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Legal Advocacy Group Defends Judge’s Order in Michael Flynn Case: There’s ‘Substantial Evidence’ DOJ Didn’t Act in Good Faith

WASHINGTON, DC - DECEMBER 01: Michael Flynn, former national security advisor to President Donald Trump, leaves following his plea hearing at the Prettyman Federal Courthouse December 1, 2017 in Washington, DC. Special Counsel Robert Mueller charged Flynn with one count of making a false statement to the FBI.

A nonpartisan legal advocacy organization composed of attorneys and former federal and state judges filed an amicus brief on Wednesday defending U.S. District Judge Emmet Sullivan’s handling of the Michael Flynn case thus far.

Lawyers Defending American Democracy (LDAD) warned the U.S. Court of Appeals for the District of Columbia Circuit that Flynn’s case presented issues of significant constitutional consequence. The group asserted that it would threaten the American public’s confidence in the federal court system if the D.C. Circuit orders Sullivan to grant the Department of Justice’s motion to dismiss the criminal case against Flynn.

“The petition raises grave rule of law issues. Granting it would the threaten public confidence in the administration of justice that this and other Article III courts have sought to foster for more than two centuries,” the group wrote. “To order the District Court to grant the Government’s motion before it has had an opportunity to develop a proper record, hear from counsel, and render a considered decision would needlessly depart from the normal course of proceedings and, on the merits, would effectively nullify the requirement that such a motion be granted only with leave of court. Whether the petition is well-founded requires fact-finding for which an appellate court is ill-suited. Dueling briefs are not a substitute for the normal course of record-development.”

The controversy stems from Sullivan’s decision to not immediately grant the DOJ’s motion to drop the criminal case against Flynn even though the retired lieutenant general twice pleaded guilty to lying to the FBI. Judge Sullivan instead invited outside interested groups to file briefs with the court arguing why the DOJ’s motion should be denied. He also appointed retired federal judge John Gleeson to present the arguments against the DOJ and to examine whether Flynn should be held criminal contempt of court for perjuring himself over the course of his prosecution.

The crux of LDAD’s argument is that the addition of Rule 48(a) to the Federal Rules of Criminal Procedure removed prosecutors’ common law power to abandon criminal cases at will, granting district judges the authority to examine the reasons behind a prosecutor’s new posturing.

“In 1944, with the adoption of Rule 48(a), the Supreme Court fundamentally altered that practice by requiring leave of court for any such dismissal in federal court. Numerous cases since the adoption of Rule 48(a) make clear that the role of the courts in granting leave for any such dismissal is to ensure that the dismissal is consistent with the law and reflects good faith decision-making by the Government,” LDAD wrote.

The rule was enacted to allow courts to ensure the fair administration of criminal justice and judicial integrity, particularly where a prosecutor’s motion may be “prompted by considerations clearly contrary to the public interest,” according to the group.

While the court should presume the government is acting in good faith, the rule requires prosecutors to provide sufficient justification for their decision. In this case, the LDAD contends, the evidence actually rebuts that the DOJ acted in good faith when moving to dismiss the charge against Flynn, and says it would be premature for the circuit court to prevent the district court seeking clarification.

“Given the substantial evidence of a lack of good faith on the part of the Government in deciding to dismiss this case, the district court must have the opportunity to determine whether this constitutes ‘clear evidence’ that the Government did not properly discharge its official duties,” the brief stated. “To grant a mandamus would be inconsistent with Rule 48(a)’s requirement that the court exercise discretion when it decides whether to grant such a motion. If this Court were to grant a mandamus as a way to effectuate a Rule 48(a) dismissal, the leave-of-court requirement would be meaningless. It would be odd indeed to preempt a decision that the law thus entrusts in the first instance to the trial court. If such a case exists in the context of Rule 48(a), we have not found it and Petitioner has not cited it.”

The D.C. Circuit ordered Judge Sullivan to respond by June 1. Sullivan retained attorney Beth Wilkinson to explain his decision-making. Wilkinson formerly defended then-Supreme Court nominee Brett Kavanaugh against allegations of sexual misconduct.

Read the LDAD’s full brief below:

LDAD Motion for Leave Amicu… by Law&Crime on Scribd

[Image via Chip Somodevilla/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.