Did the US Court of Appeals Get the Michael Flynn Decision Correct?

On June 24, 2020, a three judge panel of the U.S. Court of Appeals for the D.C. Circuit issued an order to the trial court to dismiss the charges of lying to the FBI against former National Security Advisor Michael Flynn.  The panel was split, two judges to one, with Trump appointee, Neomi Rao, delivering the opinion of the court.

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 7^th, 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 (5^th 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.

For the YouTube video version of this article, click here:  https://youtu.be/_ZFJ7WLlno0

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 (5^th 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).

Trump Emphasizes Enforcement Priorities; Prosecutorial Discretion Remains Intact

U.S. President Donald Trump did not appear to curb the authority of immigration officials to engage in prosecutorial discretion when he signed an executive order on immigration policy and internal security on January 25, 2017.  This observation was supported by morning proceedings before the Arlington Immigration Court on January 26, 2017.  An attorney for U.S. Immigration and Customs Enforcement (“ICE”) stated in open court that her agency had received no instructions not to accept applications for prosecutorial discretion.  Accordingly, in a number of cases, Immigration Judge Thomas Snow granted continuances to permit immigration attorneys to submit prosecutorial discretion requests to ICE on behalf of their clients.

The process of exercising prosecutorial discretion to administratively close removal cases pending in Immigration Court which were not high enforcement priorities was first instituted by President Barrack Obama in 2011.  President Obama noted the limited resources available to enforce U.S. immigration law, and instructed immigration authorities to concentrate those resources on certain priority cases.  Those priorities included aliens with a criminal history, who pose a threat to public safety or national security, and who recently violated immigration law by entering without inspection by a Customs authority. 

In a memorandum dated June 17, 2011, ICE Director John Morton formalized the policy of exercising prosecutorial discretion.  Morton listed numerous factors for immigration authorities to weigh, including the length of the alien’s presence in the United States, the circumstances of the alien’s arrival, the alien’s ties to the United States, such as education, family members and contributions to the community, and other humanitarian concerns such as the health of the alien or the alien’s U.S. relatives.  By exercising prosecutorial discretion in appropriate cases, ICE would agree to administratively close a pending removal case, essentially permitting an alien who was present in the United States in violation of immigration law to remain.

President Trump's executive order is entitled "Enhancing Public Safety in the Interior of the United States."  In the opening paragraph, President Trump emphasizes the importance of enforcing U.S. immigration law in the interior of the country, to safeguard national security and public safety.  The President outlines his enforcement priorities to include alien who: (a)  Have been convicted of any criminal offense; (b)  Have been charged with any criminal offense, where such charge has not been resolved;  (c)  Have committed acts that constitute a chargeable criminal offense; (d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e)  Have abused any program related to receipt of public benefits; (f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security. These priorities are similar to those of the Obama Administration.

The President did not specifically mention prosecutorial discretion or the June 17, 2011 memorandum in his executive order.  However, the outlining of enforcement priorities lends credence to the conclusion that the ability of immigration authorities to exercise prosecutorial discretion remains in effect.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832

(571) 551-6069 (ESP)

The Perils of Immigration Reform by Presidential Decree

Immigration reform has certainly been stalled in Congress.  But, does that give the President the authority to push through immigration reform essentially by executive order.  While I agree that much of what the President has been doing falls within his discretion as the chief law enforcement officer, his actions do create a degree of uncertainty, and raise constitutional concerns.

I go into more detail in the article below:

http://ezinearticles.com/?Bucking-Congress,-President-Pushes-Immigration-Reform-Through-Exercises-of-Executive-Discretion&id=7313352

By: William J. Kovatch, Jr.
(703) 837-8832

Homosexual Partners to be Considered "Relatives"

Janet Napolitano, Secretary of Homeland Security, announced that Immigration and Customs Enforcement (ICE) would consider same-sex partners from a homosexual relationship to be "relatives" when the Department of Homeland Security is considering whether to grant some form of discretionary relief from removal or deportation.

What this means is that if an undocumented alien has a same sex partner who is a U.S. citizen or permanent resident, DHS would consider that partner to be a U.S. relative form the purpose of granting prosecutorial discretion.

Prosecutorial discretion refers to the authority that ICE attorneys have in deciding which cases to bring to Immigration Court, and which cases to ignore or close before seeking an order of removal.  In June of 2011, ICE issued a memorandum stating its policy to concentrate its resources on aliens with criminal records or who pose a threat to U.S. security.  In deciding whether to exercise prosecutorial discretion, ICE is to consider a number of factors.  One is whether a person has ties to relatives in the United States.

In a letter responding to Jerrold Nadler of the U.S. House of Representatives, Napolitano states that ICE will be instructed to consider long-term same-sex partners as U.S. "relatives" for the purpose of determining whether to grant prosecutorial discretion.

The new policy may open the door for undocumented aliens who are in a long-term homosexual relationship with a U.S. citizen or lawful permanent resident to other forms of discretionary relief as well.  For example, based on this policy, it may be possible to argue that same-sex partners should be considered as U.S. "relatives" when applying for deferred action.

Deferred action is essentially a promise by the U.S. Government that it will not seek the removal of an alien who is otherwise removable.  When the Government grants deferred action, it has the authority to issue employment authorization as well.  Whether to grant deferred action is a matter of discretion.  Recently, the President announced that he would grant deferred action to certain young people who were brought to the United States before the age of 16.  This is the deferred action for childhood arrivals (DACA) program.

But, the DACA program is not the only basis for granting deferred action.  The Government can decide that there are enough mitigating factors present to permit a person who does not have a valid immigration status to stay in the United States.  One factor that the Government takes into consideration is whether a person has any U.S. relatives, such as a spouse or children.

Napolitano's directive does not go so far as to say that U.S. citizens can file a visa petition to obtain permanent residency, or a green card, for a same sex partner who is also an alien.  The Defense of Marriage Act prohibits the U.S. Government from considering a same sex partner to be a spouse, even if the homosexual couple has married in a state or country where same sex marriage is legal.  To change this policy would take an act of Congress.

The text of the letter can be found at this link:

http://www.kovatchimmigrationlaw.com/12-3384-Nadler-S1-Signed-Response-09.27.12.pdf

Much of what is written in the press on this is confusing.  Here are some links to the best of the articles I've seen so far:

http://www.nytimes.com/2012/09/29/us/homeland-security-puts-it-in-writing-on-immigration-policy-and-gay-couples.html?_r=0

http://latino.foxnews.com/latino/news/2012/09/28/dhs-to-ease-immigration-rules-for-gay-couples/http://latino.foxnews.com/latino/news/2012/09/28/dhs-to-ease-immigration-rules-for-gay-couples/

By:  William J. Kovatch, Jr.
(703) 837-8832

Prosecutorial Discretion - How It Works

I was in Immigration Court on Thursday. A couple of cases, including my own, bought up the President's announcement concerning the new policy toward exercising prosecutorial discretion. Applications for prosecutorial discretion have to be made directly to the Chief Counsel's Office. So, in Washington, DC and Virginia, and alien would write directly to Rafael Choi, the Chief Counsel for this area. The application should contain all information necessary to convince the Chief Counsel to exercise his discretion not to seek removal of the alien. In the meantime, if there is no hope of any other ground of relief, ICE will not support release on bond.

In my case, the only relief we could request was voluntary departure. ICE would not agree to release on bond. Nor would ICE agree to voluntary departure with a voluntary departure bond. But, ICE did agree that we could apply for prosecutorial discretion even after the Judge issued the voluntary departure order.

Best practice, then, is to make the application before coming to Court, as an application for prosecutorial discretion will not be a basis for an Immigration Judge granting bond.

Has ICE Really Changed Its Policy?

Today, I am going to see if ICE will put its money where the President's mouth is. The President announced that ICE would focus its priorities on removing aliens with criminal records who are a danger to the public safety. This Wall Street Journal article discusses how the change in priority was due in part to the number of people being removed based solely on a minor traffic offense.

The White House posted the announcement on its official blog. The blog refers to ICE's exercise of prosecutorial discretion. A memorandum on the exercise of that discretion can be found with this link.

I have a client with a family in the United States, who was arrested for a traffic offense. He has no other criminal convictions. To date, ICE has refused his release on bond. I am renewing my request for his release today, and intend to renew it again when we have his Immigration Court date. We will see if the President is serious or just talk.

The Obama Administration announced that it would allow more undocumented aliens stay in the country, and focus its deportation efforts on those with more serious criminal convictions. The Washington Post details the announcement in this article.

If this is true, it will be a major policy shift. Last year, after a tragic traffic accident in Northern Virginia involving an alien who was in removal proceedings but who had a temporary work permit, ICE adopted a harsh policy toward alien detained after traffic offenses. Under US immigration law, for example, a first time DUI is generally not a deportable offense. However, ICE was detaining people arrested for DUI (even before the arrest resulted in a conviction) and refusing to set a bond for release.

Later in the year, ICE was detaining people who were arrested for offenses as minor as driving without a license, and refusing to set bond for release. This was happening, even when the person had no criminal record, and when the person had a US citizen newborn baby whom he was supporting.

If this change in policy is true, it may perhaps open more doors of relief to aliens pulled over for minor traffic offenses.