The judge presiding over the Michael Flynn case is right to take a hard look at the Department of Justice’s eleventh-hour motion to dismiss the false statements charge to which Flynn has already pleaded guilty. Even if Judge Emmet Sullivan ultimately determines that he lacks the authority to continue the case through to sentencing, he can demand accountability and transparency from the Department of Justice, and that may be precisely what is required under the circumstances.

Judicial Authority to Scrutinize Prosecutorial Dismissal Requests

Usually, federal judges do not scrutinize prosecutors’ charging decisions. The decision whether to prosecute represents the zenith of prosecutorial discretion. There are both practical and institutional reasons why prosecutors’ charging decisions are effectively walled off from outside scrutiny. Prosecutors have unique access to information – both evidentiary and equitable – that informs decisions of whether to prosecute and how to balance priorities. Separation of powers concerns also dictate judicial deference to prosecutors’ charging decisions.

So too, federal judges generally do not scrutinize the adequacy of plea bargains. The federal rules governing criminal procedure and judicial precedents interpreting them make clear that judges have a very limited role to play when prosecutors and defendants reach agreement as to the proper disposition of a case. Previous decisions issued by Judge Sullivan and his peers on the district courts (including his newly appointed amicus curiae – John Gleeson, formerly a federal judge in Brooklyn) have pushed the boundaries of that role, but the federal courts of appeals have consistently reinforced those limits. The D.C. Circuit, the appellate court that will review any decision Judge Sullivan makes in the case, has been particularly strict in this regard.

When prosecutors seek to dismiss outright a charge that has previously been filed, the federal rules similarly provide very limited space for judicial scrutiny. But that is not the same thing as no space. The rules require that the prosecution first obtain “leave of court” – i.e., the judge’s approval. This represents a departure from the common law practice that preceded the enactment of the federal rules of criminal procedure, which permitted dismissals without leave of court. Indeed, in 1944, the United States Supreme Court inserted the leave of court requirement into the rule about dismissals before the rules were transmitted to Congress.

The federal rules do not provide a standard by which a judge is to measure the adequacy of the government’s reasons for seeking dismissal. However, a number of precedents hold that a judge may withhold approval when the government appears to be acting in “bad faith,” specifically seeking dismissal in order to harass or obtain unfair advantage over a defendant, such as by charging again at a later date. This is generally cited as the primary concern that motivated the requirement of judicial approval to dismiss.

Flynn’s case presents the opposite scenario. Rather than objecting to the dismissal, the defense joins in the request. In 1977, the United States Supreme Court expressly reserved judgment on whether courts have authority to refuse such joint applications in Rinaldi v. United States. Most circuits similarly have declined to address the question. But the right answer seems to be that courts do have that review authority, albeit in very limited circumstances. It would be bizarre for a rule requiring “leave of court” for all dismissals to be construed as making that leave entirely perfunctory when joined by the defense, without saying so expressly. To borrow a frequent device of statutory interpretation, if the drafters of the federal rules had intended to authorize judiciary scrutiny of dismissals only when they were opposed by the defense, they could have written the rule to so indicate. They did not. Indeed, Thomas Frampton persuasively argues that the rule’s drafters were very much concerned about dismissals to benefit politically-connected defendants.

In fact, there are precedents in which district courts have refused joint motions to dismiss. To a one, those decisions appear to have been reversed on appeal, even pursuant to the generous “abuse of discretion” standard by which such decisions are reviewed. But none of the reported appellate decisions foreclose the idea that district courts have the authority to review such motions. Moreover, the appellate opinions contemplate that there could be circumstances in which a district court would be within its discretion to withhold approval of an uncontested motion to dismiss. Not when the judge simply disagrees with the prosecutor’s decision, but when something nefarious is at work. And none of those opinions involved cases where the defendant already had pleaded guilty.

In Rinaldi, the same decision in which the Supreme Court declined to squarely address this issue, the Court nevertheless suggested that refusal would be appropriate where the prosecution’s motion to dismiss was “tainted with impropriety” and “motivated by considerations … ‘clearly contrary to manifest public interest.’” What would meet this high standard? As one judicial opinion suggested, a dismissal motivated by a prosecutor’s acceptance of a bribe, desire to attend a social event rather than trial, or dislike for the victim of a crime would justify a judge’s denial of leave to dismiss.

Ordinarily, a prosecutor’s motion to dismiss is entitled to a presumption of regularity – especially when the motion is supported by the defense – and no judicial inquiry into whether the dismissal is in the public interest is warranted. For example, in the run of the mill case where, as part of a plea bargain, a prosecutor moves to dismiss certain open charges as a condition of the defendant’s agreement to enter a guilty plea to others, judges grant such motions without any inquiry. But when there are non-speculative reasons for concerns about the prosecutor’s motivations, the presumption of regularity is overcome.

The Abundant Indicia of Impropriety in the Flynn Case

In the Flynn case, such red flags are abundant. To begin, there are concrete reasons for concern about improper political influence. Flynn was a close associate of the current President of the United States, who has repeatedly weighed in on the case, both publicly and privately with the Department of Justice. Many of the President’s other closest political associates were subjects of related aspects of the investigation, which involved Russian interference in the 2016 election and allegations of coordination between Russian agents and the Trump campaign. For these reasons, the President’s first Attorney General, Jeff Sessions, who was himself a potential subject of the investigation, recused himself from overseeing the matter and the Department of Justice ultimately appointed a special counsel, Robert Mueller, to oversee it. Mueller’s team brought the false statements charge against Flynn that Sessions’ replacement, William Barr, now seeks to dismiss.

Although incoming prosecutors do sometimes revisit the charging decisions of their predecessors, what makes this case so unusual is that Barr is overriding the charging decision of a special counsel, appointed expressly to assuage concerns about political influence. The larger context of Barr’s reversal of decisions reached by the Special Counsel’s team – for example in the sentencing recommendation for Roger Stone – exacerbates this concern. That none of the members of the Special Counsel’s team signed the motion to dismiss – nor indeed any non-political appointee – also should set off warning bells. As if that were not enough, the last member of the Special Counsel’s team who was still working on the Flynn case withdrew from it just before the motion to dismiss was filed. Prosecutors do not withdraw from cases or refuse to sign memoranda simply because they disagree with the wisdom of a particular decision their superiors have reached.

In addition, the fact that Flynn pleaded guilty to the crime that he and the Department of Justice now say never occurred makes this case highly unusual. Dismissals do sometimes occur after a guilty plea has been entered, but normally not because (without any intervening change in the law) both parties have suddenly decided that there was no crime (unless, of course compelling fresh evidence comes to light, which is not the case here). Instead, such pleas may be set aside because the prosecution agrees with the defense that the punishment is too severe or other consequences (such as deportation) would not be in the public interest. The rarity of motions to dismiss convictions based upon guilty pleas is attributable in part to the requirement in federal court that a judge can only accept a plea if the court finds that there is an adequate factual basis to support it. That requirement helps protect defendants from succumbing to pressure to plead guilty to crimes of which they are factually innocent and courts from being complicit in such distortions of justice.

As additional protections against distortion of the truth, defendants’ factual “allocutions” at their guilty pleas, as they are called in federal court, setting forth the basis for defendants’ belief that they are guilty, are made under oath, under penalty of perjury, with defense counsel present. In this case, Michael Flynn, assisted by very able defense counsel, affirmed under penalty of perjury that he willfully lied to federal agents. In fact, he did so twice, because Judge Sullivan gave Flynn the opportunity to reconsider his guilty plea when his case was transferred from another judge. But now the Department of Justice effectively argues that Flynn committed perjury at his guilty plea proceedings, without seeking any redress for it.

The red flags continue. For example, the Department of Justice’s recent filing misstates the legal definition of “materiality,” one of the elements that must be shown about a defendant’s lies to federal agents before they can provide the basis for a false statements conviction. In support of its proposed definition, which is friendly to Flynn, the Department relies primarily on a 1956 case rather than subsequent cases that have clarified the materiality standard in ways that support Flynn’s guilt (and which Judge Sullivan relied upon in finding Flynn’s lies material at his guilty plea). And according to witnesses, such as Mary McCord, upon whom the Department relies in its motion to dismiss, the Department has not accurately conveyed the substance of their statements or historical facts.

Such real-time objections by witnesses to the characterization of their testimony by the Department of Justice is extraordinary. Combined with the government’s facile approach to the law and the abundant indicia of political interference, the court has ample reason not to accept the Department’s recommendation at face value, but instead to inquire further into whether the motion to dismiss is “tainted with impropriety” or “motivated by considerations … ‘clearly contrary to manifest public interest.’” Given the amount of investigative information that the Department of Justice has already released in the case, any additional intrusion of such an inquiry into ongoing confidentiality interests would seem to be minimal.

Conclusion: Process as Justice?

At the end of the day, Judge Sullivan may find that the circumstances of the dismissal are not extraordinary enough to justify his refusal to grant it. But that does not mean that the inquiry in and of itself is not valuable. In our system of checks and balances, sometimes the primary check on one branch’s abuse of power lies not in another branch’s authority to usurp that power, but simply in its authority to call that other branch to account.

Image – Former White House National Security Advisor Michael Flynn leaves the Prettyman Federal Courthouse following a sentencing hearing in U.S. District Court December 18, 2018 in Washington, DC. (Photo by Chip Somodevilla/Getty Images).