A piece at Lawfare written by a pair of Harvard Law students asks: The Justice Department Wants to Drop Flynn’s Case. Can the Judge Say No? The piece is well-written and is fine as far as it goes, but I think it overlooks a key case that will be central to Judge Sullivan’s analysis. In essence, the students (Charlotte Butash and Hilary Hurd) read the cases in the Government’s brief, but they don’t demonstrate that they read the cases cited in the cases in the Government’s brief — and as I result I think they missed something important.
(This will be review for those of you who read every word of my lengthy imagination of one way the next Flynn case court hearing could go. If you have not read that post, enjoy.)
Butash and Hurd properly note that the issue of Judge Sullivan’s discretion starts with Federal Rule of Criminal Procedure 48(a), which requires leave of court for a dismissal motion such as the Government has brought in the Flynn prosecution. As Butash and Hurd note, the key case on the subject, Rinaldi v. United States (1977) 434 U.S. 22, says that (the words of Butash and Hurd):
[T]he “salient issue” under Rule 48(a) was not whether the original decision to bring charges was made in bad faith but, rather, whether the government’s motion to dismiss the prosecution was “similarly tainted with impropriety.”
Quite so. And Butash and Hurd go on to say:
The Supreme Court’s decision does not explicitly limit the appropriateness of an inquiry into whether the motion is tainted with impropriety only to situations in which a defendant faces multiple repeat prosecutions; it does, however, note that the “principal object” of the “leave of court” requirement is to protect a defendant against prosecutorial harassment.
Here is where I have a problem with their analysis. To say the case does not “explicitly” say something is to imply that maybe it “implicitly” says that. But what Butash and Hurd miss, and I pointed out in my imagined Flynn hearing post, is that (as my imaginary Judge Sullivan lectures my imaginary USA Shea):
[T]he 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 while Rinaldi did not “explicitly” say the only purpose of the rule is to protect a defendant, it favorably cited a case that explicitly said otherwise. Moreover, lest you think I’m reading too much into that citation, Rinaldi also added this specific observation, also ignored by Butash and Hurd:
[T]he 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.
That sentence appears in the very same footnote that says the “principal object” of the leave of court requirement is to protect defendants.
What the Supreme Court is saying is: there are other objects besides the principal object. And one of those is an analysis of whether the motion was prompted by “considerations clearly contrary to the public interest.” And the favorable citation of Cowan certainly implies that those considerations are most certainly not limited to considerations that protect the defendant, but also to instances of “impropriety” that aid the defendant.
Butash and Hurd go on to cite the Fokker case cited in the Government’s brief, and say “the D.C. Circuit reemphasized that a district court reviews a Rule 48(a) motion ‘primarily’ to protect a defendant from dismissals that are part of a scheme of prosecutorial harassment to repeatedly bring and then dismiss charges.” This has some significance, but not as much as the piece attributes to it.
On one hand, it’s true that Fokker reemhpasizes the consensus that the trial court’s role is circumscribed. Let’s be clear: the courts will not uphold a refusal to dismiss the case because the judge has a strong feeling that the Government has weighed the benefit to the public interest inaccurately. If Judge Sullivan’s problem with the Government’s position is that Judge Sullivan would have thrown the book at Flynn if he were the prosecutor, that’s not enough to reject the motion. There has to be an “impropriety.”
But on the other hand, the D.C. Circuit is the D.C. Circuit and the Supreme Court is the Supreme Court. And the D.C. Circuit can emphasize the “primary” policy of the Rule 48 leave provision all it likes. The Supreme Court of the United States has still said that is not the only policy consideration. A dismissal contrary to the public interest that is tainted with impropriety can still be rejected.
And here, we have a case where the President of the United States personally asked the FBI director to let this defendant go — a defendant who supported the President during his campaign. For the very reason that the prosecution was related to a probe that involved presidential politics, a Special Counsel handled the investigation to avoid political pressure from improperly influencing the case. Now the career lawyer working for that Special Counsel has withdrawn and a slipshod and unconvincing brief has been filed by a political appointee and signed by no career prosecutor. The smoke of politics is heavy.
Butash and Hurd claim: “To deny the government’s current motion, in other words, Sullivan would have to distinguish this case from broad and controlling precedent.” I disagree. Based on the authority cited above. Judge Sullivan need only apply controlling precedent to ask some pointed questions (and perhaps conduct some investigation of his own) to determine whether the smoke of politics is emanating from a dumpster fire of impropriety.
P.S. The types of questions he might ask have been well covered in pieces I recommend here and here.