Lawfare’s Analysis of Judge Sullivan’s Discretionary Authority Overlooks an Important Case
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.
I should note that I am having to do this research on the Web and without the benefit of Westlaw, so it’s not really the same quality you’d get if I had access to such a service for this purpose. If I were analyzing this issue for work I’d spend a lot more time and get a lot more thorough.
Patterico (115b1f) — 5/12/2020 @ 8:49 amThe Cowan opinion is very interesting. I recognized a lot of the people involved. This quote spoke to me:
DRJ (15874d) — 5/12/2020 @ 9:11 amYou are doing an excellent job on this.
DRJ (15874d) — 5/12/2020 @ 9:12 am“considerations clearly contrary to the public interest.”
Hmmm … isn’t it a political decision what is in “the public interest”?
I see no way of defining that using basic Constitutional principles, and I doubt there are statutory guidelines either (barring criminal activity like bribing the prosecutor). So, what is being asked here is that the judge make a political decision about what is “in the public interest”, to the point of declaring that the actions of the Department of Justice are destructive of that end.
This seems a departure from this blog’s traditional attitudes towards limited judicial power.
Kevin M (ab1c11) — 5/12/2020 @ 9:16 amThe smoke of politics is heavy.
The smoke of politics has been heavy since the beginning, which is a few steps before we get to Flynn. While the impropriety of the dismissal might bear on this, any evaluation of what is in the public interest MUST also include any impropriety in the original investigation or the indictment itself.
Kevin M (ab1c11) — 5/12/2020 @ 9:23 amIt would seem that the public interest might include “getting all this behind us.”
Kevin M (ab1c11) — 5/12/2020 @ 9:26 amIt would seem that the public interest might include “getting all this behind us.”
Depends on what “this” encompasses…
Colonel Haiku (2601c0) — 5/12/2020 @ 9:30 amFor 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.
Nonsense.
The act of appointing a SC was itself driven by political pressure, by a rogue political appointee, according to no less an authority than Mr. Integrity himself:
The memo, written contemporaneously, documented Comey’s Oval Office meeting with President Trump during which the president allegedly asked him to drop the investigation into former national security adviser Michael Flynn.
“I asked a friend of mine to share the content of the memo with a reporter,” Comey told the Senate Intelligence Committee on Thursday. “I didn’t do it myself for a variety of reasons but I asked him to because I thought that might prompt the appointment of a special counsel.”
https://thehill.com/policy/national-security/336932-comey-leaked-memo-to-prompt-special-counsel
beer ‘n pretzels (73045a) — 5/12/2020 @ 9:43 amIs not a decision that upholds that rule of law–and therefore not political–also in the public interest?
Paul Montagu (b3f51b) — 5/12/2020 @ 9:44 amIsn’t it also true, beyond what any rule may allow, that if a judge believes any party’s motion would perpetrate a fraud on the court the judge has the right to deny it? A judge may not normally have much latitude to second-guess the exercise of prosecutorial discretion, but if a judge believes he/she isn’t being told the truth all bets are off. All judges have the inherent power to control the proceedings before them, and all counsel have a duty of candor to the court. These powers and duties are fundamental. The judge doesn’t get to deny the government’s motion merely because he would not have brought it if he were the prosecutor, but he can deny it if he believes the motion is based on deception, i.e., the charge that is more or less explicitly being made that the reasons given for the motion to dismiss are pretextual and the motion is really the result of political corruption.
All that said, the Flynn case seems so tainted by politics from its inception that unless the judge determines the government’s motion is based on fraud or untruths I hope he grants it.
RL formerly in Glendale (40f5aa) — 5/12/2020 @ 9:50 amI’ve been reading Cowan (linked above at justia), and particularly the section on when a Court should act in he public interest. Cowan itself cites United States v Nixon (1974) (the Watergate tapes case) as being of particular note, and it says:
So, there needs to be a CLEAR and OVERWHELMING reason for a court to intervene when the President claims Executive Privilege, and the Watergate tapes were such an exceptional and clear case.
A few paragraphs later, Cowan concludes it’s “public interest” examination with:
Clearly contrary. Not “might be contrary.” Not “some feel it is contrary.”
Manifest public interest. This would be something that most members of the agree on and feel that their interests would be substantially harmed were the Court not to act.
It is rather a stretch to suggest that strongly divided public opinion lends itself to either of these tests. That some (even many) prosecutors and other court officers may feel strongly about the judicial advisability of allowing the prosecution to be dropped does not change that. That some politicians feel strongly about it should not even enter into it as it is JUST this sort of political pressure that the opponents of the dismissal cite.
Cowan does not seem to apply.
Kevin M (ab1c11) — 5/12/2020 @ 10:01 am* This would be something that most members of PUBLIC the agree on …
And yes, I know the difference between its and it’s, but my fingers don’t.
Kevin M (ab1c11) — 5/12/2020 @ 10:05 amI would be interested in a related matter that touches upon this: when may a court override sentencing in a plea deal? How often does that happen? What are the defendants options then, if any?
Kevin M (ab1c11) — 5/12/2020 @ 10:16 amInteresting read, harkin, thx.
Colonel Haiku (2601c0) — 5/12/2020 @ 10:51 amSo here is my question, and I am not a lawyer.
Let’s say Judge Sullivan denies the DOJ’s motion, sentences Flynn.
Two minutes later, Flynn appeals, on whatever basis is necessary. Flimsy or not, all they have to do is list one legal basis for appeal.
The DOJ says, “We totally agree with Flynn’s appeal, we think he should be let go, please let him go. Appeals Judge, we say no contest to Flynn’s legal basis for appeal, please set him free.”
Does that work? And if so, what point would there be to Judge Sullivan denying the DOJ’s dropping of the case? If it’ll just to go appeal and get overturned there with the DOJ and Flynn working together?
Ingot9455 (cfa567) — 5/12/2020 @ 10:58 amKevin M, I have been told in the past that a plea deal is a legal contract.
If the judge tries to break the plea deal by applying more time that was not in the deal, then the contract is broken and the plea deal is off and the guy didn’t actually plead and we go back to where we were before the plea deal.
I’m sure it’s more complicated than that and there’s more steps to it.
And there are times when it doesn’t work out that way, case in point Roman Polanski, who thought he had a plea deal but didn’t.
Ingot9455 (cfa567) — 5/12/2020 @ 11:09 amNot in the federal system. The judge is not bound by any plea agreement and not by the government’s recommendation either. The judge told Flynn that at the plea hearing.
nk (1d9030) — 5/12/2020 @ 11:43 amDoes that work?
It worked for the State of California in the Prop 8 case. When the Prop 8 backers tried to intercede, the Supremes said they didn’t have standing. Nothing was said about the appeals court itself appointing counsel.
You would think that defending a Proposition that was passed by a sizable majority of a state’s voters would qualify as “manifest public interest.” But apparently not.
Kevin M (ab1c11) — 5/12/2020 @ 11:43 amIt was always odd that the Prop 8 backers had standing to defend (and lose) in district court, but not to appeal that verdict.
Kevin M (ab1c11) — 5/12/2020 @ 11:44 amThere has been a case or two saying that appointment of a special prosecutor can only be done by the Justice Department. Not by the courts and not by Congress.
I agree with DRJ that the judge is going to vacate the guilty plea for want of prosecution and dismiss the indictment without prejudice, there being no basis for a dismissal with prejudice. Attorney General Elizabeth Warren will have a year or so left in the statute of limitations to refile.
nk (1d9030) — 5/12/2020 @ 11:50 amAnd reading again that line from Cowan
I’m struck by how this case originated BECAUSE the Chief Executive’s judgment in the matter was simply expressed to his subordinate, let alone not being absolute or presumptively the best judge.
Kevin M (ab1c11) — 5/12/2020 @ 11:53 amthe judge is going to vacate the guilty plea for want of prosecution and dismiss the indictment without prejudice, there being no basis for a dismissal with prejudice.
And do so using a provision aimed at preventing repeated filing and dismissals. Irony is not dead.
Kevin M (ab1c11) — 5/12/2020 @ 11:55 amharkin,
I banned the author of the piece you linked for, among other things, consistently misleading my readers. Now his inaccurate arguments are being repeated in my comments section by you. Clearly, you did not bother to investigate whether the assertions therein are accurate, because as I will demonstrate in a moment, there are some howlers in there. You really should have done that before linking a piece written by someone banned from this site for repeated inaccuracies, because you were already on notice that such a person is not a reliable source of information. And in fact, the piece you linked has false information. And now I am holding *you* responsible for spreading those inaccuracies.
So, for example, using your comment as an example, you assert (by quoting a banned commenter favorably) that DOJ never said its determination on materiality was connected to anything in McCord’s statement. This is clearly false, as a simple review of the Government’s actual motion quickly reveals. The Government cites Exhibit 3 in several places at pages 14-17 of its brief, absolutely in support of the argument that the statements were not material. They don’t always do it by naming McCord; you have to actually pay attention to which exhibit is her statement, and then look at where that exhibit is cited and for what purpose. (Hint: it’s Exhibit 3.) IOW, it requires a thorough approach that the piece you linked lacks. When you apply that thorough approach, as I have, you see that the quote you gave in your comment is badly wrong.
Another false point made in the piece you linked: “DOJ did not claim anywhere in its motion that the interview of Gen. Flynn was … ‘unjustified’.” The Government’s brief specifically says the opposite, at pages 14-15:
I banned swc in large part because he littered my comments section with just these sorts of easily refuted falsehoods, and did so in an aggressive manner. It was not worth it to spend a significant portion of the time I have to devote to this blog to refuting confidently stated but totally inaccurate propositions such as litter the piece that you have linked. It is still not worth it.
So when you link a piece by a banned commenter, you run a high risk of repeating erroneous information, as you have done today. And I don’t appreciate having to spend considerable time refuting false arguments in my own comments section. Today, I am having to do so because of you, because you chose to link and quote from a piece penned by someone you knew was no longer welcome at this site, and you did not independently research whether that piece was accurate.
Now: I have linked the Government’s brief. I really suggest you actually read the primary source documents more, and partisan pundits less. That is, if getting to the truth is actually your primary goal. Only you can say if it is.
If you’re going to link a piece by a banned commenter in the future, do a better job of assuring yourself that it is not misleading. Because I do not like having my readers be misled.
Patterico (115b1f) — 5/12/2020 @ 12:16 pmwhembly,
I urge the same caution about linking a banned commenter’s posts on you that I urged on harkin. Once again, swc is banned because I do not want him here and I do not want to spend time refuting misleading things he says. He has a whole screed in the post you linked about how the FBI investigation was already closed. That would be news to the Government, which wrote in its brief at page 4 that the FBI learned of the calls with Kislyak “[b]efore the intended case closing took effect” and at page 5 that Strzok learned that the counterintelligence investigation “had not been timely executed, and the counterintelligence investigation into Mr. Flynn was, unexpectedly, still formally open.” I get that swc has some kind of cockamamie argument that it was really closed, but he really ought to tell people that is not the Government’s position (if he knows it, because he shows scant evidence of having actually reviewed the Government’s brief closely).
In short, I do not appreciate people repeating arguments from banned commenters that are factually incorrect and/or misleading and that the current commenter has not researched. If I wanted this to be a forum for swc’s inaccuracies, I would not have banned him.
Patterico (115b1f) — 5/12/2020 @ 12:17 pm@26 Pat… very well. Understood.
whembly (c30c83) — 5/12/2020 @ 12:48 pmHe’s afraid. He’s very afraid.
PTw (85dd8d) — 5/12/2020 @ 12:51 pmBREAKING
DOJ refuses to release names of those who unmasked Flynn.
(I hope that’s news…)
Ragspierre (d9bec9) — 5/12/2020 @ 1:08 pm@29 I presume that may because there’s is an active investigation pertaining to this?
whembly (c30c83) — 5/12/2020 @ 1:13 pmhttps://www.nationalreview.com/news/doj-does-wont-release-list-of-obama-officials-who-unmasked-flynn/
All I know…
Ragspierre (d9bec9) — 5/12/2020 @ 1:25 pmBreaking news John brennan used private contractors to unmask u.s. citizens working for trump campaign to get around requirements that agencies have to report who they unmask and why. Obama administration could say trump was paranoid for saying government was spying on him when he had no evidence of government unmasking because it was being done by private contractors to get around the law!
asset (011062) — 5/12/2020 @ 1:36 pmasset, was that breaking news or breaking wind…???
Ragspierre (d9bec9) — 5/12/2020 @ 1:44 pmActing Director of National Intelligence Richard Grenell has declassified a list of Obama administration officials who were behind the “unmasking” of former Trump national security adviser Michael Flynn.
Multiple reports have cited U.S. officials who say Grenell has handed over the list to attorney general Bill Barr, who could release it “at any time.” Last week, the Justice Department dropped its case Flynn — who pled guilty in 2017 to lying to the FBI — citing “newly discovered and disclosed information,”
https://www.nationalreview.com/news/grenell-declassifies-names-of-obama-officials-behind-michael-flynn-unmasking-asks-barr-to-release-them/amp/?__twitter_impression=true
_
harkin (8f4a6f) — 5/12/2020 @ 2:02 pmPatt – I will no longer quote SWC here, I did not know that was verboten.
I still recommend people to read his stuff and decide for themselves, when others were dumping on Nunes he stood tall.
harkin (8f4a6f) — 5/12/2020 @ 2:13 pm_
Did they take even one idea, or show any awareness of anything in the cases cited?
If not, I think you could say:
Just a indication that to get a full knowledge of a matter, or the amount of knowledge that a really informed person would know, it’s necessary to read around the subject.
Reading cited cases is one way to get more. But it still might miss things.
You say yourself that if you had had the benefit of Westlaw, (is that what you would use to find other cases that cite the cases cited? is that different from sheparding? – does that still exst on paper?) you could have done better.
Anyway you most likely would need to visit a library. But secondary sources found via Google might contain few things. If you wanted to work more on this.
While the students maybe did badly, and would only get a B on that paper if it was (assiduously) graded (on its true merits) it might be unfair to criticize them for that. (which you don’t, but someone could draw that inference maybe) Why should they be expected to have looked at them? They’re students, after all!
And don’t realize that knowledge of a matter isn’t always given to you on a silver platter. Their whole education might have given them the contrary impression. Maybe that should have been noted somewhere.
Anyway, I think you point out a flaw people can make in researching something.
Sammy Finkelman (375edc) — 5/12/2020 @ 2:16 pmI still recommend people to read his stuff and decide for themselves, when others were dumping on Nunes he stood tall.
I remember reading a lot of that here.
Colonel Haiku (2601c0) — 5/12/2020 @ 2:25 pm30… I would think that is the case… Durham’s on it.
Colonel Haiku (2601c0) — 5/12/2020 @ 2:28 pmWho is testifying before the House Permanent Select Committee on Intelligence in Exhibit 5, which gives the FBI’s version of what the predicate for the interview was and why they didn;t jst tell or interview Pence?
It seems like the name of the witness has been redacted.
The testimony was given in closed session on March 2, 2017
On Jan 26, and 27, people from DOJ went over to the white House and told them of the contradiction and offered to make the transcript available, and White House lawyer John Eisenberg later on went over to the FBI and looked at the transcripts, and on Feb 10 (the witness doesn’t mention but that was right after the fact of the contradiction had been leaked)
Sammy Finkelman (375edc) — 5/12/2020 @ 3:06 pmFlynn’s lawyer just filed a motion consenting to DOJ’s motion to dismiss.
Here’s where it gets interesting…
Is this where the lawfare crew or others can file arguments for/against the DOJ’s motion to dismiss?
whembly (c30c83) — 5/12/2020 @ 3:14 pmAsset, please provide a link to the source of your claim.
Colonel Klink (Ret) (305827) — 5/12/2020 @ 3:50 pmAlways trust content from patterico.com:
Breaking: Judge Hesitates to Accept Justice Dept. Move to Drop Flynn Charge
I guess “legal experts” is NYT shorthand for “Patterico”…
😉
Dave (1bb933) — 5/12/2020 @ 6:49 pmI’d just want all of them out of my courtroom, but maybe this judge doesn’t have any hobbies.
nk (1d9030) — 5/12/2020 @ 7:23 pmI guess “legal experts” is NYT shorthand for “Patterico”…
If you read the Cowan decision that Patterico bases this post on, it requires the request to be clearly contrary to a manifestly evident public interest. That seems a stretch no mater how much to dislike Trump and his minions.
Kevin M (ab1c11) — 5/12/2020 @ 10:24 pmCowan also talks about whether the motion to dismiss was brought in good faith or whether it was based on a sham or deception, suggesting those criteria are relevant to determining what is in the public interest.
DRJ (15874d) — 5/12/2020 @ 10:36 pmWhat is the purpose of asking for 3rd party input, except for Judge Sullivan to be a drama queen? He’s dragged out his case FOREVER and its a good thing, since DoJ dropped the case. But I don’t think that was Sullivan’s objective.
Further, lets say he does what the Left wants and says “DoJ can’t drop the case” or “I’m going to sentence Flynn anyway”. I suppose Flynn would appeal, and DoJ would not fight the appeal. And Flynn would go free. So, what is the point of all this?
rcocean (846d30) — 5/13/2020 @ 1:10 amThe key point is Judges aren’t supposed to overrule Prosecutors on continuing a case unless there’s a vital obvious public interest. Where is that interest in this case? There is none. Flynn’s crime was a process crime, related to an investigation that went no where. In fact, his prosecution was simply a tool used to coerce him to help Mueller go after other people. I suppose you can congratulate the NYT and MSM for once again changing the focus of the story. Instead of the headline being “DoJ drops case. Flynn was unfairly prosecuted” its “Did DoJ drop Case due to Politics?” Biden must be pleased. Because that’s why CNN/CBS/NBC/NYT/etc. are doing this.
rcocean (846d30) — 5/13/2020 @ 1:16 amThe New York Times is Joe Biden’s Cockholster. To quote Stephen Colbert.
rcocean (846d30) — 5/13/2020 @ 1:17 amPerhaps he believes that corrupting the justice system to benefit disloyal presidential cronies is clearly contrary to the public interest?
Dave (1bb933) — 5/13/2020 @ 3:42 am49. The judge has heard no evidence Of such corruption. But since he is now asking for third party input from parties that lack the ability to see basic evidence., the rule of law no longer informs the judge’s actions
nkinnick (e3b7e7) — 5/13/2020 @ 5:14 amRcocean:
The Justice Department asked the judge to dismiss the charge against Flynn with prejudice. That means a future administration could not resuscitate the charges in January 2021.
Sullivan may be looking to dismiss the charges without prejudice. That gives the opportunity for Attorney General Elizabeth Warren (ht nk — thanks for the nightmares, bub) to reinstate the charges.
That’s the point of all this. The idea there is a new administration on the horizon who will look at this differently.
Appalled (1a17de) — 5/13/2020 @ 5:37 amGorsh, it seem like the judge is not moving with sufficient alacrity to suit some of the T-rump sucking cult. That is really, terribly, awfully too damn bad!
Ragspierre (d9bec9) — 5/13/2020 @ 5:40 amThe judge has heard no evidence Of such corruption.
Well, except for the great big, stinking pile of evidence the DOJ plopped in his courtroom. Unprecedented, I do believe, for this very senior and experienced judge. So, there’s that…
But since he is now asking for third party input from parties that lack the ability to see basic evidence., the rule of law no longer informs the judge’s actions
Yeah, because an amicus brief is really just a comic book without pictures. Jeebus… Where do they find these T-rump worshiping myrmidons?
Ragspierre (d9bec9) — 5/13/2020 @ 5:48 amOne law for Trump’s cronies, another law for ordinary Americans. The saving grace is that Trump’s lawyers, in and outside the DOJ, are so hopelessly incompetent. Worthless losers like their orange boss. If they don’t have friendly judges who are practically their co-counsel, they just spin their wheels. We have seen this time after time after time, from the Muslim ban to the census to this case. Losers!
nk (1d9030) — 5/13/2020 @ 5:52 am“Where is my Roy Cohn?”, he cried plaintively.
nk (1d9030) — 5/13/2020 @ 5:53 am“Where is my Roy Cohn?”, he cried plaintively.
And for a number of reasons…
Ragspierre (d9bec9) — 5/13/2020 @ 6:03 amWow, interesting. Thanks. So can the Defense attorney’s appeal Sullivan’s crazy behavior now or do they have to wait? From what I’ve read, Sullivan has OPPOSED prior attempts for 3rd Party briefs from the Defense, but is NOW requesting them. I’m not really clear why anyone needs 3rd party opinions in a CRIMINAL case. but then I’m not a lawyer.
rcocean (2e1c02) — 5/13/2020 @ 7:07 amTrump needs to give Flynn and everyone else a complete and total pardon, on his last day in office, so they cannot be proscecuted by Democrats in the DoJ AGAIN. Because, believe me, they will try. Unlike the Right the Left NEVER Forgives, and NEVER lets up. EVER.
rcocean (2e1c02) — 5/13/2020 @ 7:08 amThe Judge refused to allow amicus briefs when he was sentencing Flynn because sentencing is a common part of a federal criminal case, but it is highly unusual for the government to dismiss after a guilty plea. Allowing amicus briefs in novel, highly unusual matters ensures that there are opportunities to raise unforeseen or unexpected issues.
DRJ (15874d) — 5/13/2020 @ 7:13 amThe right/conservatives often file amicus briefs in high-profile cases. It isn’t just the left.
DRJ (15874d) — 5/13/2020 @ 7:15 amVoluntary dismissals are ordinarily without prejudice. It is not even clear that “with prejudice” is authorized by Rule 48(a) (and that’s an understatement). It is patently cronyism and collusion for Trump’s valets with law licenses to be asking for it themselves.
Dismissal for want of prosecution, Rule 48(b), can be with prejudice, but it is considered a very harsh remedy and a last resort when imposition of costs, attorneys fees, and fines are not an adequate remedy.
In Chicago (remember Jussie Smollett?),when a judge sees a prosecutor in the pocket of the defense, he can “fire”
himher and appoint a special prosecutor (which the judge has done in Jussie’s case). In the federal system, SCOTUS has ruled that that’s unconstitutional. Only the Justice Department can prosecute cases. That’s why it took Rosenstein to appoint Mueller, and not a three-judge panel like in the last century.So, tell me, what’s a judge supposed to do when the prosecution and the defense are hand in glove?
nk (1d9030) — 5/13/2020 @ 7:23 amNK, It depends which action can more easily be framed as “winning” for Trump?
Time123 (f5cf77) — 5/13/2020 @ 7:37 amI thought if there was an overriding public interest, the Judge could do something. Otherwise, he should act like a JUDGE and declare the whole thing over. How can a judicial system work if the Judges are substituting their opinions for the prosecutors, without any real basis?
Again, I don’t understand why 3rd party briefs are needed or what they are supposed to accomplish other than keeping Sullivan’s name in the papers. Doesn’t this guy have OTHER work to do?
rcocean (846d30) — 5/13/2020 @ 7:37 amThe federal trial judge appointed a special prosecutor in the Cowan case, but the appellate court noted it was not reviewing the legality of that appointment since it also held the trial court should not have refused to dismiss the case. Maybe some of the amicus briefs will address that. It is an interesting question apart from the politics.
DRJ (15874d) — 5/13/2020 @ 7:45 amwhat makes you think there isn’t any basis?
Time123 (f5cf77) — 5/13/2020 @ 7:49 amWhat makes you think people who agree with you politically won’t file briefs to support dismissal with prejudice?
They aren’t supposed to do that. The courts decide the cases before them. In this case, the government brought charges and now it wants to dismiss the charges, but the rules require the court reviews a dismissal to prevent side deals or unfair dealing.
DRJ (15874d) — 5/13/2020 @ 7:49 amnk (at 61):
So I would assume Justice wanting a 48(b) dismissal would be like a sailor before the mast asking for another 10 lashes.
Appalled (1a17de) — 5/13/2020 @ 8:01 amMorrison v. Olsen also left a lot of questions unanswered and this case might answer some of them. Executive branch or not, prosecutors are still lawyers and officers of the court; the case is captioned “United States vs. Flynn” not “The President vs. Flynn”; they owe a duty of independent judgment to their client The United States; and a duty to the administration of justice (which this last is obviously the courts’ concern).
nk (1d9030) — 5/13/2020 @ 8:05 amAppalled @67. Heh! Yes.
nk (1d9030) — 5/13/2020 @ 8:06 am66. The evidence of malicious prosecution is before the judge. Keeping this evidence based, what evidence contradicts? What would a third party that has no standing add to the evidence?
nkinnick (e3b7e7) — 5/13/2020 @ 8:08 amSomehow, with no evidence, the judge is refusing to accept the executives enumerated power to decide prosecutions.
But, remember, I went to a Jesuit law school, not an Ivy League law school and definitely not Harvard, so I could be totally wrong about everything.
nk (1d9030) — 5/13/2020 @ 8:08 am@60
Yup… especially in high-profile cases.
I don’t see any nefarious intention by Judge Sullivan here… no matter WHAT he does, this court *is* going to be inundated with amicus briefs. This trial is certainly at the apex of “high-profile cases”.
I can see the Judge doing this so that he can define an end-date in receiving the amicus brief and moving on to a resolution.
whembly (c30c83) — 5/13/2020 @ 8:44 amnk, there has always been one law for whoever is in power and a different law for everyone else. That is why the “rule of law”. Is a fiction promulgated by a corrupt legal profession to benefit whoever is in power.
DaveMac (4cc9b4) — 5/13/2020 @ 8:47 amAfter being financially liquidated, in legal limbo for three years, facing jail time, and pilloried in the press, I’ll bet Flynn wishes he had been treated like your normal every day Joe investigated for a Logan Act violation.
beer ‘n pretzels (8827d3) — 5/13/2020 @ 9:00 amWhen has third party input ever been solicited in a criminal case? Is there any previous precedent for this? Is the judge unable to rule based on criminal law with the evidence in hand?
DaveMac (4cc9b4) — 5/13/2020 @ 9:02 amThe evidence of malicious prosecution is before the judge. Keeping this evidence based, what evidence contradicts? What would a third party that has no standing add to the evidence?
Somehow, with no evidence, the judge is refusing to accept the executives enumerated power to decide prosecutions.
1)There is no evidence of malicious prosecution, only a lot of people claiming the evidence proves malicious prosecution. Don’t confuse the two. There is, on the other hand, evidence of guilt, including Flynn saying under oath he was guilty.
Kishnevi (7289ba) — 5/13/2020 @ 9:06 am2) Once the case is filed, that executive power you talk about becomes significantly limited. That’s why the DOJ has to move to dismiss. If that unlimited power you refer to actually existed, the DOJ could simply close the case without needing anyone’s cooperation.
What kind of precedent does it set to allow 3rd party “friend of the court” briefs in a criminal trial. If the judge uses input from someone like Adam Schiff, (Or some republican politician/lawyer) does this not increase the perception of undue political influence on the judicial system by all sides of the political spectrum?
DaveMac (4cc9b4) — 5/13/2020 @ 9:12 amSoo… doing a weee bit of reading:
https://casetext.com/case/united-states-v-fokker-servs-bv-4
Looks like Judge Sullivan is bound by DC Circuit law with respect to prosecution’s request to dismiss cases.
The key thing that jumped out is:
And here it’s explicit:
Pretty unambiguous… no?
I think the only thing he can do is to approve/deny the “with prejudice” part of the motion…right?
Unless united states v fokker is superseded by another case?
whembly (c30c83) — 5/13/2020 @ 9:17 amThe DOJ motion to dismiss is the result of undue political influence. Team Trump’s defense of Flynn is simply that the case was filed solely because of undue political influence. That boat left the wharf a long time ago as far as this case is concerned.
So letting third parties be heard would actually clear the air, and bring out any arguments not being made by Flynn and the DOJ. Which will allow Sullivan’s final decision, whatever it is, to be seen as more impartial and not politically influenced.
Kishnevi (7289ba) — 5/13/2020 @ 9:23 am“Pretty unambiguous… no?”
The trial is over, Flynn pled guilty, we’re in the sentencing phase now.
Davethulhu (244ed8) — 5/13/2020 @ 9:28 am@80 The trial is over when sentence is rendered and is adjourned.
The “but he pleaded guilty” argument has to be the dumbest and most disingenuous one in this whole ordeal. Any practicing lawyer knows that guilty pleas are strategic and that they’re informed by a host of considerations may have nothing to do with actual guilt.
whembly (c30c83) — 5/13/2020 @ 9:34 amDepends on what input he allows and who’s input is used in the decision. Since I don’t think there is any precedent for 3rd party input in a criminal case it just convinces whoever is on the losing side that there is undue political influence and the public’s faith in our justice system is further damaged.
DaveMac (4cc9b4) — 5/13/2020 @ 9:37 am“The “but he pleaded guilty” argument has to be the dumbest and most disingenuous one in this whole ordeal. Any practicing lawyer knows that guilty pleas are strategic and that they’re informed by a host of considerations may have nothing to do with actual guilt.”
If this were true, then Flynn wouldn’t have to withdraw his guilty plea.
Davethulhu (244ed8) — 5/13/2020 @ 9:42 amWhich maybe a good thing in the long run, the less the public trusts the judicial system, and the fiction of the “rule of law” maybe the likelihood of real reform will increase.
DaveMac (4cc9b4) — 5/13/2020 @ 9:42 amwhembly (c30c83) — 5/13/2020 @ 9:34 am
And why defendants often enter pleas of “no contest” instead of “guilty”.
Kishnevi (7289ba) — 5/13/2020 @ 9:45 amDaveMac, amicus briefs happen a lot, especially at the appellate level (in the Fokker case, the opinion is devoted to showing why the amicus briefs filed in that matter were wrong; the defendant and prosecution appealed the district court’s decision together). But since the cases they involve don’t make the news, you don’t hear about them.
Kishnevi (7289ba) — 5/13/2020 @ 9:50 amCowan also talks about whether the motion to dismiss was brought in good faith or whether it was based on a sham or deception
It may discuss it, but it says in the conclusion:
The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest. In this way, the essential function of each branch is synchronized to achieve a balance that serves both practical and constitutional values.
Not only must the judge overcome a presumption of good faith (more than a simple assertion or suspicion of bad faith), but THEN it must be “clearly contrary to manifest public interest.” Even proven bad faith is not enough if the issue at hand fails one or both of those tests.
Kevin M (ab1c11) — 5/13/2020 @ 9:53 am(“its” in the above quote refers to the Executive.)
Kevin M (ab1c11) — 5/13/2020 @ 9:54 am#83, if I were a defendant in this situation, it would be important for me to tell the judge that the original guilty plea was an error and explain why I made the mistake, never mind whether it was required by legal procedure or not.
DaveMac (4cc9b4) — 5/13/2020 @ 9:57 amPerhaps he believes that corrupting the justice system to benefit disloyal presidential cronies
You have a lot to prove there. Simple political animus is insufficient. I think a better case can be made regarding the FBI’s handling of the Clinton investigation, but I admit I’m not a fan.
Kevin M (ab1c11) — 5/13/2020 @ 9:59 amThe DOJ motion to dismiss is the result of undue political influence.
So, when did the Chief Executive lose the ability to act as The Executive?
Kevin M (ab1c11) — 5/13/2020 @ 10:01 amSo amicus briefs happen a lot in criminal trials at the actual trial level?
DaveMac (4cc9b4) — 5/13/2020 @ 10:02 amI think the only thing he can do is to approve/deny the “with prejudice” part of the motion…right?
Ironically by invoking a clause designed to prevent repeated indictments and dismissals.
Kevin M (ab1c11) — 5/13/2020 @ 10:03 amto benefit disloyal presidential cronies
And you smear Flynn here. He remained a loyal presidential crony.
Kevin M (ab1c11) — 5/13/2020 @ 10:05 amSomewhat off-topic: HOWARD Stern has said President Donald Trump “hates” his own supporters and it would be “extremely patriotic” for him to step down, in a radio outburst.
https://www.the-sun.com/news/820767/howard-stern-says-trump-hates-own-supporters/
Kevin M (ab1c11) — 5/13/2020 @ 10:09 amJudge Sullivan cites local civil rule 7(o) And acknowledges there is no corresponding rule on the criminal side but then justifies using it anyway.
DaveMac (4cc9b4) — 5/13/2020 @ 10:10 amSomehow, with no evidence, the judge is refusing to accept the executives enumerated power to decide prosecutions.
No. He isn’t. WTF did you pull that out of?
Ragspierre (d9bec9) — 5/13/2020 @ 10:26 amIronically by invoking a clause designed to prevent repeated indictments and dismissals.
You’ve said that before. It is not ironic. It’s a safeguard against corruption. To prevent collusion and prosecutorial pardons for guilty cronies. And it is not what the rule was designed for in the first place. It was designed primarily to enable “settlements” (plea bargains), secondarily to help the government allocate resources, and tertiarily to keep innocent people from having to go through a trial.
nk (1d9030) — 5/13/2020 @ 10:28 amYou may be right. Today, the Judge entered an Order denying the admission of the first motion (for leave to file amicus brief) because he plans to file a scheduling order setting out the rules for the amicus briefs. Given the large number filed during sentencing, he probably realized this would happen whether he wants it or not. Thus, it makes sense to anticipate it and provide for it in an orderly manner.
DRJ (15874d) — 5/13/2020 @ 10:29 amSince I don’t think there is any precedent for 3rd party input in a criminal case…
Since there’s nothing here but strictly legal issues the judge wants briefed, I’d like to know where you get the idea that this is “unprecedented”?
Anything evidentiary is well under the court’s perview at this point.
Ragspierre (d9bec9) — 5/13/2020 @ 10:31 amI think Supreme Court precedent trumps DC precedent, whembly, but Patterico’s point is there is 5th Circuit precedent that defines the controlling authority as including the public interest in Rule 48(a) dismissals. Judge Sullivan can adopt that if he thinks it applies on these facts because this is an unusual fact pattern.
Most 48(a) motions are usually viewed based on the impact they have on the defendants, who often object because it exposes them to more harassment and risk. This is very different and there is a public interest in making sure there is a valid public interest in dismissal. After all, as nk 68 pointed out so well, the petitioner is the US, not Trump. If the DOJ is looking put for Trump’s interests instead of the American public’s interests, the Judge has the power to consider that under Cowan. It is not his circuit but trial and appellate courts can/do borrow from other circuits when needed.
DRJ (15874d) — 5/13/2020 @ 10:40 amThere is rarely interest in filing amicus briefs in criminal matters, but the procedure should work the same in criminal and civil cases.
DRJ (15874d) — 5/13/2020 @ 10:43 amWhat evidence is their of “bad faith” in this case? None. Without evidence, lots of Leftists are claiming Barr did this for political reasons – but there isn’t any.
rcocean (846d30) — 5/13/2020 @ 10:46 amThe difference between this case and the usual cases is that in most cases, the prosecution and defendant are adversaries. The adversarial relationship typically means the court hears both sides. The exceptions are when one side has incompetent counsel or when both sides agree. In general, the only way they agree is if the prosecution decides the defendant is innocent and tells that to the court. That is not the case here. The court needs to make sure the parties agree because of the legal issues, not because of some unfair dealing or ulterior motive.
DRJ (15874d) — 5/13/2020 @ 10:49 amThe Rinaldi case was in 1977, how many times has a District Court refused to accept DoJ backing out of a Case?
I assume zero, otherwise we’d have heard of it.
rcocean (846d30) — 5/13/2020 @ 10:49 amExcept in this case, its all there in the DoJ brief. They’ve given their reasons for withdrawing their prosecution of Flynn. What evidence is there of an ulterior motive? None.
rcocean (846d30) — 5/13/2020 @ 10:51 amWell, the DOJ took this unusual action after Trump made repeated statements about the case. Trump values loyalty in his employees. Barr, the DOJ and everyone knows Trump wanted Flynn’s case stopped. That is circumstantial evidence and a motive to make this case go away, and Barr certainly has the opportunity as AG to make it happen.
DRJ (15874d) — 5/13/2020 @ 10:54 am#107. That still is not evidence of any wrongdoing on Barr’s part and even less on the part of the DoJ lawyer who actually wrote the brief and is now handling the case. obama and Biden and the MSM obviously want to Flynn to be prosecuted to embarrass Trump. Is that “evidence” that Sullivan issued this order based on their input?
rcocean (846d30) — 5/13/2020 @ 11:16 amIt’s not, because Sullivan doesn’t work for them. Bar works for Trump and the prosecutors work for Bar.
Time123 (653992) — 5/13/2020 @ 11:22 amThe actual public interest is served by not legally treating generals worse than drug dealers and murderers…
Right there is where your argument went in the crapper. It is, of course, a straw man argument, which is a form of lie very often.
Turley is becoming an idiot.
Ragspierre (d9bec9) — 5/14/2020 @ 7:15 am