President Obama Declares “There Is No Precedent That Anybody Can Find” For The Flynn Motion [He May Want To Call Eric Holder]

President_Barack_Obama Former President Barack Obama is being quoted from a private call that the “rule of law is at risk” after the Justice Department moved to dismiss the case against former national security adviser Michael Flynn. Obama reportedly told members of the Obama Alumni Association that “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.”  Without doubting the exhaustive search referenced by President Obama, he might have tried calling one “alum”: former Attorney General Eric Holder.  Holder moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan. [Notably, CNN covered the statements this morning without noting the clearly false claim over the lack of any precedent for the Flynn motion]

 The Obama statement is curious on various levels.  First, the exhaustive search may have been hampered by the fact that Flynn was never charged with perjury. He was charged with a single count of false statements to a federal investigator under 18 U.S.C. 1001. I previously wrote that the Justice Department should move to dismiss the case due to recently disclosed evidence and thus I was supportive of the decision of Attorney General Bill Barr.
Second, there is ample precedent for this motion even though, as I noted in the column calling for this action, such dismissals are rare.  There is a specific rule created for this purpose.  Federal Rule of Criminal Procedure 48(a) states the government may dismiss an indictment, information or complaint “with leave of the court.” Moreover, such dismissals are tied to other rules mandating such action when there is evidence of prosecutorial misconduct or fundamental questions about the underlying case from the view of the prosecutors.  I wrote recently about the serious concerns over the violation of Brady and standing court orders in the production and statements of the prosecutors in the case.

Third, there is also case law.  In Rinaldi v. United States, 434 U.S. 22 (1977) which addressed precedent under Petite v. United States, 361 U.S. 529 (1960) dealing with the dangers of multiple prosecutions.   There are also related cases in Bartkus v. Illinois, 359 U. S. 121 (1959), and Abbate v. United States, 359 U. S. 187 (1959).  The Rinaldi decision involved a petitioner convicted of state offenses arising out of a robbery, who believed that the government should have moved to dismiss a federal offense arising out of the same robbery under the Department’s Petite policy. The Court laid out the standard for such motions.  The thrust of that controversy concerned double jeopardy and dual jurisdictions. However, the point was that the rule is key in protecting such constitutional principles and that courts should be deferential in such moves by the Department: “In light of the parallel purposes of the Government’s Petite policy and the fundamental constitutional guarantee against double jeopardy, the federal courts should be receptive, not circumspect, when the Government seeks leave to implement that policy.”

There are also lower court decisions on this inherent authority.  For example, in the D.C. Circuit (where the Flynn case was brought), the ruling in United States v. Fokker Servs. B.V., No. 15-3016 (D.C. Cir. 2016) reaffirms the deference to prosecutors on such questions. The Court noted that this deference extends to core constitutional principles:

“The Executive’s primacy in criminal charging decisions is long settled. That authority stems from the Constitution’s delegation of “take Care” duties, U.S. Const. art. II, § 3, and the pardon power, id. § 2, to the Executive Branch. See United States v. Armstrong, 517 U.S. 456, 464 (1996); In re Aiken Cnty., 725 F.3d 255, 262-63 (D.C. Cir. 2013). Decisions to initiate charges, or to dismiss charges once brought, “lie[] at the core of the Executive’s duty to see to the faithful execution of the laws.” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986). The Supreme Court thus has repeatedly emphasized that“[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.” United States v. Batchelder, 442 U.S. 114, 124 (1979); see Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

Correspondingly, “judicial authority is . . . at its most limited” when reviewing the Executive’s exercise of discretion over charging determinations.  . . . The Executive routinely undertakes those assessments and is well equipped to do so.”

Fourth, there are cases where the Department has moved to dismiss cases on grounds of prosecutorial misconduct or other grounds touching on due process, ethical requirements or other concerns.  One that comes to mind is United States v. Stevens where President Obama’s own Attorney General, Eric Holder, asked the same judge in the Flynn case to dismiss that case.  That was just roughly ten years ago.  As with Flynn, there was an allegation of withheld evidence by prosecutors.

Eric_Holder_official_portraitAt the time of the motion Holder declared “The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis.”  What is obvious is the new guidelines issued at the time were honored in the breach during the Flynn prosecution.

While people of good faith can certainly disagree on the wisdom or basis for the Flynn motion, it is simply untrue if President Obama is claiming that there is no precedent or legal authority for the motion.

The rare statement by President Obama is also interesting in light of the new evidence. As I discussed in a column this morning in the Hill newspaper, the new material shows that Obama was following the investigation of Flynn who he previously dismissed from a high-level position and personally intervened with President Donald Trump to seek to block his appointment as National Security Adviser. Obama reportedly discussed the use of the Logan Act against Flynn. For a person concerned with precedent, that was also a curious focus.  The Logan Act is widely viewed as unconstitutional and has never been used to successfully convicted a single person since the early days of the Republic.  Now that is dubious precedent.

560 thoughts on “President Obama Declares “There Is No Precedent That Anybody Can Find” For The Flynn Motion [He May Want To Call Eric Holder]”

  1. Loved your post. It is very good and provides so much to learn. This post is really amazing. Keep posting such type of material. I also have a website that is related to iPhone screen repair services. Visit it.

    1. You frame law just like a corrupt leftist always does in a world of where there are only adversaries and allies and lady justice never wears a blindfold.

      1. Firstly, that sounds more like the right wing’s outlook.

        Whatever happened to avoiding even the appearance of corruption? This looks a lot like using the justice department for political ends. Apparently even to the judge.

    2. Reply to: I know Mr. Turkey won’t read or respond to this…

      Senator Stevens was an ally of President Obama. He may have been a Republican, but he was also part of that rare fraternity to which Senator Obama had once belonged. Senators don’t convict Senators.

      Also, exactly how is Flynn an ally of Barr? Barr is representing the United States government as it’s chief prosecutor.

  2. Mr. Turley you should get together with the English department of GWU and do a blog article about protesting too much. Mr. Obama doth protest too much.

  3. Does the term freedom of speech protected by the U.S. Constitution come into play here ?

  4. I am not a lawyer but it seems the points made here are referring to dismissal of an indictment where as Flynn was indicted and convicted before the dismissal occured- in that sense there is no precedent I am aware of and Obama is correct.

    1. I am not a lawyer
      in that sense there is no precedent I am aware


      1. Here’s a good one:

        My older bros new “thing” is to tell me what the law is bc he has some lawyer friends.

        I only claim to be a novice in any law capacity, but anyhoo…

        He asked me a Q about burglary, then interjects to tell me that is “breaking and entering” and not burglary


        I said, breaking and entering are 2 elements of burglary, bro-bro.

        He said, no…you’re wrong.

        I said okay, sounds good 👍

        I googled it and sent him the link as to how breaking and entering is not on many state books anymore…

        Just some random google link…

        I don’t try to argue with those who nitpick or know everything, it’s futile.

        1. FWIW:

          In New York law there is ‘trespass’, ‘criminal trespass’, and ‘burglary’. There is no ‘breaking and entering’. Since you used to hear the term on cop shows, I’m assuming it’s in the California penal code. The distinction between burglary and criminal trespass has grown simpler over time. It used to be that to be charged with burglary, you had to be on a property after dark or between specified times on the clock. That’s no longer the case. Now, the distinction is that to sustain a charge of burglary, you have to prove intent to commit a crime while on the property, whereas criminal trespass merely requires you be on the property and hit some other tripwire (such as having climbed over a fence, entered a building, having a weapon, &c). Trespass merely means you’re on a property when you’re not supposed to be there.

  5. Ok now this is one of the more amusing instances of “pot calling the kettle black” I’ve ever come across. Just no sense of irony or self-awareness at all, eh?

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Res ipsa loquitur – The thing itself speaks
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