 11/30/17 agreement to plead guilty, Flynn, under penalty of perjury, admitted he knowingly lied when he told the FBI agents he didn't recall discussing sanctions with Kislyak. He also admitted those lies were "material" to the ongoing FBI counterintelligence investigation.
In federal cases, the acceptance of a guilty plea is not a perfunctory procedure. Under Rule 11 of the Federal Rules of Criminal Procedure, a federal judge must place the defendant under oath; ask a series of questions designed to assure the defendant understands the rights he/she is waiving; determine whether "the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement)." The court cannot "enter judgment on a guilty plea" absent its own determination "that there is a factual basis for the plea."
On 12/1/17, after being placed under oath in open court, Flynn confirmed his plea agreement admissions and said he was entering a plea of guilty "because he was guilty and for no other reason." District Court Judge Rudolph Contreras accepted the guilty plea and entered judgment, expressly finding that the plea was "voluntary" and that there was "an adequate factual basis" to find guilt.
As Judge Sullivan observed in his 12/16/19 decision, during his 12/18/18 sentencing hearing, Flynn not only confirmed the plea agreement admissions, but also confirmed that he "maintained his plea of guilty upon the advice of counsel." Flynn "neither challenged the conditions of his FBI interview nor expressed any concerns with the government's [Brady] obligations" during that sentencing hearing. Like Judge Contreras before him, on 12/18/18 Judge Sullivan expressly found that Flynn "entered his guilty plea while competent and capable" and "there was and is a factual basis for Mr. Flynn's plea of guilty."
In his 12/16/19 decision, after Flynn obtained new counsel and presented an all-new set of arguments, Judge Sullivan rejected Flynn's allegations --- now repeated in the DOJ's new motion to dismiss --- that the government violated its Brady obligations. In that same decision, Judge Sullivan reiterated Flynn's prior sworn admissions that he'd knowingly lied to the FBI agents about discussing sanctions with Kislyak. Judge Sullivan again laid out, in detail, the factual and legal reasons why those lies were "material" to the FBI's counterintelligence investigation.
In his amicus brief, Gleeson argues that, even without Flynn's prior sworn admissions, the DOJ's new effort to contest "materiality" is "preposterous".
Under settled law, no more is needed.
Gross prosecutorial abuse
A prosecutor's motion to dismiss is entitled to a presumption of regularity. However, facts demonstrating justifications for the motion were but a pretext, together with "additional circumstances" which overcome that presumption, according to Gleeson. Those circumstances include Flynn's close ties to the President, "coordination between Flynn and other transition team members" immediately prior to his conversations with Kislyak, and the President's "unusual" Oval Office conversation with then FBI Director James Comey in which Trump said, "I hope you can see your way...to letting Flynn go."
Gleeson noted that the President has had an "ongoing commentary" entailing more than 100 tweets in which he expressed his desire that "Flynn's prosecution end" and by which he expressed "deep animosity towards those who investigated and prosecuted Flynn."
Gleeson found it noteworthy that in March of this year, the President tweeted he was "strongly considering a Full Pardon" for Flynn and that approximately one week prior to the filing of the DOJ's motion to dismiss, Trump tweeted that the Flynn prosecution was a "scam"; that Flynn had been "tormented" and "persecuted" by "dirty, filthy cops at the head of the FBI." Trump advanced the very narrative that found its way into the DOJ's motion to dismiss.
Quoting Harvard Law Professor Jack Goldsmith, Gleeson observed that every previous post-Watergate President "embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters." The current President, however, "has publicly repudiated settled, foundational norms of prosecutorial independence."
Gleeson concedes that the "Executive Branch had the unreviewable discretion to never charge Flynn with a crime...But the instant the Executive Branch filed a criminal charge against Flynn, it forfeited the right to implicate this Court in the dismissal of that charge simply because Flynn is a friend and ally of the President." (Emphasis added).
Stated another way, the Court cannot grant the DOJ "leave to dismiss" in this case without becoming complicit in the President's corruption of the rule of law. It would be tantamount to an abandonment of the Judiciary's constitutional function to act as a check against Executive Branch abuses of power.
UPDATE 6/24/20: Today, by way of a 2 - 1 decision, the appellate panel ordered Judge Sullivan to dismiss the Flynn case without a hearing. In an opinion, authored by Trump appointee, Neomi Rao, the court also ruled that Judge Sullivan should not have sought an amicus brief to address whether an order to show cause should issue as to whether Flynn should be held in contempt.
Judge Robert L. Wilkins authored a blistering dissent:
Wilkins sharply criticized the majority for relying upon inapposite court decisions and for ignoring appellate authority that would have mandated a denial of mandamus.
Neither Rao's nor Wilkinson's positions come as a surprise. The fact that Judge Henderson joined with Rao in granting the writ was unexpected. As observed by C. Ryan Barber of Law.Com, during oral arguments, Henderson had expressed reluctance to step into the case at this junction, expressly noting that was "an old hand" and an "excellent trial judge."
The decision drew a harsh reaction from Norm Eisen, the attorney who had assisted the House Judiciary Committee during the Impeachment Inquiry. "It is an excrescence, as the dissent points out," Eisen quipped, adding: "It guts one of the most important safeguards of our democracy: an independent judiciary."
While it would be unusual for him to do so, Judge Sullivan could request a rehearing en banc by the full D.C. Circuit Court of Appeals, where the majority of the judges were nominated by Democratic Presidents. Under Rule 35 of the Federal Rules of Appellate Procedure, the Court of Appeals can also grant a rehearing on its own motion if "the proceeding involves an issue of exceptional importance." Needless to say, given that the very integrity and independence of the judiciary is at stake, this is a case of "exceptional importance."
When asked by MSNBC's Lawrence O'Donnell whether the controversial 2 - 1 appellate decision was the end of the Flynn story, former Acting Solicitor General Neal Katyal replied: "Absolutely not", adding that the majority's legal opinion was "legally flimsy, to put it mildly."
UPDATE 7/10/20: U.S. District Court Judge Emmett Sullivan, after issuing stay orders with respect to the previously scheduled briefings and hearings, filed a petition with the full D.C. Circuit Court of Appeal, asking that it grant a rehearing en banc.
Judge Sullivan argued that the panel decision "undermined" both Supreme Court and DC Circuit precedents; that, by granting the extraordinary remedy of mandamus before the district court could hear and consider the Rule 48 motion, the panel majority decision "threatens to turn the judicial process upside down. It is the district court's job to consider and rule on pending motions," the Sullivan petition noted. "Appellate courts review those decisions, they don't preempt them."
Like Judge Wilkins' dissent, which was cited, Sullivan sets forth why the panel majority decision was at odds with Supreme Court and DC Circuit precedents regarding mandamus, Rule 48 motions to dismiss and the right to appoint amicus curiae.
The decision whether to grant a rehearing is now before the full D.C. Circuit. Under court rules, a rehearing will not be granted unless a majority of the full D.C. Circuit's 11 judges agree to it. At the present time, four (4) of the DC Circuit judges were appointed by Republican Presidents; seven (7) by Democratic Presidents.
UPDATE 7/30/20: The full D.C. Circuit Court of Appeal granted Judge Sullivan's petition for a rehearing en banc, vacated the 6/24/20 order directing Judge Sullivan to summarily grant the DOJ's motion to dismiss, and scheduled oral arguments for August 11. Because the prior Appellate Court order was vacated, Judge Sullivan has the legal right to immediately reinstate a briefing schedule and to schedule a new hearing on the motion to dismiss.
UPDATE 9/2/20: On 8/31/20 the full D.C. Circuit Court of Appeal denied Flynn's petition for a writ of mandamus and also denied a request that the matter, on remand, be assigned to a different judge. The Court explained that it had granted the motion for a rehearing sua sponte (on its own motion) so that it did not have to reach the issue as to whether Judge Sullivan had a right to petition for a rehearing.
The matter will now be returned to the District Court so that Judge Sullivan can conduct a hearing and determine whether he should grant the DOJ's Rule 48 motion to dismiss. But that wasn't the only issue before the Court. During the en banc proceedings, both Flynn and the DOJ argued that Judge Sullivan violated the Separation of Powers doctrine when he appointed Gleeson to submit an amicus curiae brief. The Court rejected that argument, noting: "precedent and experience have recognized the authority of courts to appoint an amicus to assist in their decision-making, including in criminal cases and even when the movant is the government."
The Court revealed that it expects Judge Flynn to rapidly resolve the issues raised by the motion to dismiss, noting: "we trust and expect the District Court to proceed with appropriate dispatch."