shutterstock.com

Editor's Note: This commentary was written in response to the Law Journal Editorial Board's piece "Appropriate to Appoint an Amicus in the Flynn Case," published May 26, 2020.

Federal District Court Judge Emmet G. Sullivan committed a serious error in judgment in United States v. Michael T. Flynn, and the D.C. Circuit Court of Appeals will grant the pending Mandamus Petition.

On May 21, 2020, the Court of Appeals issued an order directing Judge Sullivan to respond to defendant Michael Flynn's Petition for a Writ of Mandamus. Petitioner Flynn is the former Trump National Security Advisor who was fired and then prosecuted by Special Counsel's Office for allegedly lying to two FBI agents about a telephone call he had with the Russian ambassador in late 2016. On June 1, 2020, Judge Sullivan filed his brief in response, and oral arguments were held before the D.C. Circuit on June 12, 2020.

The conflict arose from J. Sullivan's refusal to grant the Justice Department's May 7, 2020, motion to dismiss the Flynn prosecution "with prejudice" pursuant to Federal Rule of Criminal Procedure 48a. Notwithstanding settled precedent that decisions to nolle prosequi a criminal case are exclusively reserved to the Executive Branch, J. Sullivan balked. In a strange move, the judge appointed former federal judge John Gleeson as amicus "to present arguments in opposition to the Government's Motion to Dismiss." That appointment came one day after Gleeson advocated in The Washington Post that Rule 48a authorizes district judges to investigate the bona fides of the Justice Department's dismissal motions.

Gleeson opined that the rule's phrase "with leave of court" empowers J. Sullivan to "hold hearings to resolve factual discrepancies" and entertain arguments from partisans who question the government's good faith so "the American public" can decide for themselves if the dismissal motion was the product of "corruption" and "improper political influence." Following Gleeson's appointment, J. Sullivan put out a casting call for others to join the federal food-fight as amici.

Flynn's counsel immediately moved before the D.C. Circuit Court of Appeals seeking a writ of mandamus enjoining J. Sullivan's frolic and detour. The Appellate Court ordered J. Sullivan to respond to the petition, and cited the jurist to Rule 48a and United States v. Fokker Services, 818 F.3d 733 (D.C. Cir. 2016). The Appellate Court's reference U.S. v. Fokker Services was not insignificant.

Defendant Fokker self-reported $21 million in revenue from the sale of controlled goods to banned countries in violation of export control laws. Following a four-year investigation, the government filed a one-count Information, a deferred prosecution agreement (DPA), and a joint motion to extend time under the Speedy Trial Act. The act permits an extension of time to avoid trial "with the approval of the court." The district judge denied the motion, believing the DPA was too lenient and not a proper exercise of prosecutorial discretion. Both parties appealed. Id at 737-741.

In Fokker, the D.C. Circuit Court of Appeals vacated the district court's order and directed the judge to grant the motion. Id at 751. The Fokker court held that the Constitution allocates primacy in criminal matters to the Executive—which includes "whether to dismiss charges once brought"—and that the Judiciary lacks the competency and authority to second-guess those determinations. Id at 737 & 741. The Fokker opinion insures the outcome of Flynn's mandamus petition.

The Fokker court stressed that statutes and court rules must be narrowly interpreted to preserve the Executive Branch's Article II powers to "take care that the laws be faithfully executed." Id at 742.  The court gave two examples.

The Antitrust Procedures Act authorizes district judges to enter consent decrees if "in the public interest." The act's operative language does not, however, empower district judges to assume the role of the Attorney General and decide what is actually in the public interest; that determination resides with the Executive. Id at 742-743.

Secondly, while Rule 48a requires the government to obtain "leave of court" before criminal charges can be dismissed, the "leave of court" language does not authorize district judges to determine the appropriateness of the prosecutor's decision to dismiss. The Fokker court noted Rule 48a was intended to protect defendants from prosecutorial harassment by dismissing charges over their objections—not an extension of judicial authority. Id.

The Fokker court stated clearly, "the 'leave of court' authority gives no power to a district court to deny a prosecutor's Rule 48a motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority," which includes the "decision to dismiss pending criminal charges." Id at 742. The Court of Appeals emphasized that "the 'public interest' language in the Tunney Act, like the 'leave of court' authority in Rule 48a, confers no new power in the courts to scrutinize and countermand the prosecution's exercise of its traditional authority over charging and enforcement decisions." Id at 743.

Through esteemed counsel, J. Sullivan urged the Court of Appeals to permit an inquiry into the government's decision-making because there appears to be "at least a plausible 'reason to question' the 'bona fides' of the Government's motion to dismiss." J. Sullivan alluded to intrigue and political chicanery as evidenced by: (1) the length of and factual detail in the government's motion; (2) that the motion was filed by an Acting United States Attorney unaccompanied by a "line prosecutor." The entire argument was unflattering sophistry.

The circuit court's holding in U.S. v. Fokker was that decisions whether to initiate charges, whom to prosecute, which charge to bring, and whether to dismiss charges once brought reside exclusively within the Executive Branch. Rule 48a does not empower a district judge to subject the government to adversarial proceedings against third-party detractors, to put the government's good faith to the test for the mob to decide, based solely on speculation.

In January 2020, following the IG's report of FISA Court abuses by FBI and DOJ officials, Attorney General William Barr ordered an outside United States Attorney to review the entire Flynn case file.

On May 7, 2020, the Acting U.S. Attorney moved to dismiss Flynn's prosecution "pursuant to the Principles of Federal Prosecution and based on extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice."

The government detailed 20 pages of FBI misconduct, violations of standard investigative protocols, and Director Comey's failure to follow advice of the Deputy Attorney General, senior DOJ officials, the directors of the DNI and CIA, the head of the FBI's Counterintelligence Division, and an unnamed FBI attorney, to alert the White House if the FBI had concerns about the Flynn-Kislyak call.

The government was also persuaded by "newly discovered and disclosed information"—an apparent reference to exculpatory evidence that an Assistant FBI Director questioned the legitimacy of the investigation and the predicate for interviewing Flynn.

The D.C. Court of Appeals will ultimately have to grant Flynn's petition and rebuke the district court for its usurpation of Executive authority that contravenes its decision in U.S. v. Fokker. Rule 48a does not extend broad authority to district court judges to jettison the presumption of regularity and force the government to defend its prosecutorial decisions and motives against invited attacks from third-party detractors. Not on this record.

Matthew Murphy is an attorney licensed to practice in the State of New Jersey and Commonwealth of Pennsylvania (inactive), who is presently employed by a public agency. The legal analysis offered in this piece represents his own personal views. Murphy does not speak for his employer, and his employer has had no involvement in the preparatin of this piece. Nothing in this submission should be construed as anything other than the author's own personal opinion.