NedNotes (not blog): Jim Yulman analysis of Michael Flynn Decisions

BY Jim Yulman

What's Next in the Flynn Case?

UPDATE RE COURT OF APPEALS DECISION

Apologies for the length of this follow-up to my note yesterday on Flynn. Without an understanding of the history of this case, it's not easy to follow what the Court of Appeals has done and what comes next. If you're comfortable with the history, feel free to skip to "Main Findings" below.

You will recall that Flynn pleaded guilty (twice) to lying to the FBI about telephone discussions he'd had with the Russian ambassador just before Trump took office. Flynn served briefly as Trump's National Security Advisor, but he was fired after 22 days when his misconduct was uncovered.

Seeking leniency in sentencing, Flynn agreed to cooperate with the DOJ in helping to prosecute issues arising under the Mueller Investigation. At a hearing before District Judge Emmett Sullivan, when Flynn's potential usefulness as a witness had not yet been exhausted, the Judge made some damning observations about Flynn's deeds:

Arguably, you sold your country out. The Court’s going to consider all of that. * * * It could be that any sentence of incarceration imposed after your further cooperation * * * would be for less time than a sentence may be today. I can’t make any guarantees, but I’m not hiding my disgust, my disdain for this criminal offense."

At that hearing, Judge Sullivan asked Flynn whether he wanted to proceed with sentencing. Not surprisingly, he opted to defer sentencing pending his ongoing cooperation with the DOJ.

Once the Mueller Report had been published and Bill Barr had been installed as Attorney General, Flynn's usefulness as a witness in the investigation had apparently diminished. Before Judge Sullivan could schedule a formal sentencing hearing, the DOJ, under Barr, abruptly moved to dismiss all charges against Flynn, alleging that the FBI interview in which Flynn had lied about his Russian contacts had no proper investigative context.

The DOJ prosecutors who had been handling the Flynn matter resigned rather than play a part in the Barr withdrawal scheme. He found another prosecutor to present the motion. Under Federal Rule of Criminal Procedure 48(a), in order to withdraw charges against a defendant, the government must first seek "leave of court" (in other words, the court's permission).

Usually, Rule 48(a) motions are granted as a matter of course. For example, when, after a prosecution has begun it becomes clear that someone else had committed the crime, withdrawal of charges makes sense because the defendant is not guilty.

But here, Flynn had twice pleaded, under oath, to his criminal guilt. Given the abrupt reversal of course by the DOJ, Judge Sullivan declined to immediately dismiss charges. Instead, he scheduled a hearing to examine the circumstances surrounding the withdrawal of charges.

Prosecutors are supposed represent the peoples' interests in seeing that misconduct is brought to justice. Because both the DOJ and Flynn were suddenly on the same side in seeking dismissal of charges, no one was left to argue the case for the people. Accordingly, Judge Sullivan appointed a retired Federal Judge and Prosecutor, John Gleeson, to act in a prosecutorial role as an amicus, or "friend of the court."

Before the hearing occurred, Flynn filed a Writ of Mandamus with the Court of Appeals for the DC Circuit, asking:

• that Judge Sullivan be compelled to grant the dismissal under Rule 48 on a theory that the DOJ has unbridled discretion to bring or withdraw prosecutions;
• that the appointment of the amicus be overruled since the "real" prosecutor had already decided to bow out of the case; and,
• that the case be reassigned to another judge because Judge Sullivan's comments, quoted above, and his prosecutorial interest in appointing an amicus displayed improper prejudice against Flynn.

A three-judge panel to which the Mandamus petition had been randomly assigned ruled (2-to-1) in Flynn's favor as to the first two points, holding that there was nothing for Judge Sullivan to hold a hearing on because the DOJ had an absolute right to have the case dismissed. The panel did not agree that Judge Sullivan's conduct implied improper bias.

(The author of that opinion was Judge Neomi Rao, a very recent Trump appointee. She had removed herself from consideration of the McGahn subpoena case because of her involvement in the Trump administration. Not clear why that also didn't apply here.)

Judge Sullivan filed a petition to have the case reconsidered en banc by the full panel of ten active judges on the DC Circuit Court. The Court agreed to rehearing and yesterday, it issued an decision (8-to-2), reversing Judge Rao's opinion and returning the case to Judge Sullivan for the hearing he had originally scheduled to decide whether dismissal under Rule 48 should be granted.

Main findings:

1. There was no reason to grant Mandamus because Flynn had an adequate remedy by following the regular course of business - i.e., if Judge Sullivan after the hearing declined to dismiss the case, he could appeal that decision. Mandamus is only proper where there is no other route for a petitioner to obtain relief. The Court noted that it was entirely possible that Judge Sullivan would grant the dismissal motion after sorting out the admittedly unusual circumstances of the case.
2. The appointment of Judge Gleeson as amicus was proper: "[T]he District Court has indicated through its actions an intention simply to consider the Government’s motion in the ordinary course, to which end it has appointed amicus to ensure adverse presentation of the issues. * * * The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth—as well as fairness—is ‘best discovered by powerful statements on both sides of the question.’”
3. There was no basis for Judge Sullivan to be removed from the case. His comments regarding Flynn's "disgusting" conduct were understandable: “[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of . . . proceedings[] do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”
4. There was no reason at this point to reach the ultimate question of the case, that is, whether the Judicial Branch (Judge Sullivan) can second-guess prosecutorial decisions made by the Executive Branch (DOJ).

What's Next?

The case now goes back to Judge Sullivan where he'll consider the arguments of the parties and the amicus. He'll then issue a decision

• Whether to dismiss charges against Flynn,
• Whether to cite Flynn for contempt (for possibly lying about his guilt during his pleas under oath),
• Whether to take disciplinary action against the DOJ for its conduct in this case.
• Addressing any other irregularities which may surface in the case.

There is support, in the history of Rule 48, that it was enacted, in part, to prevent collusion between prosecutors and well-connected defendants. Amicus Judge Gleeson has already filed his brief in the District Court and he does not mince words:

Rule 48(a) was designed to “guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” In other words, the rule empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals. * * * That is what has happened here. The Government has engaged in highly irregular conduct to benefit a political ally of the President. The facts of this case overcome the presumption of regularity. The Court should therefore deny the Government’s motion to dismiss, adjudicate any remaining motions, and then sentence the Defendant.

It's hard to predict how this will go. The circumstances of the DOJ's conduct are, to put it mildly, weird. The cloud of political favoritism is everywhere in this case.

Many people have pointed out that Trump will likely pardon Flynn or commute his sentence - if he ever gets sentenced. The judges who have been considering this case are certainly aware of this. The judges who pushed back against Flynn yesterday are defending something that has become all too scarce under the Barr-Trump regime: Respect for the integrity of the courts and the rule of law.