At the risk of seeming monomaniacal* about the Flynn case, I think it would be interesting to explore and discuss what would be the proper bounds of Judge Sullivan‘s discretion if the case were to go en banc, the absurd Court of Appeals panel decision were to be reversed, and Judge Sullivan were allowed to conduct a hearing on the Government’s motion to dismiss.
The Government’s central position throughout is to intone the phrase “separation of powers” over and over. The Government’s attorney stammered somewhat at the oral argument when it was pointed out to him that any potential violation of the separation of powers by merely allowing an inquiry into the Government’s reasoning was an injury, not to Flynn, but to the Government — which had not filed its own request for relief. Oops! But while that technicality alone would justify denying relief, let’s examine the separation of powers issues anyway. I propose to do so through presenting some (I hope) easy hypotheticals that illustrate the points I am making. I know I have proposed some more limited form of these hypotheticals in the past, but here I think it’s worth spinning out at some length.
Assume the Government comes to court and says it wishes to dismiss the case for the following reasons. Assume each given justification is the sole justification; we’re not adding these up but imagining several different situations in which the Government offers a single justification. (You’ll notice that many of these hypothetical justifications are unrealistically frank; just pretend you’re watching a scene from “Liar Liar” with Jim Carrey.)
- 1. We request to dismiss this case because the lead prosecutor was bribed. He is not representing the true position of the Department of Justice, which wants to continue the prosecution. But dismiss it anyway.
- 2. We request to dismiss this case because the Attorney General and the President were bribed and therefore this is the true position of the Department of Justice.
- 3. We request to dismiss this case because we think lilacs are very pretty flowers.
- 4. We request to dismiss this case because as it turns out Mike Flynn never actually talked to the FBI. In fact he’s never talked to anyone. Turns out he’s a deaf mute and thus lacks the ability to speak and to make any statement, true or false. So we have determined he could not make false statements.
- 5. We request to dismiss this case because Michael Flynn is white and President Trump has said we should dismiss all cases against white people except for Michael Cohen.
- 6. We request to dismiss this case because, even though the facts and law warrant the prosecution, the President wants to keep Michael Flynn happy so that Flynn does not incriminate President Trump.
- 7. We request to dismiss this case because, even though the facts and law warrant the prosecution, Michael Flynn is President Trump’s buddy and he wants to let his buddies go while having us prosecute his enemies.
- 8. We request to dismiss this case because we say so.
Me, I see all of these as insufficient to justify the granting of a Rule 48 motion to dismiss. To me, there has to be some reason offered, making #8 insufficient. The motion to dismiss can’t be motivated by rank corruption such as bribery (#1), even if it represents the true position of DoJ by reason of that bribery (#2). The reason must bear some relevance to the case (#3) and it can’t be a patently fabricated falsehood that is contradicted by every scrap of paper in the case and all evidence available to the five senses (#4). I don’t think the reason could be a blatantly unconstitutional reason like race (#5) and I personally believe that it could not be justified for patently corrupt reasons (such as #6) or even purely out of cronyism (#7).
I think if DoJ were to come and actually offer one of these justifications, the court could use the power granted to it by Rule 48 to deny the motion because it found the justification either insufficient or blatantly contrary to the public interest.
Now imagine a different scenario. In its motion, the Government gives Reason No. 8: no reason at all. Unbeknownst to the court, the true reason is Reason No. 1 (the line prosecutor has been bribed). The judge says: well, that’s insufficient. I’m going to put you under oath and ask you if you have been bribed. The Government seeks a writ from the Court of Appeal citing separation of powers concerns. The judge is not allowed to ask me if I have been bribed!
Would the Court of Appeal grant that writ?
Imagine the same scenario for each of the remaining justifications. The Government offers no reason in its motion, but in reality its secret reason is that the prosecutor thinks lilacs are pretty, or wants to cut a break to a white guy, or … that he was told to dismiss the case because President Trump wants to get his buddy off.
Are you telling me it violates the Constitution for the judge to simply say he wants to inquire further?
To me, that’s an easy question to answer. Of course not. It seems to me that the court should be allowed to inquire into the reasons, at least in some minimal fashion such as asking the decisionmakers questions about whether the proffered reasons are irrelevant, blatantly false, corrupt, and so forth.
He should at least be allowed to ask.
Now whether he is entitled to dismiss the case once he gets his truthful answer (if he does) is arguably a slightly harder question, depending on the scenario and depending on your view of the separation of powers. I’ll bet you the Separation of Powers crowd thinks that some of these justifications *(or lack thereof) are just peachy. I’m confident they think that the Government can march in and offer no reason at all, as in Scenario No. 8, and demand that the court dismiss. I bet they think several of the other justifications are fine, whether disclosed or held secret.
Their views might frighten you. But it certainly would be interesting to know how far they’d be willing to take this.
These are the sorts of questions that I think should be asked at any argument in this case — perhaps not on mandamus, where the relief is obviously not available for technical reasons having to do with who is injured and alternative means of addressing any injury. But these are the questions that go to the heart of why we have a leave of court requirement.
Just how far are the authoritarians willing to go?
*My philosophy is, when I get interested in a topic, I can add value by discussing it in depth. If you are coming here for your daily news and you are upset that I am not simply reciting the top story of the day, you don’t really understand this blog and you likely never will.