Judge Sullivan Chooses Option #5 in the Michael Flynn Case

May 18, 2020

Three Closed Doors in the Room

By Sara Kropf

A few weeks ago, I suggested that there were four options for Judge Emmet Sullivan related to the government’s motion to dismiss the charges against Michael Flynn. At the end of the post, a little tongue in cheek, I noted that “[m]aybe, in his wisdom, he’ll figure out Option #5 to solve all of these problems.”

Turns out, that’s what Judge Sullivan did—sort of.

On May 13, 2020, Judge Sullivan appointed an amicus curiae (friend of the court) to do two things.

First, the amicus will “present arguments in opposition to the government’s Motion to Dismiss.”

Second, the amicus will “address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.”

Judge Gleeson Is Not a Blank Page

Judge Sullivan appointed retired Judge John Gleeson to act as amicus. Maybe this should come as little surprise since Judge Gleeson co-authored an opinion piece in the Washington Post just two days earlier. In that piece, he suggested that Judge Sullivan could appoint an amicus.

He also made his views of the motion to dismiss quite plain:

Prosecutors deserve a “presumption of regularity” — the benefit of the doubt that they are acting honestly and following the rules. But when the facts suggest they have abused their power, that presumption fades. If prosecutors attempt to dismiss a well-founded prosecution for impermissible or corrupt reasons, the people would be ill-served if a court blindly approved their dismissal request. The independence of the court protects us all when executive-branch decisions smack of impropriety; it also protects the judiciary itself from becoming a party to corruption.

There has been nothing regular about the department’s effort to dismiss the Flynn case. The record reeks of improper political influence.

Judge Gleeson is 100% right about the appearance of political influence here. It’s inescapable. Like so many events in this particular administration, well-meaning government actors must decide how to react when confronted with naked subversion of the rules and norms of conduct.

Should they (a) follow the rules that likely allow the (mis)conduct to continue, or (b) stretch the rules to try to stop it?

That’s not an easy choice. When one judge stretches the rules to reach the “right” outcome in a particular situation, it gives other judges some level of permission to stretch the rules again. And maybe the next time will not be such a clear-cut example of political corruption. That’s a dangerous slippery slope.

Case Law Makes the Denial of DOJ’s Motion to Dismiss Nearly Impossible

The case law may be the saving grace here, forcing Judge Sullivan’s hand to dismiss the case. He cited United States v. Fokker Services, a 2016 D.C. Circuit case.

In Fokker Services, district court Judge Richard Leon refused to approval a deferred prosecution agreement (DPA), agreed to by the government and the defense. Judge Leon thought the terms of the DPA were too lenient. The D.C. Circuit reversed.

Here are the first two sentences of the opinion:

The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought.

It goes on to say

For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant’s alleged conduct. . . . The authority to make such determinations remains with the Executive.

That said, Fokker is potentially distinguishable.

First, it arose in the context of an issue related to Speedy Trial Act concerns for a DPA context–a very different situation than a guilty plea.

Second, the judge’s concern with the DPA in Fokker was that it was too lenient given the proven conduct, not that it was the result of political corruption. In fact, the Fokker decision points out that a court “has authority to reject a DPA if it contains illegal or unethical provisions.”

If the dismissal of charges against Flynn is illegal or unethical because it is an effort to benefit the friend of the president, then perhaps Judge Sullivan has the discretion to deny it, even in light of Fokker‘s holding. But, presumably, he’d need evidence of that illegality or unethical conduct, not just his own suppositions. That points to the need for a hearing and forcing DOJ to expose its inner workings creates a different bucket of problems.

Possible Criminal Contempt Charges

But Judge Sullivan is not going to make this easy on Flynn, even if he does decide to dismiss the charges.

His second job for Judge Gleeson is to evaluate whether Judge Sullivan is able to hold Flynn in criminal contempt under 18 U.S.C. § 401. That statute provides a court with the power to “punish by fine or imprisonment, or both, at its discretion, such contempt of its authority” if there is “[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice” or “[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.” (There is also a third category for misconduct by an officer of the court, which is not relevant here.)

In theory, Judge Sullivan could grant the motion to dismiss and then hold Flynn in contempt of court and sentence him to the same 6 months recommended by DOJ in January (or to a longer or shorter sentence). Holding someone in criminal contempt is not easy—it requires proof of criminal intent.

No Accident

The choice of Judge Gleeson as amicus is no accident. Judge Sullivan no doubt appointed Judge Gleeson because if Judge Gleeson says he can dismiss the case—the same Judge Gleeson who says this case “reeks of improper political influence”—then he has some cover to do so.

But Mr. Flynn is still exposed on the possible contempt charges.

Stay tuned. This case is far from over.

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