Oral Argument Summary: U.S. v. Flynn

Michael Flynn at a campaign rally for Donald Trump at the Phoenix Convention Center, 2016 (Gage Skidmore/https://flic.kr/p/MJQaAD/CC BY-SA 2.0/https://creativecommons.org/licenses/by-sa/2.0/) It is one month before the presidential election; it has been three years since the Michael Flynn case began; and there have been two D.C. Circuit decisions since Judge Emmet G. Sullivan first scheduled today’s hearing on whether to grant the government’s motion to dismiss its case against the former national security adviser.  It being 2020, this hearing takes place remotely. According to the conference call line, there are 500 people listening—more than would fit in Judge Sullivan’s courtroom. The hearing is also very long. It begins around 11:00 am and doesn’t end until just after 4:00 pm. It is also repetitive. And yet in its own way, it presents squarely and usefully a nationwide debate about the rule of law.  Sidney Powell, the lawyer for Flynn, plays the role of the table-banging Fox News pundit—furiously denouncing the witch hunt against her client that was hatched by Barack Obama and executed by his entire administration and, as she put it, continues to this day. Arguing for the government, Hashim Mooppan and Kenneth Kohl presented the more respectable, Bill Barr version of this story:  the department soberly reviewed an errant prosecution, found it wanting and, in the highest traditions of the department, decided not to proceed with it. Court-appointed amicus curiae John Gleeson, meanwhile, stands in for those of us who gape with horror at what seems like an obviously political effort to benefit the president’s crony.  And Judge Sullivan presides, clearly troubled yet not quite signaling whether he is prepared to take on case law that gives the government great leeway in dropping cases. Sullivan begins by announcing that he will go over the arguments before him on the motion, and then will ask the attorneys if he misstated anything. He says he will not focus on whether there’s a live case or controversy, since the D.C. Circuit has already addressed that. He won’t focus on whether Flynn should be held in criminal contempt of court for perjury. And he won’t focus on whether the court has the authority to appoint an amicus in a case like this.  His focus, he says, will be limited to the “essence of the controversy.” The government wants to dismiss the case against Flynn, despite his having pled guilty—twice. In moving to dismiss, the government has said that continued prosecution of Flynn would not serve the interests of justice—especially, the Justice Department lawyers claim, given recent information concerning the supposed bias of FBI officials. The government argues that Flynn’s false statements in his January 2017 FBI interview were not material to a properly predicated investigation, and the government no longer believes it can prove the falsity of his statements beyond a reasonable doubt.  The Judge Sets the Table Judge Sullivan summarizes the history of the case at some length. Flynn pled guilty to making false statements to the FBI in violation of 18 U.S.C. § 1001 . Flynn then entered the plea before U.S. District Court for the District of Columbia Judge Rudolph Contreras, but the case was reassigned to Sullivan’s court following Contreras’s recusal.In a subsequent colloquy, Flynn maintained and reiterated his guilty plea. Rather than imposing a sentence in December 2018, Judge Sullivan says he followed his usual practice of delaying sentencing until Flynn completed his cooperation with prosecutors. This is important, Sullivan says, because the court must ensure that the person cooperating receives the entire benefit of his bargain with the government.  According to Sullivan, Flynn chose not to cooperate fully with the government in mid-2019. Flynn filed a motion to compel certain material under Brady v. Maryland . So Judge Sullivan (as he does in every criminal case) issued his standing Brady order. In his motions at this time, Sullivan recounts, Flynn asserted his innocence for the first time and alleged prosecutorial misconduct. Sullivan, the judge recounts, denied his Brady motions and ruled that his false statements to the FBI were, in fact, material.  Flynn moved to withdraw his guilty plea in January 2020. At that time, he submitted a declaration saying that he didn’t lie to FBI agents, as well as a motion to dismiss his case. In February, the government opposed his motion to dismiss and denied his allegations about the conduct of FBI officials.  Sullivan continues to summarize the case history, how the government flipped positions and came to support Flynn’s motion and how he appointed former Judge Gleeson as amicus to oppose the motion to dismiss.  Sullivan says he wants to focus today’s argument on Rule 48A of the Federal Rules of Criminal Procedure , which provides that the attorney general may by leave of court file a dismissal of an indictment, information, or complaint. Gleeson, Sullivan summarizes, argues that based on the text and history of the rule, the court plays a limited but vital rule in deciding whether to dismiss the motion, regardless of whether the motion is unopposed (as it is in Flynn’s case). If judges only had discretion when motions are unopposed, the argument goes, then the judge’s power would often be meaningless. Sullivan notes Gleeson’s argument that the prosecutor’s requirement to obtain leave of court was passed specifically to guard against politically corrupt dismissals.  Per Sullivan’s summary of the argument, Gleeson says that the executive doesn’t have absolute authority over prosecution if it’s seeking to dismiss charges for corrupt, politically motivated reasons. The judge will not automatically agree with a prosecutor’s claim that dismissal is in the public interest, but shall instead demand specific and substantial reasons. Although the court will follow the prosecutor’s wishes in “the overwhelming number of cases,” Rule 48A does not mean that the trial court will serve as a rubber stamp for the prosecutor. He then turns to the government’s arguments: The government, he says, agrees that he has discretion to review a motion for leave of court; but the government argues that courts should interpret Rule 48A to give the executive branch full power to dismiss charges. To the government, judicial intervention is only necessary when the defendant objects to dismissal; it argues that Rule 48A is meant to protect the individual from prosecutorial harassment. The government contends that prosecuting someone in federal court is an executive authority, so when prosecutors decide to drop a case and the defendant doesn’t dispute that move, the court’s role is limited to determining whether it is really getting the considered institutional view of the executive branch. The parties also have significant factual disputes. To the government, Flynn’s false statements were not material to Crossfire Hurricane, the investigation into the Trump campaign’s improper dealings with Russia. There was no proper basis to continue a counterintelligence investigation or open a criminal investigation into Flynn, and it’s not clear that his statements were actually false. To Gleeson, by contrast, the false statements made by Flynn were clearly false and clearly material. Gleeson also argues that the government’s reasons for seeking the case’s dismissal are obviously pretextual. Even if Flynn is not guilty of an underlying crime, his lies could be and were still material—and Gleeson says that the lies went to the heart of Crossfire Hurricane. Still rehashing the contents of Gleeson’s briefs, Sullivan says it’s implausible that the government can’t determine if Flynn is guilty beyond a reasonable doubt. Flynn has already pleaded guilty, after all. Plus, Gleeson argues that the governm
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