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Michael Flynn Judge Just Told the D.C. Circuit Why He Refused to Immediately Dismiss Prosecution

WASHINGTON, DC - JUNE 24: President Donald Trump’s former National Security Adviser Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC. Criminal sentencing for Flynn will be on hold for at least another two months.

A much-anticipated explanation from the federal judge presiding over Michael Flynn’s criminal case was submitted on Monday in the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit previously ordered U.S. District Judge Emmet Sullivan to explain, within 10 days, why he didn’t immediately grant the Department of Justice’s motion to dismiss the Flynn case. That order came down after Flynn’s lawyers filed an emergency petition for a writ of mandamus with the D.C. Circuit, asking the appellate court to direct Sullivan to dismiss the case.

Here’s what the 46-page filing said in the opening lines:

The unique facts of this case warrant evaluation by the trial judge before any review by this Court.

It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime. It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.

These reversals presented Judge Sullivan with several substantial questions. Was he required to grant the government’s post-plea motion to dismiss, and reverse his findings that Mr. Flynn’s false statements to the FBI about his contacts with Russia were material, without any inquiry into the facts set forth in, and surrounding, the government’s filing? What implications would dismissal have on Mr. Flynn’s separate false statements to the Department of Justice about his work for Turkey, which were part of his plea agreement but not addressed in the government’s motion? Do the facts here provide reason to question the “presumption of regularity” that ordinarily attaches to prosecutorial decisions, United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016)? And what, if anything, should Judge Sullivan do about Mr. Flynn’s sworn statements to the court, where he repeatedly admitted to the crime and to the voluntariness of his guilty plea, only to now claim that he never lied to the government and was pressured and misled into pleading guilty? Because the parties before him now support the same relief, Judge Sullivan turned to an approach used by federal courts across the country, as well as district courts in this Circuit: He appointed an amicus to present counterarguments, and set a briefing schedule giving the government and Mr. Flynn the last word.

The question before this Court is whether it should short-circuit this process, forbid even a limited inquiry into the government’s motion, and order that motion granted. The answer is no.

Monday marked the tenth day of the “within ten days” order. After the D.C. Circuit order was issued, Sullivan retained top trial lawyer Beth Wilkinson to make his case. Wilkinson famously represented then-Supreme Court nominee Brett Kavanaugh during the 2018 confirmation hearings. The DOJ was also invited to file a response within the 10-day time frame.

RELATED: DOJ Fires Back at Judge Emmet Sullivan in D.C. Circuit: We’re the Prosecutors Here, Not You

Wilkinson argued Monday on Sullivan’s behalf that “Mandamus is an extraordinary remedy that should be denied where the district court has not actually decided anything. The government’s motion is pending before Judge Sullivan and could well be granted, so Mr. Flynn can obtain the exact relief he seeks through ordinary judicial process.” This is a long way of saying that the D.C. Circuit shouldn’t intervene since Sullivan hasn’t done anything but take a closer look at what’s going on here.

Amici curiae in former independent counsel Ken Starr and former Republican congressman Trey Gowdy weighed in and backed the DOJGeorge Conway, Laurence Tribe, Watergate prosecutors and others took the opposite stance, arguing that Sullivan was acting within his authority when appointing retired federal judge John Gleeson to present the arguments against the DOJ. Sullivan also ordered Gleeson to examine whether Flynn should be held criminal contempt of court for perjuring himself over the course of his prosecution.

A footnote summed up Sullivan’s appointment of Gleeson as amicus curiae:

Contrary to Mr. Flynn’s suggestion (Pet. 11–17), Judge Sullivan’s ap- pointment of an amicus to brief the contempt power is appropriate. Because contempt implicates core Article III powers, “Courts cannot be at the mercy of another Branch in deciding whether [contempt] proceedings should be initiated.” Young, 481 U.S. at 796. That is why the Federal Rules explicitly authorize the appointment of a special prosecutor to investigate contempt. See id.; see also Fed. R. Crim. P. 42(a)(2). Judge Sullivan’s amicus order is more restrained: It does not appoint Judge Gleeson to prosecute any contempt charge, but merely to address whether initiating a contempt proceeding here would be appropriate, and gives Mr. Flynn the last word on the question.

Former National Security Advisor Flynn twice admitted in federal court that he was guilty of lying to the FBI about his contacts in 2016 with then-Russian Ambassador to Washington Sergey Kislyak. Months and months passed and sentencing never occurred. Flynn fired the Covington & Burling lawyers who secured a plea deal, hired a new team led by conservative attorney Sidney Powell and moved to withdraw his guilty plea. Flynn’s team repeatedly railed against FBI and prosecutorial misconduct. Finally, they asked for the case to be tossed entirely. Eventually, the DOJ adopted the position that the case against Flynn should be dismissed with prejudice, calling that the “proper and just course” of action.

The Sullivan filing on Monday mentioned that Sidney Powell actually sent him a copy of her book “Licensed to Lie” years ago and expressed her gratitude for his “honorable service” on the bench. Sullivan apparently disclosed this after Powell appeared for the first time in the Flynn case:

On counsel’s first appearance in the case, Judge Sullivan disclosed that several years earlier, she had sent him a copy of her book, Licensed to Lie, with the inscription: “Judge Emmet Sullivan, to all those who seek, hallow, and do Justice. With the greatest respect and gratitude for your honorable service ….” Dkt. 94 at 3. Neither party objected to Judge Sullivan’s proceeding with the case.

The legal questions raised by the court and by non-court appointed amici curiae largely focused on whether Rule 48(a) of the Federal Rules of Criminal Procedure and United States v. Fokker Services give Judge Sullivan the authority to keep alive the Flynn case when both prosecution and the defense want the case dismissed. Rule 48(a) deals with dismissal of a case by the government and says: “The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.”

The words “with leave of court” are important here. Fokker is a prosecutorial discretion case that, perhaps crucially, the D.C. Circuit is quite familiar with:

On April 5, 2016, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) overturned the decision of the U.S. District Court for the District of Columbia (the District Court) in United States v. Fokker Services B.V., finding that the requirement of court approval to exclude time under the Speedy Trial Act does not grant judges the authority “to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges.” The District Court opinion had provoked considerable interest from both prosecutors and the defense bar, raising questions over the interplay between prosecutorial discretion and judicial review of criminal settlements. In finding the District Court had overstepped its authority, the D.C. Circuit confirmed that charging decisions (as opposed to sentencing) are firmly within the purview of the executive branch, and that deferred prosecution agreements concern the core prosecutorial decisions about what charges to bring and, if brought, whether to dismiss them.

Those arguing in favor of the dismissal of Flynn’s case have generally maintained that the final call here actually belongs to the executive branch and that Sullivan has violated the separation of powers. Sullivan argued, on the other hand, that the “factbound inquiry” he is attempting to conduct “involves well-established Article III powers, and the district court should be permitted to address it in the first instance”:

The contempt power is “settled law” that “is essential to the administra- tion of justice.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795 (1987). It springs from the court’s Article III responsibility to protect its es- sential functions, including preserving the integrity of courts and the truth- seeking process. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994). Under this inherent power, “a court may issue orders, punish for contempt, vacate judgments obtained by fraud, conduct investiga- tions as necessary to exercise the power, bar persons from the courtroom, assess attorney’s fees, and dismiss actions.” United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993).

To be clear, a contempt finding or sanction against Mr. Flynn may prove unwarranted. If the representations in his January 2020 declaration are true, they present attenuating circumstances for his prior, contrary statements. But the nature and extent of Mr. Flynn’s reversals under oath—from whether he lied to the government in January and March 2017, to whether he was coerced into pleading guilty, misled by his former attorneys, or improperly dissuaded from withdrawing his guilty plea in 2018 when Judge Sullivan offered that option—raise questions that any judge should take seriously. They thus provide a basis for invoking the district court’s authority to “conduct investigations as necessary.”

DOJ argued in its brief that there is no Article III controversy here:

The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes. Exercising that Article II power here, the Executive filed a motion to dismiss the indictment, and petitioner consented. Despite that exercise of prosecutorial discretion, and the lack of any remaining Article III controversy between the parties, the district court failed to grant the motion and bring the case to a close. It instead appointed an amicus curiae to argue against dismissal and to consider additional criminal charges.

This Court should issue a writ of mandamus compelling dismissal. Federal Rule of Criminal Procedure 48(a) provides that “[t]he government may, with leave of court, dismiss an indictment.” That language does not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading of the Rule would violate both Article II and Article III. Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own. Instead of inviting further proceedings, the court should have granted the government’s motion to dismiss. And given the court’s infringement on the Executive’s performance of its constitutional duties, a writ of mandamus is appropriate, as this Court held in similar circumstances in United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016.)

The Monday filing from Sullivan and Wilkinson concluded by reiterating that the D.C. Circuit should “holster the ‘potent weapon’ of mandamus” and “allow Judge Sullivan to evaluate the government’s motion to dismiss in the first instance.”

You can read the full filing below.

This is a developing story.

US v FLYNN – Judge Sullivan… by Law&Crime on Scribd

[Image via Alex Wroblewski/Getty Images]

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Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.