No Finality For Flynn: Judicial Chaos Is Justice Denied

The case United States v Michael T. Flynn has become a neverending saga of chicanery, controversy, and arguably corruption. Even though by all outward appearances, the case should have ended on May 7 with the Department of Justice filing a motion to dismiss the case with prejudice, Judge Emmet Sullivan seems determined not to let the case go gently into that good night. 

On May 12, Judge Sullivan delayed his final ruling on the motion by opening the proceedings up for potential filings by amicus curiae wishing to opine on the propriety or impropriety of the motion. On May 13, Judge Sullivan fueled controversy even further by issuing an order appointing retired judge John Gleeson as amicus and directing him to present arguments against the DoJ's motion. Judge Gleeson is further ordered to present arguments regarding a possible contempt charge against General Flynn for his efforts to withdraw his guilty plea. Both orders represent a significant departure from normal trial procedure within the Federal courts.

In many ways, the Flynn case has become a disturbing political Rorschach test across American society, with perceptions of Lieutenant General Flynn's ultimate guilt or innocence, as well as the severity of his alleged offense, colored primarily by whether one supports or opposes President Donald Trump. One need only briefly consider Congressman Jerry Nadler's Twitter meltdown over the motion to dismiss to apprehend the passion and the illogic governing peoples' view of the Flynn case.

We must be mindful, however, that within the American legal system criminal trials are not to be governed by political considerations, but solely by relevant facts and applicable law. The facts especially in Flynn's case are not friendly to Judge Sullivan's actions, and suggest that Sullivan, far from keeping political animus away from the proceedings, has made it the essence of the case.

The Facts

The core of the case against General Flynn is the assertion that Flynn made "materially false statements and omissions" during a January 24 FBI interview, that being the top count of the charge and a felony under 18 USC §1001. It was to this charge that General Flynn pled guilty in December 2017.

The government's case has always labored under a significant defect: the crime itself never happened. That, at least, was the testimony presented by then-FBI Director James Comey in a March 2017 closed-door hearing of the House Intelligence Committee.

Former FBI Director James Comey testified to the House Intelligence Committee that FBI agents did not believe that Michael Flynn, who was national security adviser, intentionally lied about talks with Russia’s ambassador, according to a newly unredacted report from the committee.

In the Intelligence Committee's report, Comey's testimony was supported by then-Deputy Director Andrew McCabe.

"Deputy Director McCabe confirmed the interviewing agent’s initial impression and stated that the 'conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador,'" the report states. 

After Comey's and McCabe's testimony, members of Congress were of the belief that Flynn was not going to be charged by the FBI.

According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview. 

It was only after Robert Mueller began his special counsel investigation that General Flynn became a particular target of government scrutiny and pressure, which culminated in his December, 2017, guilty plea.

Subsequent leaks from DoJ sources revealed that Mueller's team coerced the plea by threatening, among other things, to investigate (and presumably indict) Michael Flynn's son.

Flynn plead guilty after Mueller threatened Flynn’s family, including his son Michael Jr. According to sources close to Flynn family, Mueller threatened Flynn on multiple occasions that if he did not plead guilty to lying to the FBI, Mueller would investigate other Flynn family members.

Disturbingly, there appears to have been no basis for even the January 24 interview wherein Flynn's false statements were allegedly made. Evidence disclosed just prior to the government's decision to dismiss the case revealed that, in early January 2017, the FBI was prepared to close out its investigation of General Flynn, but was stopped by then-head of FBI counterintelligence operations Peter Strzok.

On Jan. 4, 2017, William Barnett, one of the agents managing the Flynn case, drafted a document to close the case, saying there were no more investigative leads to follow. 

That afternoon, then-head of FBI counterintelligence operations, Peter Strzok, reached out to Flynn case manager, urging him to keep the case open (the documents indicate the case manager was likely Barnett).

This lack of an apparent predicate for an investigation after January 4 was a key finding that led the DoJ motion to dismiss, and was specifically cited in the motion. 

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. 

Moreover, there are indications that the interview itself was intended as some form of "perjury trap", wherein General Flynn was induced into making statements at odds with other information previously developed by the FBI and thus triggering a charge under 18 USC §1001. Contemporaneous notes taken by then-Assistant Director for FBI Counterintelligence Bill Priestap during planning discussions for the January 24 interview indicate uncertainty by him regarding the objective of the interview:

“What’s our goal? Truth/Admission or to—get him to lie, so we can prosecute him or get him fired?” the official wrote, dating the notes Jan. 24, 2017, and signing with initials “EP,” reportedly standing for Edward William Priestap, then-FBI head of counterintelligence.

Even at that, the facts suggest that the trap itself failed. When Flynn was asked about discussing sanctions with the Russian ambassador, Flynn did not recall the particulars of what he said.

As part of the rather sprawling interview, Flynn denied talking to Kislyak about sanctions. The agents asked again: Did he ask for Russia to not engage in “tit-for-tat?” 

He seemed less sure. “Not really. I don’t remember. It wasn’t, ‘Don’t do anything,’” he said, according to the agents’ report from the interview and their notes.

Another disturbing fact that has emerged since Flynn pled guilty: much of this demonstrably exculpatory material went "missing" when the FBI was ordered to disclose all such material to Flynn's defense team.

Conspicuous by their absence in this recitation of facts are any that are inculpatory--i.e., facts that point to General Flynn's guilt rather than to his innocence.

The Law

The crime with which Flynn was charged and to which he pled guilty is found at 18 USC §1001, which states that for making "... any materially false, fictitious, or fraudulent statement or representation..." a person

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

After completing a review of the Flynn case, the DoJ concluded that not only was it highly debatable whether Flynn had in fact lied to the agents who interviewed him, the lack of a proper investigative predicate meant that no false statement made during that interview could be considered "material" for the purposes of prosecution.  Accordingly, the DoJ filed a motion to dismiss under Federal Rule of Criminal Procedure 48(a). 

The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.

The rule itself puts the final decision to dismiss in Judge Sullivan's hands, although this is widely regarded as a formality, as several controlling court opinions and rulings have established.

The most sweeping precedent is Rinaldi v. United States, (434 U.S. 22) a 1977 Supreme Court ruling that overrode a District Court's refusal to dismiss under Rule 48(a), despite the DoJ having determined the prosecution itself was brought in error, as the defendant had already been prosecuted in state court for substantially the same offense--an established DoJ policy known as the Petite policy intended to safeguard against multiple prosecutions for the same offense. Specifically, the Court held that the District Court had little latitude for denying a government motion to dismiss its own case.

The overriding purpose of the Petite policy is to protect the individual from any unfairness associated with needless multiple prosecutions. The defendant, therefore, should receive the benefit of the policy whenever its application is urged by the Government. Without derogating from the concern expressed by the Court of Appeals regarding the actions of certain Government officials at an earlier stage in this prosecution, we agree with the Solicitor General that

"[n]o action by the Department or the Court can now replace the waste of judicial and prosecutorial resources expended in obtaining petitioner's conviction . . . , [and] no societal interest would be vindicated by punishing further a defendant who has already been convicted and has received a substantial sentence in state court and who, the Department has determined, should not have been prosecuted by the federal government."

With no overriding societal or judicial concerned being served by the errant prosecution, the Supreme Court remanded the case to District Court with specific instruction to dismiss under Rule 48(a).

This view was further amplified and reiterated in 2016 by the D.C. Circuit Court of Appeals in United States v. Fokker Services. B.V. (818 F.3d 733). Specifically, the DC Circuit held that decisions to prosecute--or to terminate prosecution--are unambiguously the province of the Executive Branch, and not that of the Judiciary.

In vacating the district court order, we have no occasion to disagree (or agree) with that court's concerns about the government's charging decisions in this case. Rather, the fundamental point is that those determinations are for the Executive—not the courts—to make. 

Simply put, so long as there is no taint or impropriety in the government's motion to dismiss--e.g., the motion is not a tactical dismissal with a view towards resubmitting substantially the same case at a later date--the court has no grounds to refuse to grant the motion. The "leave of the court" provision within Rule 48(a) exists primarily as a protection for the defendant against arguably unethical prosecutorial tactics.

Intriguingly, perhaps the most specific precedent on record is a ruling issued by none other than Judge Sullivan himself in 2019. In United States v Pitts (331 F.R.D. 199), Judge Sullivan noted specifically that Rule 48(a) was crafted as a protection for the defendant, and not as a vehicle for tactical prosecutions, and thus the guiding principles regarding whether or not to grant a dismissal were whether or not the government was engaged in explicitly prohibited conduct.

However, dismissing a case without prejudice only to bring charges when the case is in a better posture for the government is precisely the type of strategic use of Rule 48 that the D.C. Circuit has proscribed.

It is important to note at this point that the DoJ motion to dismiss the Flynn case under Rule 48(a) specifically states "with prejudice", which thus directly addresses Sullivan's own judicial concerns in the Pitts case.

Indeed, legal commentators have noted that, due to the foregoing precedents, Judge Sullivan has precious little room for contesting or opposing the dismissal.

To deny the government’s current motion, in other words, Sullivan would have to distinguish this case from broad and controlling precedent. Particularly given that the government is seeking to dismiss the charge with prejudice (so that no future Justice Department could refile the case), Sullivan could not reasonably conclude that the dismissal is part of any broad pattern designed to harass the defendant. Instead, he would have to read into the Rule 48(a) standard some broader exception for bad faith dismissals.

Judge Sullivan Goes Rogue?

Instead of adhering to controlling precedent, however, Judge Sullivan has embarked on a novel judicial strategy. First he issued a minute order on May 12 giving leave for interested third parties to submit public comments as amicus curiae.

Unsurprisingly, this order was strongly opposed by General Flynn's defense counsel Sidney Powell, who immediately fired back with a motion to deny the amicus filings, arguing that such briefs are specifically prohibited within criminal proceedings.

It is no accident that amicus briefs are excluded in criminal cases. A criminal case is a dispute between the United States and a criminal defendant. There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel. For the Court to allow another to stand in the place of the government would be a violation of the separation of powers.

In an ironic twist, one of the cases Sullivan cited in his minute order was the same Fokker case referenced earlier regarding the role of the courts in gauging the government's capacity to proceed with a prosecution. In a further ironic twist, that case argues against accepting amicus briefs in criminal cases.

The very next day, on May 13, Judge Sullivan went even further off the beaten track by issuing an order appointing retired Judge John Gleeson as amicus curiae to present arguments on whether or not General Flynn should be charged with contempt of court and perjury--and in so doing arguing against the Rule 48(a) motion to dismiss.

ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. §401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law. 

This order provoked considerably outcry from a number of legal commentators, in large part because a charge of perjury has not formed any part of the case up to this point.

Writing in Forbes, lawyer and civil liberties advocate Mark Chenoweth argues that Judge Sullivan is willfully disregarding at least two key precedents.

Barely a week before Judge Sullivan issued his contentious order, the Supreme Court ruled 9-0 against unjustified amicus appointments in US v Sineneng-Smith. In particular, Justice Ruth Bader Ginsburg, writing the unanimous opinion, took the Ninth Circuit Court of Appeals to task for violating the "party presentation principle."

In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them.

Following the "party presentation principle", Judge Sullivan has no standing to venture beyond the scope of the original charge into questions of criminal contempt and perjury. With or without an amicus appointment, Judge Sullivan is painting outside the lines.

Even worse than in Sineneng-Smith, however, is the disquieting fact that Sullivan's amicus appointment is for the express purpose of arguing against the criminal defendant. In Sineneng-Smith, the Ninth Circuit at least had the saving grace of introducing amicii to argue for the defendant.

The Fokker case arguably sets an even stronger precedent against Judge Sullivan's amicus order, as it explicitly affirms that decisions to charge or not charge a criminal defendant belong to the Executive and not to the Judicial Branch of the government.

The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive's charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences. 

The language of Fokker does not give any leeway for Judge Sullivan, nor any other judge, to appoint either amicii or special prosecutors for the express purpose of exploring charges not brought before the court by the Justice Department.

Again, this view is supported by a number of legal commentators. Writing in The Federalist, former federal law clerk Margot Cleveland excoriated Judge Sullivan's order, describing it as "lawless" and blatantly unconstitutional.

The Fokker decision was a 2016 decision from the D.C. Circuit Court and, as such, establishes “mandatory precedent,” i.e., precedent that must be followed, by all D.C. district court judges—including Judge Sullivan. Thus, Judge Sullivan’s directive that Judge Gleeson, as amicus curiae, should “present arguments in opposition to the government’s Motion to Dismiss,” cannot stand: It conflicts with controlling circuit court precedent, and more significantly with the U.S. Constitution.

Simply put, the question of a perjury charge is not for Judge Sullivan either to introduce or to answer.

Update:
The DC Circuit Court of Appeals appears to be leaning towards similar conclusions. 

General Flynn's lawyer Sidney Powell filed a Writ of Mandamus with the appellate court on May 19, seeking an order to compel the lower court to grant the DoJ motion and dismiss the Flynn case, while also removing Judge Sullivan from hearing any further matters on the case. The appellate court responded on May 21 with a per curiam order for Judge Sullivan to respond no later than June 1. This is a fairly short time frame, and arguably is an indicator that the appellate bench feels Sullivan needs to explain his actions post haste.

Facts And Law Matter, Feelings Do Not

While people are at liberty to debate the law governing the Flynn case, there can be no debate that the only relevant considerations are the facts and the law. There are no political considerations relevant to a criminal proceeding. There are no emotional arguments dispositive to a criminal case. In a criminal case, there are only the facts, and only the law.

Nor should we turn a blind eye to the presentation of evidence that General Flynn's guilty plea was illegally coerced. The annals of criminal law are replete with examples and studies showing just how often demonstrably innocent defendants plead guilty. The National Registry of Exonerations at the University of Michigan is full of case citations where defendants resolved their cases through a guilty plea. It is an uncomfortable and inconvenient truth of our system of justice that the innocent often feel compelled to plead guilty, and for reasons wholly disconnected from the facts of the case.

There is room to debate the propriety of the Justice Department motion to dismiss. As with any decision of the Executive Branch, it can and should be held up to scrutiny, and if the decision is found to be indefensible, then it should not be defended, and those officials of the Executive Branch responsible for a decision held to suitable account for that decision.

There is no room to debate the contentions of the Justice Department within the motion itself. The Justice Department asserted in that motion that General Flynn should not even have been under investigation at the time of that January 24, 2017, interview. The Justice Department stated explicitly that the FBI erred not just in violating standard protocol by not going through the White House Counsel office to arrange for the interview of Michael Flynn, but in organizing the interview at all. The Justice Department stated quite emphatically that it had no confidence it could win the case should it proceed to trial. We may argue the merits of that decision but we may not argue that the decision belongs to the Justice Department; it is their decision and theirs alone.

The Constitution, the statutes, and all applicable case law defer in such matters to the wisdom of the Executive. If the Justice Department lacks confidence in its case, the courts are not given any leave to second guess that decision.

Neither can we ignore the multiple indicators of General Flynn's fundamental innocence. The plan to set up a "perjury trap" is documented. So, too, is Peter Strzok's determination the case against Flynn be kept open despite any evidence of any wrongdoing. The conclusions of the FBI agents themselves, that Flynn did not make false statements to the FBI, are part of the court record. The testimonies of James Comey and Andrew McCabe, confirming those conclusions, are part of the Congressional record.

No matter our personal opinions of General Flynn, we owe ourselves this much truth: In their handling of this case, the FBI, Robert Mueller's investigation team, and Judge Emmet Sullivan have all failed to advocate for either law or order. Instead, they have been servants of judicial chaos. Where there is judicial chaos, there can never be any.

This is the state of the case against Michael Flynn: Justice Denied.

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22 May 2020: Updated to include Sidney Powell's Writ of Mandamus and the DC Circuit Court of Appeals response.