Editor’s note: The following is not a prediction. It is merely one person’s vision of how Judge Emmet Sullivan, the judge in the Michael Flynn case, might hypothetically address the recent motion of the United States Government to drop charges. While nobody can say precisely how the judge will handle the situation, it is hoped that this hypothetical scenario will help highlight some of the salient issues in the case. Rather than raise those issues in a lengthy screed, I thought it might be more entertaining to raise them in the context of this hypothetical scenario. Anyone who criticizes this post by calling it a prediction or a fantasy is lying to you. Enjoy.
THE COURT: Good morning.
THE COURTROOM CLERK: Good morning, Your Honor. This is criminal case 17-232, United States of America vs. Michael Flynn. Will all parties please come forward to this lectern and identify yourselves for the record?
MR. SHEA: Good morning, Your Honor. Timothy Shea on behalf of the United States.
THE COURT: Good morning, counsel.
MS. POWELL: Good morning, Your Honor. Sidney Powell for the defendant, Michael Flynn.
THE COURT: Good morning, counsel. We are here today to consider the Government’s motion, filed on May 7, 2020, to dismiss the criminal information against the defendant. Before we get started, Mr. Shea, I know that you are rather new to this case, but this Court is not. This Court has had Mr. Flynn’s case for quite some time now, since December 7, 2017, in fact. So before we consider your motion, I’d like to go through some of the history of this case that brought us here.
[History of the case given]
THE COURT: Now, with that background, I’d like to turn to the Government’s motion. Mr. Shea, as I read your motion, the Government is moving to dismiss the defendant’s information for two reasons. First, you say that the FBI’s interview of the defendant was, quote, “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that therefore, quote, “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.” As a second ground, you say, quote: “We not believe” — I think you meant to say “We do not believe” — “that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.” You say you base this decision on, quote, “newly discovered and disclosed information appended to the defendant’s supplemental pleadings.”
Let me first address the threshold question of this Court’s role. Your motion is made pursuant to Rule 48. Rule 48, subdivision (a), states: “The government may, with leave of court, dismiss an indictment, information, or complaint.” I assume you agree with the Court that the Government does not have authority to dismiss this information on its own? In other words, you agree you need to obtain leave of this Court before this case can be dismissed?
MR. SHEA: Yes, the Government understands that Rule 48 requires leave of court, but as we emphasized in our brief, just as it is not this Court’s role to second-guess the charging decisions of the Government, it is also improper for this Court to second-guess the Government’s, quote, “conclusion that additional prosecution or punishment would not serve the public interest.” That’s a quote from the Fokker case we cited, from page 743 of the court’s decision, and that goes to the dismissal of charges even after a guilty plea. So while we do need to obtain leave of court as a technical matter, the requirement to obtain leave of court exists, as the Fokker case states, quote, “primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial harassment’ of the defendant,” end quote, through repeated prosecutions — and it’s our view that this is not a concern for this Court because we are asking the Court to dismiss Mr. Flynn’s case with prejudice, which would of course prevent repeated prosecutions of the sort the Fokker court was concerned with.
THE COURT: Yes, but that’s not the only function of this court, is it?
MR. SHEA: The Fokker court was quoting the United States Supreme Court in saying it was the primary concern.
THE COURT: I didn’t ask you if it was this Court’s primary concern. I asked if it was this Court’s only concern. And the reason I bring that up is because it very clearly is not the Court’s only concern. I think we can all agree that the governing case here is the Supreme Court case you cite in your brief of Rinaldi v. United States, 434 U.S. 22, and you don’t give the year but I will note for the record that the case was decided in 1977, for the proposition that it was an abuse of discretion in that case for the trial court to deny a request to dismiss a case after entry of a plea. And footnote 15 of that case does discuss the so-called “primary” concern you mentioned of protecting the defendant from harassment. But that same footnote also says, quote, “the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest,” unquote. And the Rinaldi court favorably cited United States v. Cowan, a 1975 case from the Fifth Circuit found at 524 F.2d 504, at page 513. And Cowan, while it overruled a district court decision to deny a motion to dismiss, nevertheless stated, quote, “It seems to us that the history of the Rule belies the notion that its only scope and purpose is the protection of the defendant.” So with all due respect, Mr. Shea, it seems to this Court that the Supreme Court has spoken, and I have a role here.
MR. SHEA: We believe that role is very limited.
THE COURT: Well, the Rinaldi decision states what my role is: quote, “The salient issue, however, is not whether the decision to maintain the federal prosecution was made in bad faith, but rather whether the Government’s later efforts to terminate the prosecution were similarly tainted with impropriety.” So that is my function here today: to decide whether the current motion to terminate this defendant’s case is, quote, “tainted with impropriety.”
I wish I could say that the answer to that question is obvious, Mr. Shea. I wish I could say: “well of course I see no evidence here of bad faith or impropriety on the part of the Department of Justice.” But I have to say, Mr. Shea, I’m not in the position where I can say that. I’m not saying at this juncture that I have found impropriety, but I can’t make a finding at this point that there is no impropriety. And in that regard, I cannot blind myself to the fact that this prosecution was initiated by a Special Counsel who was appointed due to the desire to insulate the case from any hint of political interference by members of the Department of Justice who had a connection to the President’s campaign, because this defendant was not only the National Security Advisor but had been a member of the President’s campaign. Clearly, if part of my role as an Article III judge is to examine whether there is “impropriety” in the motion to dismiss this prosecution, I cannot blind myself to the fact that the member of the Special Counsel’s office who handled this prosecution has now filed a motion to withdraw from the case. That, and the relationship of this defendant to the President, raises questions in my mind about the potential, and I’m only talking about potential now, but the potential for “impropriety” — and that is the word that the United States Supreme Court used, “impropriety.” It’s my role, as I see it, to determine whether this dismissal results from some impropriety. That’s why we’re here, and that is my role, and I want you to know that I take that duty very seriously, as I take all my duties seriously.
And in that regard I have some questions for you, because I have to say, this motion you have filed is one of the most unusual motions I have encountered in 36 years on the bench, 26 of which have been as a federal district court judge. In all that time, I do not believe I have ever seen the Government move to terminate a prosecution as to the defendant has already entered a sworn guilty plea, admitting under oath that he committed the crimes with which he is charged, in which the Government is not saying either, number one, that the defendant’s constitutional rights were infringed, or number two, that some new evidence has emerged to show that the defendant is not guilty. Not only have I never handled such a motion, I have never heard of such a motion being filed in any other court. Have you ever heard of such a motion, Mr. Shea?
MR. SHEA: Well, with all due respect, Your Honor, I’m not sure I agree with the Court’s characterization of this case. It’s the Government’s position that new evidence has indeed emerged that undercuts the case against Mr. Flynn, such that the Government believes there is no longer a federal interest in maintaining the prosecution.
THE COURT: Well, let’s take these questions step by step. Do you contend that the defendant’s constitutional rights have been violated in this case?
MR. SHEA: The Government contends that there were all sorts of unusual circumstances and irregularities inherent in the interview of Mr. Flynn, yes.
THE COURT: Well, that wasn’t the question I asked, but let’s talk about that. Because you dwell at some length in your brief on the supposedly irregular circumstances of this interview. I’m having a hard time understanding how any of that shows any justification for granting the Government’s motion. For example, you note at page 16 of your brief that the FBI failed to give the defendant what you call, quote, “the common section 1001 admonitions about lying.” I have several questions about that. First of all, and again, Mr. Shea, I know you haven’t been on this case as long as this Court or, for that matter, as long as almost anyone else in this courtroom, but are you aware that I specifically asked the defendant about this at a court hearing held in December 2018? That’s a question, Mr. Shea. It’s not rhetorical. Are you aware of that?
MR. SHEA: I believe I saw that in the record, yes.
THE COURT: Let me read you that exchange, because I think it’s important.
THE COURT: At the time of your January 24th, 2017 interview with the FBI, were you not aware that lying to FBI investigators was a federal crime?
THE DEFENDANT: I was not — I was aware.
THE COURT: You were aware?
THE DEFENDANT: Yeah.
THE COURT: That’s the bottom of page 8. Also, Mr. Shea, I want to be clear about this. Is it now the position of the United States Department of Justice that the failure to advise the defendant of the potential penal consequences of dishonesty — consequences that, as I just read, he knew already — is fatal to a section 1001 prosecution?
MR. SHEA: We would make that determination on a case by case basis, taking all of the facts into consideration.
THE COURT: Can you cite me a single example of when the failure to give such a warning has ever before been the basis of a motion to dismiss a section 1001 prosecution? I’m talking about a motion from the Government. Of course the defense brings such motions all the time, and the Government opposes them, and they are denied. But can you cite an instance of this being the basis of a Government motion to dismiss?
MR. SHEA: Not as I stand here, no.
THE COURT: It would shock me if you could after days of research. You also complain that the agents did not simply show the defendant the transcript of the conversation with the Russian ambassador. Is the Department of Justice contending that a failure to show a defendant the incriminating evidence against him before asking him questions is a basis to terminate a section 1001 prosecution?
MR. SHEA: Well, it’s our contention that the conversation was not itself incriminating. And again, what the Government does in different cases based on different factors is a matter of executive branch authority. The Court might disagree with the decision we’ve made here, but with respect, under our system of separation of powers it is not this Court’s role to second-guess our judgments simply because it might disagree with them, or even because the Court thinks that they might be applied differently in different cases.
THE COURT: Well, that is a question in the Court’s mind, Mr. Shea, because if this defendant is being treated differently because of his relationship with the President of the United States, that would be an impropriety that may well justify my denying the Government’s motion. Again, I’m not saying I’m there yet, but this is why I am asking the questions. While I have great respect for the separation of powers, the Government needs to understand that in our system of separation of powers, the judiciary has a role to play here too. It’s not up to me to decide whether to file a case. That’s the Government’s decision, and I’ll point out as an aside that most of the things you’re bringing up today are matters as to which, as I understand it, the Government was fully aware of at the time the Government filed this case. But again, I have a role to play because the defendant entered a guilty plea. I don’t recall if you have appeared in front of me before, Mr. Shea, but you should know that I take the entry of a guilty plea very, very seriously, as indeed I take all my duties, but the taking of a plea of guilty is something that this Court treats with the utmost seriousness. So I am going to proceed with my questions, sir, and I would appreciate answers rather than a lecture on the Government’s opinion that it’s none of my business. As I have told you, the Supreme Court doesn’t see it that way.
MR: SHEA: Yes, Your Honor.
THE COURT: You said that new evidence tends to show that the lies the defendant told were not material. But the government previously certified that they were material. What has changed, Mr. Shea, other than the identity of the lawyer representing the United States in this courtroom?
MR. SHEA: We acknowledge that in footnote 7 on page 18, but we point out that the new disclosures, which as the Court knows were made as the result of the Attorney General ordering an independent review of the case, have crystallized the Government’s view as to the lack of predication.
THE COURT: Well, the Attorney General is not the only one who might be doing an independent review. I’ll address that later. But what, specifically, about these disclosures changes the calculus on whether there was an adequate predication for a counterintelligence investigation? It seems to me all of the arguments you make on that point are based on facts that we have all known since the beginning. Your footnote talks about new disclosures but you don’t explain how those new disclosures go to the predication for the investigation.
MR. SHEA: We believe the brief does that throughout, Your Honor.
THE COURT: Can you point me to one single example of a new disclosure that changes the calculus on predication?
MR. SHEA: We do so throughout the brief, but I would point to the texts from Mr. Strzok fairly exulting in the quote “serendipitous” and “amazing” fact that the investigation had not been closed, which obviated any need to establish a new predicate for the investigation. As this Court knows, the conduct of Mr. Strzok has been highly questionable —
THE COURT: I’m not particularly interested in that, Mr. Shea. We are not on Fox News. This is a court of law. Are you telling me that the FBI cannot simply reopen an investigation if new facts come to light? Facts like a captured phone call with a Russian ambassador, and a passel of lies told about that phone call?
That one was rhetorical, Mr. Shea. [Laughter.] Let me cut right to the chase here, because the central contention of your motion is something I found frankly astonishing. You say that because the Government had the transcripts of the calls, there was no need to ask the defendant about them, even if the FBI had information that he was lying about the content of those calls to numerous incoming high government officials. You say, quote, “With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation.” When I read that, I thought: “Even though he had lied to all of these officials?” And then I read this statement: quote, “Whether or not Mr. Flynn had been entirely candid with the future Vice President or Press Secretary did not create a predicate for believing he had committed a crime or was beholden to a foreign power,” unquote.
I have to say, Mr. Shea, I find this position absolutely impossible to understand. You are telling this Court that a high-level official who was already suspected of having untoward ties to the Russian government — who had, and I did not see this in your motion, received money from a state-run Russia media entity and had dinner with the President of Russia — is caught on a wiretapped conversation asking the Russian ambassador to take a position regarding sanctions imposed by the current President of the United States as retaliation for alleged interference in election activity. He lies about this to all these officials, and you’re saying the FBI can’t even ask him about that?
And before you answer, understand that in this Court’s view we are not talking about the defendant not being, quote, “entirely candid.” He lied, Mr. Shea. I’ll remind you what I said on December 18, 2018. Addressing the defendant, I said, quote, “Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people,” unquote. That is what I said then and it is true today. This is not a matter of being less than perfectly candid. The defendant lied. As I said then, quote, “This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, up to that point, had an unblemished career of service to his country. That’s a very serious offense.”
And I don’t see how you can say the FBI had no business asking him: gee, Mr. Flynn, did you have this conversation or not? And why?
MR. SHEA: I believe we addressed this in our brief.
THE COURT: Wholly inadequately. I am going to take a recess and consider my ruling. In determining whether there was an impropriety here, I may need to talk to Mr. Van Grack. I may need to speak to people in your chain of command. I may need to speak to Mr. Barr. One thing I am considering, and I’ll just put this on the table now, is appointing a Special Master or some individual with the authority to conduct a factual investigation on the court’s behalf. That may involve an order that the Government not destroy any internal documentation of its deliberations on this subject. I understand the Government may object to any inquiry into its deliberative process, and I am mindful of the sensitivity of such questions, but if the Supreme Court of the United States mandates that I examine whether this motion was made for some reason not having to do with the interests of the United States in the fair administration of justice, I may have no other choice.
We’ll be in recess until 1:30.
UPDATE: This piece in the New York Times by Mary McCord, an acting assistant attorney general at the time of the events in question and someone whose views are cited (misleadingly) in Shea’s memo, is excellent and totally consistent with everything I say in the post above.