Litman’s column follows the pattern of not even discussing the allegations facing the prosecutors or the new information. There is no mention of the possible false statements or withheld evidence in the case. There is no mention of new evidence showing findings of no criminality but high-level interventions to keep the investigation alive. The case is presented again in an immaculate fashion where the impropriety of the Justice Department is presented as established and beyond question. While I have admitted to coming to these disputes with the bias of a long-standing criminal defense attorney, I at least acknowledge the opposing arguments on the merits.
However, the most disconcerting part of the column is that the merits seem secondary to the point:
“Still, Sullivan doesn’t have to deny the motion to make trouble for the department. He could order an evidentiary hearing to evaluate the motion’s chief contentions, and that would not be a pretty day for the department. It could result in making public the transcripts of the calls between Flynn and the Russians. The department claims the conversations were innocuous and pro forma; the smart money suggests otherwise.”
Litman acknowledges that Sullivan has no real choice but to grant the motion to dismiss since a denial “would go against the grain of federal court rulings, in particular from Sullivan’s own D.C. Court of Appeals, which specify that dismissing criminal charges “lie[s] squarely within the ken of prosecutorial discretion.” Yet, despite worrying about the “assault on the rule of law,” Litman encourages Sullivan to use a hearing on the motion to “make trouble” for the Administration.
Let’s unpack that statement because, while I consider it wrong, it is far more honest and direct than many commentators. Litman is saying that the outcome of the motion seems pretty cut and dry, as I have previously written in columns. The precedent is clear and Sullivan would likely be rapidly reversed in a denial. Most judges are careful not to exceed the question before it. If the law is clear on the motion, the question is the authority of the court to use a hearing to seek to cause trouble or embarrassment for the Administration. That would effectively amount to the staging of a hearing for a purpose other than the merits of the legal question before the Court.
Litman also heralds the appointment of former federal judge, John Gleeson, to argue against the motion (and consider a perjury charge against Flynn) without even mentioning the highly controversial notion of such third party arguments in a criminal case. Again, the law in this area is detached from the ability to use such appointments to cause trouble for the Administration.
Litman’s premise is that, while the law favors the government’s motion,
“Sullivan doesn’t have to deny the motion to make trouble for the department. He could order an evidentiary hearing to evaluate the motion’s chief contentions, and that would not be a pretty day for the department. It could result in making public the transcripts of the calls between Flynn and the Russians. The department claims the conversations were innocuous and pro forma; the smart money suggests otherwise.”
That sounds a lot like using a hearing on a motion for a purpose other than the merits, to engineer an ugly scene for the Administration simply because the Court has the defendant as a captive in the courtroom.
Litman then seems to untethered his writing from his prior legal analysis that the law in the area is clearly in favor of the motion.
“But Sullivan needn’t deny or attack the principle of prosecutorial discretion; he can simply deny the motion on the grounds that the government’s arguments don’t hold water. The DOJ claims there is new evidence that supports dismissal, but none has been cited. It says there was no basis for questioning Flynn in the first place, but the predicate for suspecting Flynn is clear — the intercepted phone calls — as the department’s own inspector general expressly found.”
So, let’s unpack again. The law is clear that the Justice Department should make this determination that it cannot ethically prosecute the case. However, the Court could deny the motion by finding that, despite the recognition of prosecutorial discretion, the Court believes it can prosecute the case … but that is not a denial of prosecutorial discretion.
This position is supported by the conclusory statement that “[t]he DOJ claims there is new evidence that supports dismissal, but none has been cited.” With all due respect to Litman, that is simply not true. The Justice Department and the defense have presented highly disturbing allegations of prosecutors who refused to drop the investigation even after no criminality was found against Flynn. They also detailed how high-ranking prosecutors turned to the flagrantly unconstitutional Logan Act as the final option to come up with a crime, any crime, to allege against the incoming National Security Adviser. Litman may not be bothered by such evidence but it was presented.
Once you acknowledge that the law is clear on the discretion of the Justice Department to dismiss its own criminal case, the rest is just sport. This is a moment that many, including Litman, seem to relish:
“If [Judge Sullivan] elects to use the the power at his disposal, one judge could accomplish what Congress, multiple inspectors general, and a majority of the electorate have not been able to do — hold the president and his allies accountable for their contemptuous disregard for the rule of law.”
So, again to his credit, Litman is at least being honest that this is about using a courtroom to “hold the president and his allies accountable.” The problem is that the person “accomplishing what Congress . . and the majority of the electorate have not been able to do” is an Article III judge who is supposed to stay clear of politics and political questions. If one is truly concerned with the “rule of law,” that is one rule that you might not cavalierly toss aside.
Update: Mr. Litman responded to this blog with a series of tweets and I think that his view should be included in response. (I would also like to respond to those points).
His first point is that my blog is based on “a series of obtuse misreadings of the oped.” I will have to leave that to the reader but I quoted Litman extensively. I fail to see out it is obtuse to note that Litman is asking the court to accomplish “what Congress . . and the majority of the electorate have not been able to do.”
Litman also states that “the DOJ has advanced a series of factual and legal arguments that don’t withstand scrutiny, as so many people have pointed out.” That is a legitimate argument but not the one that Litman made. Rather he said “[t]he DOJ claims there is new evidence that supports dismissal, but none has been cited.” It is cited and is part of the record of the Court. Litman just does not buy the argument, which is perfectly fair. My point was only that he was suggesting no such evidence was referenced by the DOJ.
Litman says “it’s a serious mischaracterization of that legal argument to say, as you repeatedly do, that the oped advocates departing from the law or, worse, that it acknowledges that Sullivan “has no real choice but to grant the motion.” Here is what Litman said in the column:
“He could simply deny the government’s motion and proceed to sentence Flynn, which would have been the next step in the case if the government hadn’t dropped its dismissal bomb.
However, that would go against the grain of federal court rulings , in particular from Sullivan’s own D.C. Court of Appeals, which has specified that dismissing criminal charges ‘lie[s] squarely within the ken of prosecutorial discretion.'”
He also said “That sounds like a grant of open-ended judicial discretion, but courts have interpreted it to provide judges very little leeway to reject the government’s decisions to dismiss charges in a criminal case.” That sounds a lot like having no real choice on the motion. Litman then explains how the court can make this tough on the Administration and even deny the motion.
Litman also objects that “[y]ou again grossly distort the oped to suggest that an evidentiary hearing would be “for a purpose other than the merits of the legal question before the Court.” Again here is what Litman actually said:
“Still, Sullivan doesn’t have to deny the motion to make trouble for the department. He could order an evidentiary hearing to evaluate the motion’s chief contentions, and that would not be a pretty day for the DOJ. It could result in making public the transcripts of the calls Flynn made to the Russians and then lied about. The department claims the conversations were innocuous and pro forma; the smart money suggests otherwise.”
He then ends his column by encouraging Sullivan to do what the election and the Congress failed to do “hold the president and his allies accountable for their contemptuous disregard for the rule of law.” He does not explain how responding to Trump’s “allies” or the election should be relevant to a court’s legal analysis or proceedings.
He also objects “you take me to task for not mentioning the ‘highly controversial notion of third party arguments in a criminal case. The controversy is essentially invented by you, and your tweet about it is citation-free.” Actually, the tweet is citation free but not the links in the blog. Moreover, the controversy has been reported by many, including critics of the President. Even NBC called this “unusual”and a group of Attorneys General also called out the practice and called for the dismissal of the action. Judge Sullivan himself rejected this possibility earlier in this very case, as I previously discussed. Sullivan rejected such a request on Dec. 20, 2017, stating that “the Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases. … Options exist for a private citizen to express his views about matters of public interest, but the court’s docket is not an available option.” Thus, I cannot claim to have “invented” this controversy. Indeed, while, as Litman says I may be “a very lonely voice in the wilderness” on some sites that Professor Litman frequents, I am actually not alone in raising these points.
Finally, Litman states that “there are many instances, including Rule 42, where the courts use amici in a criminal case.” That is news to me. I have been a criminal defense counsel for over three decades and I have never seen such amicus at a trial proceeding on sentencing or dismissal. Indeed, Judge Sullivan himself noted that it is not normally “an available option.” There are amicus filings that commonly occur on appeal or civil cases but that is not the point here. I could be wrong that this is a routine practice as Professor Litman suggests but I remain skeptical. Like many criminal defense attorneys, I view such third party argument on the trial level before sentencing to be a dangerous, rare, and controversial practice.
In the end, despite our disagreements, I am glad that Professor Litman responded. You can read his tweets in context here. This is no doubt a spirited disagreement between academics but I believe that it is a worthy debate to have. Indeed, one of my main objections is that academics often mischaracterize the debate and the underlying law in failing acknowledge such countervailing arguments, as I noted in another posting today.
Professor Litman has contributed greatly to the legal academy and, while I strongly disagree with his column and later defense, I believe all of the readers should give them the most serious consideration.