What would it take for an appellate court to uphold a ruling by Judge Sullivan denying the Government’s motion to dismiss the Michael Flynn case? I think it would take a lot. This post imagines a scenario where it’s possible.
The post was prompted by an email I received from a friend of mine this morning reacting to my post imagining the hypothetical court hearing on the Government’s motion to dismiss. My friend laid out what a well-prepared and articulate Government lawyer might say in Timothy Shea’s place, and opined that it’s hard to see an appellate court upholding a denial of the Government’s motion. (As of this writing I don’t have my friend’s permission to quote it, which is a shame because it’s good, but I have asked for it and I will publish it if I get permission.)
I agree with my friend that it is very difficult to see an appellate court, and ultimately the Supreme Court, upholding denial. I’m aware of no case in which a Rule 48 motion was denied and the denial was upheld — at least, no case where the court was not protecting the interests of the defendant. In my previous post, I really did try to mentally put myself in Judge Sullivan’s position, and you’ll notice that in my hypothetical not only does the judge not actually deny the motion, he doesn’t even say (yet) that he finds impropriety! He just articulates the standards, rejects the Government’s reasoning, and leans towards an impropriety finding. I ended the post with the judge calling for recess, in part because the post was already long, but also because I couldn’t really envision what the heck the judge would actually do. So I laid out the law and arguments and punted.
But let’s take some extreme examples to illustrate how far a rule disfavoring denial might go. I think most people reading this post would agree that if Judge Sullivan uncovered solid evidence of Barr being bribed to take this action, that would be an impropriety that would justify denial. So the real question is, if Judge Sullivan uncovered solid evidence of Trump leaning on Barr, would that be more like a bribe or more like a legitimate and defensible decision?
Even then I think it could depend on the specific circumstances, because given the fact that DoJ is technically under the President’s authority, it’s hard to say that Trump merely expressing his opinion is equivalent to impropriety. Whether that amounted to impropriety might depend on the evident reason he is expressing his opinion. Is it for outwardly legitimate reasons or for patently improper reasons?
Say Judge Sullivan appoints a special master who issues a subpoena for DoJ emails under Judge Sullivan’s authority, and finds a witness who describes witnessing Trump ordering Barr to drop the case. Even then, it would matter what Trump said. If the witness had merely overheard Trump telling Barr he had been reviewing the new evidence and was worried that the materiality was lacking (lol at Trump reading legal documents or caring about something other than himself) that does not sound like impropriety. But what if, instead, Trump said: “Make this go away. If Flynn doesn’t walk, he could end up revealing that I ordered him to talk to Kislyak about sanctions, and the Democrats will never let that go. Also Flynn has the pee tape!” At a certain point we do get to impropriety under Rinaldi v. United States (1977) 434 U.S. 22, the Supreme Court case cited in my previous post.
I have a more intriguing and realistic possibility.
First, let me set up the possibility by asking you to imagine three totally hypothetical scenarios.
SCENARIO ONE: The Government files a motion saying “drop the case, judge, because we say so.” The Government gives no reasoning and refuses to answer the judge’s questions at the hearing. Does this seem like compliance with a rule mandating that the Government seek leave of court? What would be the purpose of the leave requirement if the judge were forced to rubber stamp a decision made with no attempt at justification? This suggests to me that there has to be a justification.
SCENARIO TWO: The Government lawyer brings a document into court and says: “We are moving to dismiss because of the contents of the document I am now holding in my hand.” And the judge says: “Well, let me see the document.” And the Government lawyer says: “No.” This seems very similar to the naked “because we say so” scenario described in SCENARIO ONE.
SCENARIO THREE: The Government lawyer brings a document into court and says: “This is a transcript that shows the defendant is innocent.” And the judge says: “Well, let me see the transcript.” And the Government lawyer says: “No.” This once again seems fairly similar to the previous two scenarios. The judge has a right to inquire into the evidence supporting the Government’s request, or why have a requirement that the Government seek leave? If the Government prevents the Court from looking into that evidence, the judge arguably has authority to deny the motion.
Do you see where I am going with this?
If you have read the Government’s latest filing, you realize that the Government has now put at issue the content of the transcripts of Flynn’s call with the Russian ambassador. Recall that Judge Sullivan had once ordered those transcripts to be disclosed, and relented only after the Government told him that they were not relying on those transcripts to make out their case, presumably because they already had a guilty plea in hand. Had they not made that representation, had he not reversed his order, and had they defied his order, he could have dismissed the case without anyone raising an eyebrow.
Now, the Government is claiming that the transcript of the call reveals that the FBI had no basis to continue the counterintelligence investigation, and therefore the content of the transcript is once again central to the Government’s position. But this time, it’s central to their decision to abandon the prosecution, whereas before the judge might have thought the transcripts central to the pursuit of the prosecution.
Judge Sullivan could very well decide to order the Government to turn over the transcript now, since the Government is relying so heavily on the content of those transcript in its motion. What if the Government refuses to turn over the transcript? Could that refusal form part of a reasoned conclusion that impropriety is behind the Government’s decisionmaking? At the very least, Judge Sullivan could use the refusal as a basis to make an adverse factual finding against the Government on the issue of the meaning of the call and thus on the materiality of Flynn’s lies. Judge Sullivan would have as one factor the presence of the patent political context of the circumstances of the dismissal (keeping in mind Trump asking Comey to let Flynn go, the appointment of the Special Counsel, and the withdrawal of the Government lawyer who prosecuted the case). He would have the total refusal of the Government to provide central evidence supporting what is already an irrational argument for the Government’s new position.
I think that could get him much of the way towards a decision to deny leave.
What do you think?
UPDATE: I have received permission to quote my friend’s email, anonymously:
I enjoyed your imagined court transcript. It was a good post, and I’m with you on about 80%, and I understand why you were frustrated at not getting any more substantive response in your comments. Toward which end:
Here is what a better-prepared version of Mr. Shea perhaps might have said in your transcript — starting with “We believe that role is very limited,” immediately followed by:
—-
MR. SHEA (continuing without pause): Rule 48 clearly does not envision that the Court should simply become a rubber-stamp; if this were a mere ministerial decision in which the Court had no discretion, there’d be no need for the Court to be involved, and the Rule would instead have directed the clerk to enter an appropriate judgment upon receipt of the prosecution’s motion under Rule 48. So yes, of course Rule 48 gives this Court discretion.
But how much, and over what? Solely for purposes of argument, to illustrate how the Court’s discretion ought, or ought not, to be exercised, let us assume for a moment that in the making of the decision to file this motion to dismiss, there was indeed some sort of impropriety arising from the relationship of this defendant to the President.
I emphasize that this is a hypothetical. It must be only a hypothetical, because I assure you that at my level within the prosecution, the scope of my responsibilities does NOT include my second-guessing the political appointees within the DoJ, much less their boss, over the extent to which politics have been considered. My job description, and my authority in it, in other words, doesn’t include making judgments about every possible type of “impropriety,” especially political improprieties, within the DoJ.
But let’s assume that you indeed had evidence to establish, circumstantially, that very conclusion — that there was some sort of “impropriety arising from the relationship of this defendant to the President.” I must respectfully submit to the Court that even then, YOUR job no more includes engaging in that sort of second-guessing than mine does.
We frankly don’t know what sort of “improprieties” might have been envisioned by the Supreme Court when it promulgated Federal Rule of Criminal Procedure 48. Other than the successive re-indictment hypothetical that’s not at issue here (since this is a “with prejudice” dismissal), it’s hard to even postulate other kinds of abuses within the decision-making process on a Rule 48 motion to dismiss.
But for this Court to make itself the referee for whether there’s been any, some, or too much “politics” involved with a prosecutorial decision is surely not what was intended. Because for this court to second-guess those decisions — to re-weigh the merits of a specific prosecution, after that process has been concluded by the prosecutors (but before entry of final judgment) — would mark a spectacular shift in the respective powers of the judicial, executive, and even the legislative branches. It would be a re-balancing of powers so great as to re-write the constitutional scheme of separation of powers. Such a ruling would be magnifying the powers of the judicial branch, at the expense of the executive branch, with no input from the legislative branch!
And again with genuine and fully due respect to this Court, no article three judge should be doing that. For that judge would be interpreting his implied writ — under the very limited discretion conferred upon him by Rule 48, however far it might go in other contexts — to micro-manage, using hindsight, the dismissal decisions of the executive branch by subjecting them to, in essence, a “political purity” test.
In other words, even if, with respect to this dismissal decision, there has hypothetically been a POLITICAL impropriety — as opposed to every other type of hypothetical impropriety (e.g., evidence the defendant bribed the prosecutor on the brink of sentencing) — this Court’s discretion ought not, and for separation of powers reasons, CANNOT extend so far as to make that the basis for its denial of this motion to dismiss.
Although my job, and (respectfully) I would submit yours too, do not permit either of us to police the top levels of the DoJ for alleged political improprieties of the sort I’ve been hypothesizing, nevertheless, in the proper arena — the political arena! — voters may ultimately, if appropriate, blame the political appointees upstream in the DoJ by holding accountable, in both electoral and public opinion polls, their boss at the very top of the pyramid of the executive branch. That is the political check for such improprieties that was built by the founders into the Constitution. The public’s discretion is almost unlimited and almost un-checked, but this Court’s is certainly not.
Therefore, I encourage this Court to resist the temptation to make itself the referee who decides — in the context of a post-plea motion to dismiss, at a minimum — how much politics in the Justice Department is “too much.” To do otherwise would be un-wise here, Your Honor, and, indeed, would amount to an unprecedented abuse of discretion, injecting this Court into internal DoJ politics and, yes, presidential campaign season politics, to a degree that was surely never anticipated when Rule 48 was promulgated.
In a subsequent email, my friend dropped out of Shea’s character and added the following, which he also permitted me to quote anonymously:
FWIW, the argument [above] was an exercise in advocacy. But I have a very hard time imagining the D.C. Circuit affirming the upholding of a guilty plea over the prosecution’s motion to dismiss with prejudice, so I therefore have a very hard time imagining even a ballsy and grumpy federal judge doing that.
I therefore predict that Sullivan will try to hold some feet to the fire, and he’ll grandstand quite a bit, but he’s ultimately not going to deny the motion to dismiss. I wouldn’t if I were him.
All that said, do I think this is Trump’s doing and fairly attributable to him, and the most conspicuous example yet of Barr providing zero effective check but instead actively facilitating a shameful act? Oh, yes.
(It’s true, but no defense for Barr, that Holder and Lynch also frequently acted shamefully, at the direction of Obama, on the basis of politics over public interest. I thought no one could do shameful things more shamelessly than Team Obama, but then came Team Trump and their Trump Alternative Universe.)
On the merits:
I think Flynn’s misstatements were indeed material; the risk that a jury would so conclude was palpable, a risk which objectively was more than enough to justify a plea bargain from the perspective of a reasonable defendant in Flynn’s circumstances; having pleaded guilty, Flynn is therefore guilty; his plea was fully informed, voluntary, and properly taken and documented; and it doesn’t matter that it’s a process crime (cf Libby, when you & I were among the few who defended Fitzgerald), or that the dropped charges were weak, or whether they squeezed his kid.
Don’t ask me who it is. I will not answer. But they are good points one and all.
