Flynn has confessed to lying to the FBI about whether he had
spoken with Russian Ambassador Segei Kislyak about official U.S. sanctions
against Russia, imposed by the Obama Administration because of Russia’s
interference with the 2016 presidential election, before Flynn had been
appointed as the National Security Advisor.
This was a violation of the Logan Act, which makes it illegal for a
private citizen to negotiate with a foreign power that has a claim against the
United States. You may recall that Flynn
had the shortest term as National Security Advisor ever, as he was fired only
twenty-two days into the Trump Administration.
He was fired for lying about this same subject matter, whether he spoke
to Ambassador Kislyak about the sanctions before assuming office, to both Vice
President Michael Pence and Chief of Staff Reince Priebus. Legally speaking, was the Court of Appeals
correct?
There is obviously a lot of context behind the Flynn
prosecution. I explain all of that
context in another video. I will have a
link to that below.
This confession was obtained by Special Counsel Robert
Mueller and his team as part of plea bargain.
Flynn would admit to lying to the FBI, and the Special Prosecutor would
not bring further charges against Flynn and his son in connection with their
lobbying work for arms of the Russian Government, and for the benefit of
President Erdogan of Turkey.
Flynn confessed to his lie to the FBI in open court, and was
awaiting sentencing.
Meanwhile, Trump was acquitted by the Senate following his
impeachment by the House of representatives over his attempt to solicit
Ukrainian interference in the 2020 presidential election. Emboldened by his acquittal, Trump went on a
rampage of vindictiveness, firing U.S. officials who had provided testimony
before the House, firing the Inspector General who referred the matter to
Congress, and seeking the dismissal of charges against the Russian defendants
who were indicted by Robert Mueller and his team of investigators. Indeed, Trump concerned over his own presidential legitimacy, enlisted the help of his Attorney General Bill Barr to paint the Mueller Investigation and resulting report as illegitimate.
To that end, on April 30, 2020, Donald Trump tweeted his
support of Michael Flynn, saying that what happened to him should not happen to
any U.S. citizen again. On week later,
on May 7th, the Justice Department filed a motion to dismiss the
charges against Michael Flynn, pursuant to Federal Rule of Criminal Procedure 48(a),
and signed by interim United States Attorney for the District of Columbia,
Michael Shae. In response, the lead
prosecutor in the case, Brandon L. Van Grack, withdrew from the case. In fact, none of the attorneys who had been
involved in the Flynn prosecution signed on to Shea's motion.
The trial judge, U.S. District Judge Emmet G. Sullivan,
chose not to grant the motion to dismiss right away, instead setting a schedule
to allow amicus curiae briefs, and appointing U.S. District Judge John Gleeson to
present arguments against the motion to dismiss. Flynn’s attorneys filed an emergency motion
for a writ of mandamus with the D.C. Circuit, who, of course, issued its order
to Judge Sullivan to dismiss the case.
At issue is the text of Federal Rule 48(a), which
reads: “The Attorney General or the
United States attorney may by leave of court file a dismissal of an indictment,
information or complaint and the prosecution shall thereupon terminate.” The key language being, “by leave of the
court.” What exactly does this
mean? Does it give Judge Sullivan the
authority look behind the Government’s motion and determine its motivations?
Judge Rao answered that it didn’t. Quoting United States v Fokker Servs,,
818 F.3d 733 (D.C. Cir. 2016), Judge Rao claimed that the decision of whether
to dismiss charges fell squarely within the discretion of the U.S.
Attorney. Judge Rao further claimed that the
Supreme Court declined to construe the “leave of court” language “to confer any
substantial role for courts in the determination whether to dismiss charges.” According to Rao, the trial court’s authority
was limited to extraordinary circumstances, and that the rule’s principal
objective was to prevent prosecutorial harassment. That is, the situation where a prosecutor would
file charges, dismiss them, and then refile them just to harass a defendant.
But was Judge Rao’s reasoning correct?
Well, first, let’s take a look at the case she cites to
support her position. The Fokker
case involved a foreign company that had violated U.S. export licensing laws to
export certain technology to Iran, Sudan and Myanmar. The defendant company entered into an
agreement with the government, which involved deferring prosecution over a
period of time, while the company adhered to a set of conditions. For the agreement to take effect, the court
had to grant an exception to the Speedy Trial Act. The trial court refused, expressing concern
that the Government had chosen to prosecute only the company, and not the
company’s executives who made the decisions to violate the exporting law. The appellate court simply concluded that it
wasn’t the trial court’s job to decide who the Government should prosecute.
Another case cited by Judge Rao was Newman v. United
States, 382 F.2d 479, 127 U.S.App.D.C. 263 (D.C. Cir. 1967). This case involved two defendants charged
with housebreaking and petty larceny.
The Government agreed to a plea bargain with one defendant that permitted
him to plead guilty to a lesser misdemeanor charge. The second defendant objected that he did not
get the same deal. By failing to give
him the same deal, the second defendant argued that he was denied due process
because he had equal standing as the first defendant. That is, if you chose not to prosecute my
friend, who was involved in the same crime, you should not be able to prosecute
me. The court rejected the argument,
saying that selective prosecution alone was not sufficient to show a
constitution violation.
The problem with both of these cases is that neither involved
the application of Rule 48(a). That is,
neither case involved a Government’s motion to dismiss charges. In both cases, the party at issue was being
prosecuted, and there was merely criticism that some other party wasn’t being
prosecuted for the same thing.
Well, specifically in reference to Rule 48(a), Judge Rao
cited a Supreme Court case of Rinaldi
v. United States,
434 U.S. 22 (1977).
Citing footnote fifteen of that case, she stated, “More specifically,
“[t]he principal object of the ‘leave of court’ requirement is...to
protect a defendant against prosecutorial
harassment ...when the Government moves to
dismiss an indictment
over the defendant’s objection.”
So, what does Rinaldo say? Does that case stand for the proposition that
the “leave of court” language was meant only to prevent prosecutorial
harassment?
Well, Rinaldi involved a defendant who was involved
in a plot to rob safety deposit boxes.
His conduct could have been prosecuted under both Florida state law, and
federal law. Florida prosecuted and
convicted. The Federal Government then
prosecuted, but it ended in a mistrial.
During the retrial, the judge asked the prosecutor whether he had
authority to move forward with the case, because the U.S. Attorney’s Office had a policy that when the same conduct could be prosecuted under state and federal law, if
the state obtained a conviction, the Federal Government would refrain from
prosecution. The Assistant U.S. Attorney
said he had such authority. The trial
went forward and the defendant was convicted.
After conviction, the defendant’s attorney convinced the
U.S. Attorney’s Office to drop the charges, based on the policy of not
prosecuting when the state had already obtained a conviction. The Government presented a motion to dismiss
to the trial court. The trial court
denied the motion citing two reasons: (1) that the motion came after the trial
was completed; and (2) that the trial attorney showed bad faith in prosecuting
the case in the first place.
The appellate court upheld the denial of the motion, but
only based on the bad faith of the trial attorney. The Supreme Court reversed, saying that the
issue was not the bad faith in prosecuting the case, but whether there was bad faith
in seeking the dismissal of the charges.
And with that context, here’s the full text of the footnote
in the Supreme Court’s decision in Rinaldi:
“The words "leave of court" were inserted in Rule
48(a) without explanation. While they obviously vest some discretion in the
court, the circumstances in which that discretion may properly be exercised
have not been delineated by this Court. The principal object of the "leave
of court" requirement is apparently to protect a defendant against prosecutorial
harassment, e. g., charging, dismissing, and recharging, when the
Government moves to dismiss an indictment over the defendant's objection. . . .
But the 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. . . . It is unnecessary to decide whether the court
has discretion under these circumstances, since, even assuming it does, the
result in this case remains the same.”
The full text of that footnote clearly leaves open the
possibility that some other reason, which is clearly contrary to the public
interest, may prompt a court to deny a Government motion to dismiss
charges. And to support that
proposition, the Supreme Court cited a Fifth Circuit case, United States v.
Cowan, 524 F.2d 504 (5th Cir. 1975). In Cowan, the defendant faced seven count indictment, six of which involved
misapplication of federal funds of a federally insured savings and loan. The charges were brought in the U.S. District
for North Texas. Meanwhile, that same
defendant was charged with bribing a public official in connection with the
Watergate investigation. The Watergate
Special Prosecutor entered into a plea agreement with the defendant. If the defendant helped the Special
Prosecutor, and pleaded guilty to bribing a public official, the U.S.
Government would drop the charges in the Texas court. The defendant agreed, and the U.S. Attorney
filed a motion to dismiss the charges in the U.S. District Court in Texas.
The trial judge, however, had a problem with that, and
denied the motion. The U.S. Attorney
filed an intent not to prosecute, and the trial judge appointed a Special
Prosecutor for these charges.
The U.S. Court of Appeals for the Fifth Circuit considered
the extent of prosecutorial discretion, and Rule 48(a)’s requirement to seek
“leave of the court.” The Fifth Circuit
noted that the Executive Branch has absolute discretion on whether to bring
charges. But on whether to dismiss
charges is another matter. Looking at
the history of Rule 48(a), the court noted that in the common law, the
prosecutor has absolute discretion to decide when to dismiss charges. But, thirty states had abrogated that rule,
requiring either a court order or leave of the court to dismiss charges once
brought. State law provided that the
court had the power to deny a motion to dismiss to uphold the “public
interest.”
With this background The American Law Institute issued its
Model Code of Criminal Procedure. This
is just an attempt to put together the best practices of the states to suggest
how the states could reform and harmonize their criminal procedure law. At any rate, in the Model Code, The American
Law Institute codified the state statutory law that gave courts wide discretion
to deny leave to terminate a prosecution that had already been started.
So, the Supreme Court appointed a committee to consider
changes to the Federal Rules of Criminal Procedure. That committee suggested a change to the
rules, which stated, "The Attorney General or the United States Attorney
may file a dismissal of the indictment or information with a statement of the
reasons therefor and the prosecution shall thereupon terminate." That is, the Executive Branch still had broad
discretion to decide when to terminate charges, but they would have to state
their reasons. Well, the Supreme Court
read this proposal, and asked the committee, if the Executive Branch should
have this much discretion. In submitting
the next set of proposals, the committee submitted the same rule, without
change. In adopting the Federal Rules of
Criminal Procedure, the Supreme Court rejected the committee’s proposal,
replacing the phrase “with a statement of the reasons thereof” with “leave
of the court.” The Court offered no
explanation for this change.
Nonetheless, the Fifth Circuit concluded that this
demonstrated a clear intent on the part of the Supreme Court to give the trial
court some role in determining whether a dismissal of criminal charges was
appropriate.
To this end, the Fifth Circuit agreed that our Constitution
is based on a separation of powers. That
is, Congress makes the laws, the Executive Branch, headed by the President,
enforces the laws, and the courts hear cases to determine if a particular
defendant has violated the law. But, in
order to protect against the abuse of power, the three branches are not
absolutely separate, air-tight compartments.
Rather, we have a web of checks and balances on each branch’s powers
that was designed to prevent abuse of power.
This is not to say that the rule gives courts unfettered ability to usurp
or interfere with Executive’s good faith exercise of power to ensure that the
laws are faithfully executed. But it is
a check on power, and leave can be withheld if the dismissal of charges is
clearly contrary to manifest public interest.
Now, in the facts of the Cowan case, the dismissal
was not against public interest. The plea
bargain was not a sham or deception, and helped further another investigation.
When you put all of this together, you come to one
inescapable conclusion. Judge Rao was
mistaken. The “leave of court” language
is not limited to preventing a prosecutor from harassing a defendant by
dismissing a charge, and then refiling the same charge. Instead, the rule gives the trial court the
discretion to deny the motion, in extraordinary circumstances, where the
dismissal of the charges would go against the manifest public interest. And in determining the manifest public
interest, it is appropriate for a trial court to consider whether the motion
for dismissal was the result of bad faith.
In this case, the issue is the corruption of the Trump
Administration. Is Trump manipulating
his Justice Department, first to discredit the Mueller Report, which clearly
found that Russia interfered in the 2016 presidential election, and outlined
facts that support a conclusion that Donald Trump himself committed obstruction
of justice with respect to the Mueller Investigation. While the House may not have impeached him on
this point, this does not mean that once Trump leaves office that the U.S.
Attorney is forbidden from bringing obstruction of justice charges against
Trump. So, Trump needs to discredit the
investigation.
Part of that is the argument that Attorney General Bill Barr
had made, which is that the FBI investigation against Michael Flynn for
violation of the Logan Act itself lacked legal authority. Thus, Trump is using his pliant Attorney
General both to ensure that his friend, Michael Flynn, gets favorable treatment
despite confessing to lying to the FBI, and that the steps which led to the
Mueller Investigation are discredited.
But simply, the motion to dismiss the charges against Flynn are the
result of bad faith.
So what now? The
attorney representing Judge Sullivan filed a motion for rehearing en banc, meaning a hearing before all eleven
judges of the D.C. Circuit, instead of just a panel of three. Given that there is so little case law
interpreting Rule 48(a), and the importance of this case, I would think it would
be likely that the D.C. Circuit would grant a motion for rehearing en banc. But even then, if Judge Rao’s decision
stands, Judge Sullivan’s attorney could file for a writ of certiorari with the
U.S. Supreme Court. That is, he could
ask the U.S. Supreme Court to hear the case.
Once again, given the dearth of precedent on the issue, what appear to
be clear error by Judge Rao, the fact that the Supreme Court is the overseer of
the Federal Rules of Criminal Procedure, and that importance of this case, it
seems like a very good possibility that the Supreme Court would want to hear
this case and offer its guidance.
By: William J. Kovatch, Jr.
For Background information on Michael Flynn, please see my YouTube Video, The Republican Party and Low Information Voters: Russia, Michael Flynn and Trump's Desire for Legitimacy.
References
Rules
Federal Rule of Criminal Procedure 48.
Cases
In re: Michael T. Flynn, Crt No. 20-5143 (D.C. Cir. June 24, 2020).
Newman v. United States, 382 F.2d 479, 127 U.S.App.D.C. 263 (D.C. Cir. 1967).
Rinaldi v. United States, 434 U.S. 22 (1977).
United States v. Cowan, 524 F.2d 504 (5th Cir. 1975).
United States v Fokker Servs,,818 F.3d 733 (D.C. Cir. 2016).
Articles
Framptom, Thomas Ward, "Why Do Rule 48(a) Dismissals Require 'Leave of Court,'" Stanford Law Review (Volume 73, June 2020).
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