Four Remarkable Arguments in DOJ’s Latest Brief in the Michael Flynn Case [UPDATED with links to reply/response briefs]

A couple of weeks ago, I published a very long, comprehensive post in which I tried to explain all the ins and outs of the Michael Flynn case, from 2016 to the present day.  Since then, there have been two significant developments: (i) the Government released redacted transcripts (or summaries) of all but one of Flynn’s calls with Russian Ambassador Kislyak in December 2016; and (ii) Judge Sullivan and the Department of Justice filed opening briefs in response to Flynn’s petition for mandamus to the U.S. Court of Appeals for the D.C. Circuit (in which Flynn is asking the court of appeals to order Judge Emmet Sullivan to “immediately” grant DOJ’s motion for leave to dismiss the criminal charge against Flynn).

The primary purpose of this post is to examine some of the arguments DOJ offers in support of its conclusion that the court of appeals should order Judge Sullivan to grant the motion to dismiss—weeks before the judge even hears argument on the motion.  Before getting to that, however, a few thoughts are in order about the Flynn/Kislyak transcripts—or, more precisely, about the reactions to the those transcripts.

Unsurprisingly, the transcripts immediately became a Rorschach test of sorts that exemplifies a huge and apparently unbridgeable disconnect between the way that Trump/Flynn supporters and the Attorney General see the case and the way the vast majority of current and former law enforcement, intelligence, and diplomatic officials see it.  The latter are very alarmed (as am I) by the Flynn/Kislyak calls—especially the call on December 29, 2016.  They believe that those calls obviously warranted the grave concerns of the law enforcement and intelligence officials who learned of them in early 2017, and that it would have been absurd for the FBI to close its investigation of Flynn—derelict, even—once it learned of the calls.  The former observers, by contrast, agree with Attorney General Barr that the calls were “perfectly legitimate and appropriate,” even “laudable.”

I’ve updated my earlier post to reflect the text of the transcripts and to offer some speculation about why there’s so little common ground today about the Kislyak calls.  Here’s an excerpt:

We know now that Trump (at best) didn’t care about Russia’s election interference—after all, he’s said so repeatedly for three-plus years.  And if that’s your baseline understanding–that of course Trump wasn’t troubled by the cyber-operations and therefore would naturally have been trying to stymie the effects of Obama’s sanctions–then your reaction to the Kislyak call is likely to be one of nonchalance, e.g., “That’s Trump:  What’d you expect?”

But consider how this call looked to intelligence and diplomatic officials on December 29, 2016, just after they had learned of Russia’s interference in the election and just hours after President Obama had imposed dramatic sanctions on Russia in response.  It was unlike anything they’d ever seen before and was deeply alarming.  As David Corn writes:

At no point does Flynn castigate Kislyak for Russia’s intervention in the 2016 election.  He does not confront the Russian ambassador for Putin’s covert operation to subvert American democracy.  He does not tell Kislyak that Moscow will have to pay a price for hacking the Democrats and using the stolen information to influence the election for Trump’s benefit.  Flynn, a former head of the Defense Intelligence Agency, does not warn Kislyak against any further Russian information warfare targeting the United States.  As the Obama administration was trying to impose a punishment on Putin for that attack, Flynn, on behalf of the Trump gang, was sending an utterly different message:  We don’t care about that.

Think about this perverse set of interactions: the incoming national security adviser was essentially telling a foreign adversary that the new president wasn’t concerned about an attack on the United States and, moreover, indicating that Trump didn’t intend to do anything about it.  In fact, Flynn was signaling to Putin that once Trump took office, Trump wouldn’t be pursuing the matter and, instead, would be reaching out to Russia as a partner.  (A few months later, Trump, in the Oval Office, would tell Kislyak that directly.) . . .

He was dealing with the Russians as if there had been no attack.

(Mark Mazzetti’s analysis of the Kislyak call is also must-reading.)

The idea that the incoming President of the United States and/or his National Security Advisor would be (at best) so indifferent to Russia’s interference in the 2016 election—in secret, with the Russian Ambassador—might be old news now, but back then it was virtually unthinkable.  That’s why Flynn’s calls were so shocking, and easily justified DOJ’s and the FBI’s concerns and the latter’s decision not to close its Flynn investigation.  Quite simply, it was imperative to figure out why an incoming National Security Advisor would do such a thing and whether, in particular, he or the President were in any way compromised by Russia.  (And then the concerns only became more acute when, several days later, incoming officials, including Vice-President-Elect Pence, began to insist publicly that Flynn and Kislyak hadn’t discussed sanctions—something they presumably wouldn’t have done if those conversations were as benign and unexceptional as the Attorney General would now have it.)

If, like Trump and Barr, you think that the Russian interference was no big deal—business as usual—and that the real threat to the Republic was the government’s response to Russia’s efforts and to the Trump campaign’s pervasive interactions with, and encouragement of, those efforts, then of course the Kislyak calls will appear to be appropriate or laudable.  But if, on the other hand, you agree with the uniform conclusions of, e.g., the Intelligence Community, the Mueller Report, and the Senate Intelligence Committee, that Russia’s involvement in our election was a profound threat to our institutions, and that the Trump campaign’s eagerness to encourage that involvement was beyond the pale, then the Kislyak calls will look rather different.

* * * *

I’ll proceed now to examine DOJ’s opening brief on Flynn’s mandamus petition.  Before I do so, however, it’s important to reiterate something I stressed in my earlier, longer post—namely, that the current contretemps about whether Judge Sullivan should, or must, allow DOJ to dismiss the charge against Flynn is insignificant in the grand scheme of things.  If and when that charge is dismissed—which will likely happen sooner or later—Attorney General Barr and others will undoubtedly point to that result, just as they’ve pointed to the Kisyak calls themselves, as evidence that the conduct of the Trump campaign and the Trump transition with respect to Russia was unexceptionable and appropriate (“laudable,” even), and that therefore the continued investigation of Flynn in January 2017 and beyond was unjustified and can only be explained as a “witch hunt” against the incoming President.  That narrative will inevitably have traction with Trump’s supporters. But as I tried to explain in my earlier piece, it’s fairly preposterous and you shouldn’t be taken in by it.  Flynn’s conduct was deeply aberrant and inimical to the national interest. It fully justified the profound concerns of the law enforcement and national security communities within the government, and it was altogether proper for officials such as Barack Obama, Sally Yates and Don McGahn to be alarmed and to respond as they did when they discovered what Flynn had done.

* * * *

To briefly refresh your recollection of where we are in the litigation:

In August 2016, as part of the larger “Crossfire Hurricane” investigation into Russia’s efforts to interfere in the 2016 presidential campaign (and into possible involvement by persons in the Trump campaign), the FBI opened an investigation into whether Michael Flynn might have been wittingly or unwittingly involved in a way that could have created a threat to the national security.  Although the Bureau apparently was going to close that Flynn-specific investigation at the beginning of January 2017, the discovery of the alarming Kislyak calls prompted further inquiries.  Acting Attorney General Yates brought the calls to the attention of White House Counsel McGahn, and shortly thereafter President Trump appropriately asked Flynn to resign his post as National Security Advisor after less than four weeks in office.

In August 2017, Acting Attorney General Rosenstein authorized Special Counsel Robert Mueller to investigate four categories of allegations about Flynn: (i) that he committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition; (ii) that he committed a crime or crimes by making false statements to the FBI when interviewed about his contacts with the Russian government; (iii) that he committed a crime or crimes by failing to report foreign contacts and income on a Form SF-86 that he completed in anticipation of his being selected to serve as the National Security Adviser to President Trump; and (iv) that he committed a crime or crimes by acting as an unregistered agent for the government of Turkey.

A few months later, after further investigation by Mueller, Flynn formally attested both that he violated 18 U.S.C. § 1001(a)(2) by making deliberate, material false statements to the FBI in January 2017, and, more importantly, that in March 2017 he violated the Foreign Agents Registration Act (“FARA”) by making several materially false statements and omissions in documents he filed with DOJ regarding a project in which he was involved for the principal benefit of the Republic of Turkey.  The Department of Justice didn’t charge Flynn with the FARA violations, presumably because of his cooperation with the larger investigation, but Flynn did plead guilty—twice—to a single § 1001(a)(2) count of making materially false statements to the FBI on January 24, 2017.  All that remains in the case is for Judge Sullivan to sentence Flynn on that count and to enter a judgment of conviction against him.

All of a sudden, however, on May 7, the Barr Justice Department moved to dismiss the charge against Flynn, something it can only do with leave of the court.  Judge Sullivan has scheduled a July 16 oral argument on DOJ’s motion.  I discuss the merits of DOJ’s motion, and the options available to Judge Sullivan, in the final two sections (17 and 18) of my earlier post.  In the meantime, Flynn has tried to pretermit the proceedings before Judge Sullivan by filing a writ of mandamus in the U.S. Court of Appeals for the D.C. Circuit, asking that court to order Judge Sullivan to “immediately” grant DOJ’s motion to dismiss the charge.  The D.C. Circuit panel (Judges Henderson, Wilkins and Rao) ordered Judge Sullivan himself to file a response to that petition, which he did last Monday.  DOJ also filed a brief, signed by no less than the Solicitor General, two of his four Deputies, and the head of the DOJ Criminal Division.  All three parties have the opportunity to file responsive briefs tomorrow (Wednesday), and the panel will hear argument on the petition Friday morning.  [UPDATE, Wednesday, June 10:  Here are Judge Sullivan’s response; the SG’s reply; and Flynn’s reply.]

* * * *

In his [opening] brief, Judge Sullivan argues that the court of appeals should deny the mandamus petition, predominantly because he hasn’t even yet ruled on DOJ’s motion to dismiss the charge.

DOJ, by contrast, contends that the court of appeals should grant Flynn’s mandamus petition.  There are several noteworthy things about the DOJ brief.   One of them is a (relatively) welcome development:  Unlike DOJ’s motion to dismiss itself, the new brief does not assert—not expressly, anyway—that Flynn’s calls with Kislyak “were entirely appropriate on their face” and that there wasn’t any “legitimate” basis for a counterintelligence investigation of Flynn.  (See Point 3 of my post.)  In several other respects, however, the DOJ brief is deeply problematic.  I’ll discuss four of those here.

  1. DOJ’s “Argument” for Mandamus.

DOJ spends most of its brief explaining why Judge Sullivan should grant the motion for leave to dismiss the charge.  (I discuss those arguments in the next three sections of this post.)  But even if they were right about that, it wouldn’t explain why the court of appeals should prematurely grant an extraordinary writ of mandamus directing the district court to grant the government’s motion to dismiss the indictment.  After all, as DOJ itself explains, mandamus is a “drastic and extraordinary remedy,” one the appellate court shouldn’t grant unless, at a minimum, the petitioner has “no other adequate means to attain the relief he desires” and demonstrates that “his right to issuance of the writ is clear and indisputable.”

Remarkably, DOJ doesn’t even purport to address why that heightened standard is met here until the final paragraph of its 34-page brief, and that paragraph doesn’t even begin to offer a reason why Flynn has satisfied those criteria.  DOJ notes that courts of appeals in two other cases (including the D.C. Circuit in United States v. Fokker Servs. B.V., 818 F.3d 733 (D.C. Cir. 2016)) have granted writs of mandamus compelling district courts to grant unopposed motions to dismiss charges.  In those two cases, however, the trial court had already denied the motions to dismiss and it was the government that sought writs of mandamus to require the judges to reverse those decisions.  Here, by contrast, Judge Sullivan hasn’t even ruled on the motion to dismiss yet, and thus we don’t know whether there’ll ever be an occasion for the court of appeals to review a denial of the motion.  Moreover, even if Judge Sullivan did deny the government’s motion after his scheduled oral argument in July, Fokker Services explains that that wouldn’t justify a writ of mandamus filed by Flynn, because he could simply challenge the court’s ruling on appeal from his judgment of conviction.  818 F.3d at 748.  As Judge Henderson (a member of the panel in the Flynn case) admonished in a recent case, the writ of mandamus must not “be used as a substitute for the regular appeals process. . . . .  ‘The general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary remedy, may not be done with it.’  Mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.”  In re al-Nashiri, 791 F.3d 71, 78 (D.C. Cir. 2015) (quoting Ex parte Rowland, 104 U.S. 604, 617 (1881)) (other internal citations omitted).  (See also Judge Sullivan’s brief at pages 18-21.)

DOJ’s brief literally says nothing about why Flynn lacks “other adequate means to attain the relief he desires”; nor does it offer a word about how Flynn might have met his burden of demonstrating a “clear and indisputable” right to the writ when it’s not yet known whether Judge Sullivan will grant the motion.  Instead, all that DOJ offers is a vague reference to “the threat of intrusive judicial proceedings” in the case, including “potentially even evidentiary proceedings” that might examine why the government has moved to dismiss the charge.  But that’s not a reason to grant Flynn’s petition, for three obvious reasons.  First, Judge Sullivan hasn’t yet ordered any “intrusive” inquiries into DOJ’s decision-making process—and he might not ever do so.  Second, if and when the court order such discovery, that might offer the government a basis for a mandamus petition—but not Flynn.  And third, such a petition would necessarily be limited to a request for a writ that would restrict the breadth of the court’s evidentiary inquiry, not one that would require the court to grant the motion to dismiss itself.  [UPDATE:  In his reply brief, the SG spends several pages offering additional reasons why mandamus is permissible and appropriate here.  I don’t find them at all persuasive, but readers can make up their own minds.  I’ll only mention that it includes what must be the all-time silliest DOJ citation to Hamilton’s famous statement in Federalist 70 that the proceedings of a unitary president are “generally characterize[d]” by “Decision, activity, secrecy, and despatch.”  The SG actually cites this old chestnut, oft-embraced by DOJ, as a basis for issuing the writ of mandamus now, rather than waiting to see what Judge Sullivan does with the motion to dismiss after the July 16 oral argument.]

Whatever one thinks about what Judge Sullivan should or shouldn’t do with the motion to dismiss itself, there’s no basis at all for a writ of mandamus requiring him to grant it.  Indeed, I’d wager that no court of appeals has ever granted a writ of mandamus in these circumstances, or anything like them, on behalf of a criminal defendant who’d have an opportunity for appeal immediately upon judgment.  The experienced counsel on DOJ’s brief know full well that the court of appeals has no business granting the writ here.  Therefore it’s rather shocking that they would write otherwise, and offer no basis for their conclusion.

  1. DOJ’s Argument that Rule 48(a) is Unconstitutional as Applied to a Case Such as This One.

Let’s turn now to the gist of DOJ’s brief, which isn’t about mandamus but instead about what Judge Sullivan arguably must do with the motion to dismiss the Flynn charge itself.

Rule 48(a) of the Federal Rules of Criminal Procedure provides that “[t]he government may, with leave of court, dismiss an . . . information.”  The DOJ motion asks Judge Sullivan for the required “leave of court.”  As I explained in the final section of my earlier post, Judge Sullivan’s power to deny such leave is, for good reasons, very limited in a case where the defendant and the government agree that the motion to dismiss should be granted.  Rule 48(a) doesn’t afford a court the power to deny leave to dismiss a charge based simply on the judge’s personal view “that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges,”  Fokker Servs. 818 F.3d at 742, or “on the ground that the prosecution has been too lenient,” id. at 746.  The Supreme Court has indicated that a district court can deny leave to dismiss a charge in such a case only where the prosecution is acting in “bad faith” or was “motivated by considerations” that were “‘clearly contrary to manifest public interest,’” Rinaldi v. United States, 434 U.S. 22, 30 (1977)—a demanding standard, as it ought to be.

The Solicitor General apparently isn’t satisfied with that very generous standard, however.  In Part I (pp. 12-19) of his new filing in the court of appeals, he makes a fairly astonishing, novel argument that DOJ didn’t offer in the district court—namely, that where the defendant doesn’t contest the government’s motion to dismiss, it’d be unconstitutional for a court to deny a motion for leave to dismiss a charge.  This new argument is based upon two propositions:  (i) that “‘neither the Judicial nor Legislative Branches may directly interfere with the prosecutorial discretion of the Executive by directing the Executive Branch to prosecute particular individuals’” (quoting In re Aiken County, 725 F.3d 255, 263 (D.C. Cir. 2013)); and (ii) that where the prosecutor and defendant agree that charges should be dismissed, there’s no longer an Article III case or controversy for the court to adjudicate.

There are several problems with those predicate propositions, including the following.  (These are only summaries of the possible objections:  I realize that others may disagree on some or all of them, but it would require much more space than I have here to elaborate upon them in detail.)

— In at least some circumstances and certain respects, Congress can assign prosecutorial functions to persons outside the executive branch (which isn’t happening here, of course, but DOJ’s argument depends on the idea that the Executive branch must have illimitable control over prosecution decisions).  Early in the Republic, for example, private parties commonly had a role in presenting evidence of crimes to grand juries; and grand juries themselves obviously have a gatekeeping function with respect to charging decisions.  Furthermore, both Congress and the courts can prosecute contempt charges under certain circumstances.

— Congress may also control the Executive’s prosecutorial discretion, such as by requiring presentation of charges in certain circumstances where the Executive officer in question agrees that the individual in question has committed all the elements of the offense and there’s admissible evidence that would support a guilty verdict.

— In any event, even if it were the case that the other two branches could not “direct” Executive officials to take affirmative steps to prosecute in cases where the evidence would support it, the motion to dismiss in the Flynn case doesn’t implicate the traditional trial functions that DOJ prosecutors regularly perform.  If Judge Sullivan were to deny the motion, that wouldn’t require Executive branch lawyers to take any affirmative steps to continue prosecuting the case:  Their job is finished, and all that remains before entry of judgment is the judge’s own imposition of sentence.  Obviously, the Constitution gives judges the authority to sentence defendants and to enter judgments of conviction against them.

— The fact that a prosecutor and a defendant are in accord on how a case should be resolved does not mean that there’s no longer a case or controversy “between the parties,” as DOJ asserts.  The Department of Justice is not the party opposed to the defendant—the United States is.  And when it comes to criminal prosecution, the United States is not coterminous with the Executive branch:  The grand jury, the trial jury, and the judge, along with the Department of Justice, all play roles on behalf of the United States, and their respective functions have a significant, often determinative, impact on whether the individual’s liberty will be infringed.  Criminal prosecution thus is, in a sense, a collaborative endeavor; unlike in some civil contexts, the Executive branch cannot single-handedly execute the criminal law.  (See more from Peter Shane here on why “[t]he idea that federal prosecution is exclusively an executive-branch concern is not accurate.”)  That explains, in part, why an Article III case does not come to an end when the prosecutor and a defendant reach a plea agreement, see Fed. R. Crim. P. 11(c)(3)(A), (5), nor when a prosecutor confesses error.  In both cases, a court’s approval remains necessary, and if the court doesn’t concur, the case continues.

Wholly apart from (and perhaps more important than) these possible weaknesses in DOJ’s predicate assumptions about executive control of criminal prosecution, however, its newly advanced view—that it would be unconstitutional for a court to deny leave to dismiss when the prosecution and defendant are in accord—is inconsistent with the Supreme Court’s own understanding when it promulgated (what’s now) Rule 48(a) in 1944.  The Court deliberately insisted on affording the judge the power to deny the prosecution’s motion to dismiss a charge.  In earlier comments to the advisory committee, the Court explained its concern by citing as an analogy a then-recent case in which the Court affirmed the power of a court to reject a prosecutor’s confession of error in order to ensure that the criminal proceeding protects the “public interest” in “promot[ing] a well-ordered society.”  Young v. United States, 315 U.S. 257, 259 (1942).  “[T]he proper administration of the criminal law,” the Court wrote in that case, “cannot be left merely to the stipulation of parties.”  Id.

Not surprisingly, then, both the Supreme Court itself and the D.C. Circuit have indicated that the trial court does have some authority—albeit very circumscribed—to deny a prosecutor’s motion to dismiss, even where the defendant concurs in the motion.  DOJ quotes Fokker Services to the effect that “[t]he Constitution allocates primacy in criminal charging decisions to the Executive Branch” and that “the Judiciary generally lacks authority to second-guess those Executive determinations.”  818 F.3d at 737.  But “primacy” isn’t the same thing as exclusivity, and the fact that a trial court “generally” may not reject a decision to dismiss a charge doesn’t mean that it may never do so—to the contrary, the adverb connotes that there are exceptions to the “general” rule.  Thus, for example, the court of appeals in Fokker signaled that a court could deny a motion to dismiss a charge if there were “clear evidence” that the prosecutors had failed to “properly discharge[] their official duties,” id. at 741; and the Supreme Court in Rinaldi asked whether the record there disclosed prosecutorial “bad faith,” or evidence that the motion to dismiss was otherwise “tainted with impropriety.”  434 U.S. at 30.

DOJ’s brief doesn’t mention these parts of Fokker and Rinaldi, nor does it even bother to contend with the Supreme Court’s own suggestion in 1942—reflected in its promulgation of the Federal Rule of Procedure in question two years later—that it’d be appropriate in rare cases for a court to deny a prosecutor’s motion to dismiss in order to protect the “public interest.”[1]  Its new, proposed constitutional limitation on Rule 42(a) therefore is unlikely to carry the day.  But don’t be surprised if one or more judges on the D.C. Circuit panel–and, eventually, in this or another case, if one or more Justices on the Supreme Court–accept the argument of a more categorical constitutional limitation.

  1. DOJ’s Argument That Judge Sullivan Should Grant Its Motion to Dismiss Because Convicting Flynn Allegedly Wouldn’t “Serve the Interests of Justice” in Light of FBI Misfeasance.

DOJ also argues, in the alternative, that even if Rule 48(a) affords Judge Sullivan some authority to deny a motion to dismiss in some rare cases, he must grant the motion in Flynn’s case because it’s predicated on legitimate considerations rather than on “bad faith.”  DOJ asserts two primary justifications for its motion.

First, DOJ claims it has determined “that continued prosecution of the case would not serve the interests of justice” because “record materials could be taken to suggest that the FBI was eager to interview [Flynn on January 24, 2017] irrespective of any underlying investigation and that the interview was undertaken predominantly to elicit those very false statements and thereby criminalize [Flynn].”

I’ve already explained (see Point 9) that I think FBI Director Comey acted wrongly and indefensibly in sending agents to interview the new National Security Advisor without the approval of the Acting Attorney General, Sally Yates.  Yates had repeatedly told Comey that she thought—correctly—that the first order of business was to inform the President, through the White House Counsel, of the Flynn/Kislyak communications, about which Flynn apparently had lied to several incoming officials, including the Vice President.  Comey deliberately and insubordinately circumvented Yates.

Nevertheless, I’ve also explained (see Point 10) why I don’t think it’s plausible that Comey sent the agents to interview Flynn “predominantly to elicit … false statements and thereby criminalize [Flynn]”; and it’s absurd to suggest he did so “irrespective of any underlying investigation.”  Moreover, even if DOJ is now troubled by how the Bureau handled the interview underlying the § 1001(a)(2) charge against Flynn, DOJ doesn’t ordinarily—not ever, in fact—dismiss § 1001 charges when they were the product of a “perjury trap.”  And it certainly never does so where, as here, the defendant has pleaded guilty to a § 1001 offense in order to avoid trial on other charges.  Surely the “interests of justice” here also include something DOJ doesn’t even mention in its new brief—namely, that Flynn committed a much more troubling offense when he made false statements and material omissions in his FARA filings in March 2017.  Special Counsel Mueller presumably didn’t charge Flynn with that crime because of Flynn’s cooperation and because Flynn agreed to plead guilty to the § 1001(a)(2) offense; but Flynn did effectively admit to violating FARA.  Dismissing the § 1001(a)(2) charge would allow him to get away with that violation scot-free.

For these reasons, it seems rather incredible to believe that DOJ’s decision to dismiss the charge after Flynn had twice pleaded guilty to it can be explained by its suspicion that the January 24, 2017 interview might have been a “perjury trap.”  Nevertheless, unless Judge Sullivan makes a determination that it’s clearly pretextual, that explanation might be legally sufficient to support the motion to dismiss.

  1. DOJ’s Argument that Dismissal is Required Because it “No Longer Believes it Could Secure a Conviction at Trial.”

DOJ’s second explanation for its motion to dismiss is that it allegedly “no longer believes it could secure a conviction at trial.”  It asserts both (i) that “[a]fter comprehensive review, the government was … concerned that it would be unable to prove beyond a reasonable doubt that petitioner willfully made false statements”; and (ii) that it has “concern specifically about its ability to prove [the] materiality” of those false statements.

As for the former, I’ve already written that “[t]his aspect of the DOJ argument is virtually frivolous” because even if DOJ had to present the case to a jury, Flynn’s own repeated acknowledgements that he willfully lied—acknowledgments in his interviews with the Mueller investigators, in his attestation to the Statement of Offense, and in his plea agreement and plea allocutions—“would itself make this just about the easiest case imaginable to prove that fact,” and because, in any event, “the evidence is overwhelming—indeed, incontrovertible—that Flynn knew he was lying to the FBI about both sets of Kislyak calls.”  (See my Point 11 for a brief description of that evidence.)

And as for materiality, DOJ now argues that there’s “substantial evidence” that Flynn’s false statements were not “significant” to the FBI investigation and that it doubts “whether it should attempt to prove to a jury that the information was … objectively significant” in light of the fact that the FBI eventually concluded Flynn wasn’t a Russian agent.  Even if that were true, however, it’d be a non sequitur, because, as the Solicitor General and the other counsel on the brief surely know, DOJ wouldn’t have to prove that the false statements were “objectively significant” to the FBI investigation.  As DOJ has repeatedly and successfully argued in § 1001 cases, it would only have to prove that those statements either had a “natural tendency” to influence the investigation or that they were “capable of influencing” an FBI decision”—a modest showing that the prosecution could easily satisfy here.  (See subpart (iii) of Point 17.)

More importantly, however, this particular argument is premised on an assertion that’s palpably misleading.  As the case stands now, DOJ wouldn’t have to prove Flynn’s guilt to a jury, because he’s (twice) pleaded guilty to the offense.  Alarmingly, DOJ now insists that that’s immaterial because “[a]lthough petitioner previously pleaded guilty, it is Justice Department policy that prosecutions should not be initiated—and thus should not be continued—“unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact” (citing Justice Manual § 9-27.200 cmt. (sic)).

There is no such “Justice Department policy.”  What the comment to section 9-27.220 (not 27.200) of the Justice Manual says is that a government attorney should only “commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction.”  That same standard doesn’t apply to the question of whether DOJ should continue prosecuting an offense after its secured a guilty plea.  [UPDATE:  To be clear, of course DOJ should dismiss a charge, even after a plea, if it comes to believe the defendant didn’t commit the offense.  But that’s not DOJ’s argument here:  It’s arguing, instead, that it should withdraw a valid charge to which the defendant has pleaded guilty because it believes there’d be trouble securing a conviction if the case went to trial.  There’s no DOJ policy requiring that.]  Common hypotheticals make this very clear.  For example, DOJ will frequently secure a plea to an offense it couldn’t prove at trial as part of a deal to drop a harsher charge that it could prove.  Or imagine, for instance, that the government brings a terrorism prosecution and the only eyewitness dies, or is discovered to have credibility problems, after the defendant pleads guilty, thereby rendering the case unprovable to a jury.  No one, least of all a DOJ prosecutor, would say that any DOJ “policy” requires dismissal in such a case.  Or suppose the government secures a confession and incriminating details from a defendant based largely upon DNA evidence, yet after he pleads guilty the lab messes up the evidence and therefore wouldn’t be able to rule out cross-contamination at trial.  Should the prosecutor therefore move to dismiss the charge to which he pleaded guilty?  Does DOJ “policy” require such a result, which would fundamentally transform federal prosecutorial practices?

Of course not.  The assertion to the contrary in DOJ’s brief is simply indefensible.

* * * *

            I’ll update this post if anything in the reply briefs or oral argument, later this week, warrants it.

_______________________________

[1] Even DOJ acknowledges that a court could deny a motion to dismiss if there were proof that the prosecutor was acting for unconstitutional reasons (“for example, the government may not make its prosecutorial decisions on racially discriminatory grounds”).  That concession alone undermines DOJ’s argument that denying such a motion would violate Articles II and III.  And, in any event, there’s a lurking possibility in this very case that the Attorney General might have decided to move to withdraw the charge against Flynn for a constitutionally prohibited reason (namely, to advance the President’s political prospects), although, as I wrote at the end of my earlier post, I suspect that something different might be afoot.

Image: Alex Wroblewski/Getty; Alex Wong/Getty; Mark Wilson/Getty

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. Member of the editorial board of Just Security. You can follow him on Twitter (@marty_lederman).