Judge Sullivan Has Four Options for the Motion to Dismiss the Michael Flynn Charges – Which Is the Best One?

Three Closed Doors in the RoomBy Sara Kropf

On May 7, 2020, the Department of Justice moved to dismiss the false statement charge against former Trump national security advisor Michael Flynn.

This is a remarkable request for a couple of reasons.

First, Flynn had already pleaded guilty to the crime. He stood in front of Judge Rudolph Contreras in December 2017 and admitted that he had committed this crime and that he was voluntarily pleading guilty to it. Indeed, he provided cooperation to the government to get this deal—otherwise, he would have been charged with more serious offenses under the Foreign Agents Registration Act.

Judge Contreras was recused from the case, and the case was randomly assigned to Judge Emmet Sullivan)

Second, this motion appears to be a naked partisan favor by Attorney General William Barr for a Trump friend. I won’t go into all of the reasons, but this excellent piece in Lawfare covers it well. (Seriously, read this piece. I’m amazed at folks who can write this fast and this well. Bravo.)

The government asked that the charges against Flynn be dismissed with prejudice. If granted, this would mean Flynn could never be charged again for the same conduct.

As DOJ says in the motion:

The United States of America hereby moves to dismiss with prejudice the criminal information filed against Michael T. Flynn pursuant to Federal Rule of Criminal Procedure 48(a). The Government has determined, pursuant to the Principles of Federal Prosecution and based on an extensive review and careful consideration of the circumstances, that continued prosecution of this cases would not serve the interests of justice.

Judge Sullivan has a four options for this motion, as far as I can tell.

  1. Grant the motion with prejudice. The case would be over.
  2. Deny the motion. This would be unprecedented, but this is an unprecedented request in unprecedented times. He could then grant or deny Flynn’s motion to withdraw his plea. There are problems either way. If he grants that motion to withdraw, who will prosecute the case? If he denies the motion to withdraw, who will represent the government at sentencing? The latter is less problematic as a judge could sentence someone without DOJ’s presence and DOJ has already made a sentencing recommendation.
  3. Grant the motion without prejudice. This is a bit of a middle ground. It would mean that the Department of Justice could potentially bring the charges again. Given the timing of the election, this decision would permit a new Attorney General, one who is actually committed to the rule of law, to review the case and decide whether to bring charges.
  4. Take the motion under advisement and wait to decide it until after the election. There are times when federal judges take many months to decide difficult motions—this one presents unique legal issues and we are in the middle of a pandemic. A little delay wouldn’t be unusual. Then the new Attorney General could decide how to handle the case going forward.

Statute of Limitations Issue? Nope

If he chooses option 3 or 4, there is no statute of limitations issue, though the new Attorney General would need to move quickly. Flynn made the statements during a January 2017 interview. There is a five year statute of limitations. So, if the administration changes in January 2021, the new Attorney General could decide to indict Flynn again before January 2022.

Double Jeopardy Issue? Maybe…

There are some possible Double Jeopardy issues since jeopardy generally attaches when the court accepts the guilty plea, and that has happened here. To permit DOJ to bring the charges again, Judge Sullivan may have to grant Flynn’s motion to withdraw his guilty plea. Of course, Flynn may withdraw that motion simply to make sure jeopardy has attached. (There are a lot of moving parts here! Some really smart lawyer should analyze them!)

WWJSD? (What Will Judge Sullivan Do?)

Judge Sullivan is an experienced judge, who doesn’t suffer fools. DOJ brought this case, and his predecessor viewed it as valid charge since he accepted Flynn’s guilty plea. Plus, Judge Sullivan has expressed little sympathy for Flynn, saying at a December 2018 hearing: “I am not hiding my disgust, my disdain for this criminal offense. . . . Arguably, you sold your country out.” In addition, career DOJ prosecutors brought this case, and the underlying facts have not substantially changed, no matter what it says in the motion now.

However, it is a troubling concept that a judge would deny a motion to dismiss charges or wait to decide a motion to give a new administration a chance to weigh in. It would arguably be a political decision, or at least perceived as a political one. (Judge Sullivan was first appointed to the D.C. bench by Ronald Reagan and then by President Clinton to the federal bench.) We can hope that the Trump administration is the only one to politicize the DOJ, but it may not be.

Allowing judges to decide who should be prosecuted and who shouldn’t (rather than a prosecutor) is also problematic. Imagine a jurisdiction where a progressive state’s attorney is elected and wants to stop prosecuting simple marijuana possession and moves to dismiss a few cases. Could a judge decide that she thinks it should be prosecuted and refuse to dismiss the charges? What if the prosecutor wants to drop murder charges because she has decided the key eyewitness is not credible–can a judge refuse to dismiss, deciding that the eyewitness will be credible?

It also creates potential problems for other courts and other cases. Will Trump-appointed judges start refusing to grant DOJ motions near the end of Democratic administrations to see if a Republican is elected who may take a different approach?

Not granting a motion like this one may start a slippery slop that blurs the defined powers allocated between the executive and judicial branches.

The safest course for Judge Sullivan is to grant the motion with a strong admonition to the Department about the political meaning of its motion. But Judge Sullivan has never shied away from tough decisions. He set aside the conviction of Senator Ted Stevens after finding prosecutorial misconduct. He may pick one of the other options.

(Or, maybe, in his wisdom, he’ll figure out Option #5 to solve all of these problems.)

4 comments

  1. Does anyone anywhere have a copy of the transcript of the 12/29 phone call with Kislyak to review alongside a transcript or at least the original 302 of the 1/24 casual interview with Strzok/Priestap? Isn’t that the crux of it? From what I know, only Wapo has a transcript of the phone call. No one has the original 302. So how do you prove a lie? Witness testimony? Is that it? I know he plead guilty, but in the face of what proof? Everyone is so incurious about this. Thanks for your take on Sullivan’s choices!

  2. The first thing Sullivan should do is haul all of the prosecutors from the case in, both the honest ones and Timothy Shea, and make them state under oath whether they agree Barr’s argument for dismissal is true. Shea was the only person willing to sign the filing.

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