The conventional wisdom is that Judge Sullivan will use the occasion of the Michael Flynn hearing (currently set for September 29) to rant and rave about the Government’s conduct … and then he will grant the motion. I think the conventional wisdom is correct — but I think he should deny the motion.
The amicus’s recently filed brief makes the case very clearly. This post assumes you haven’t read the brief — which, you should — and summarizes the main arguments.
First, the Government claims there is not even a live case or controversy because the Government and Flynn agree about what should happen. The en banc court explicitly rejected that claim.
Next comes the issue of whether the Court has discretion to dismiss. The amicus, Judge Gleeson, hammers the Government hard about one simple fact: the claim that the “principal” aim of Rule 48 is protection of the defendant necessarily means there are other aims. He quotes D.C. Circuit precedent holding that “[a]lthough decisions not to prosecute may be immune from review, the same cannot be said of decisions to dispose of a pending case …” Past cases have made it clear that courts can scrutinize the Government’s motive without violating the separation of powers when the defendant objects — and the fact that the defendant might agree does not change the separation of powers issue, as the executive’s decision is still the executive’s in either case. This means the separation of powers does not preclude the court from scrutinizing the Government’s motives.
Gleeson argues that if the Government’s statement of reasons is deficient, or if there is evidence of gross abuse, either is a ground to deny a motion to dismiss. I have discussed this before in a post offering various hypotheticals, such as: the Government says “dismiss because we say so”; or the Government cites documentary evidence but refuses to share it with the Court. Such “showings” would be plainly insufficient. If the Government shared the documentary evidence with the Court and that evidence said the opposite of what the Government claimed it said, that too would justify denial of the motion, in my view.
Gleeson says: “As demonstrated by history, Rule 48(a)’s requirement that the Government explain itself exists partly to smoke out the corrupt dismissal of criminal charges against the politically well-connected precisely because they are well-connected.” He cites case law that gives as examples of illegitimate reasons dislike of the victim, or dissatisfaction with the empaneled jury. Surely a desire to benefit the president’s crony is no more legitimate.
The Government cites “materiality” as part of its justification for the motion to dismiss, but Gleeson notes that the Government misstates the standard of materiality in a way that directly contradicts the Government’s previous filings in the same case. Flynn’s statements were “capable of affecting” the FBI’s “general function” and the Government has not even tried to explain how they weren’t — which is unsurprising because it contradicts the Government’s stance in every other false statements case in the country. Not only that, Gleeson says, but the Government has said in the past that Flynn’s statements in fact did hinder an FBI investigation — and the judge has previously bought off on exactly that theory. The Government can’t just come along and yank that justification away (yoink!) without a convincing explanation — and it has provided none. The closest the Government has come is to pretend, disingenuously, that the real issue is whether the FBI was hindered in its investigation of Flynn’s own bad acts (it said the FBI was not hindered) rather than whether the FBI was hindered in its own overall national security investigation (and the Government has previously said the FBI was hindered on that score, and the Government cannot explain how now, all of a sudden, the FBI was not hindered). As Gleeson notes, this is a distortion of the materiality standard.
Remember the nonsensical Government stance in its initial motion that there was no predication for the original investigation? That laughable claim has now been jettisoned in favor of some discussion about a vague internal disagreement about “protocols.” Meanwhile, the Government now pretends that Flynn has to have been an “agent of Russia” when he made the statements for them to be material, which is a made-up standard they have never used elsewhere. The Government trots out other new justifications for the motion (e.g. the jury might not have liked our witnesses or the fact that the FBI agents already knew the answers to the questions they asked Flynn) which, Gleeson notes, is nothing more than a shifting rationale that indicates a pretext.
The Government now claims it would be difficult to show the statements were false — never addressing Flynn’s sworn statement that they were false. Of course, Flynn claims he entered the plea and made these statements because the Government threatened his son … but the Government denies that vociferously (and indeed, as I have discussed here before, the documentary evidence belies any such theory).
The elephant in the room, not even mentioned by the Government, is the way that Trump has always tried to get Flynn off the hook, starting with his private entreaties to James Comey to let Flynn go. Here is Gleeson’s powerful close to his brief:
Based entirely on evidence already in the public view, the only coherent explanation for the Government’s exceedingly irregular motion — as well as its demonstrable pretexts—is that the Justice Department has yielded to a pressure campaign led by the President for his political associate. This Court need not “exhibit a naiveté from which ordinary citizens are free” by pretending otherwise. United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977). It should instead deny the government’s request for leave under Rule 48(a) and proceed to sentencing
I absolutely agree. I think Sullivan should go through this step by step, make factual findings about the lack of forthrightness on the part of the Government, and deny the motion. I don’t doubt that the D.C. Circuit would overrule him, but I think they would have to twist themselves into pretzels to explain why. This brief lays out an excellent road map for denying the motion and I defy anyone to actually read the whole thing and disagree.