We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn. Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal. The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss. In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion.
The order is interesting in its language:
“Upon consideration of the emergency petition for a writ of mandamus, it is ORDERED, on the court’s own motion, that within ten days of the day of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020.”
Often judges are give the option of a response. This is stated in nondiscretionary term. Now consider the language directed at the Justice Department: “The government is invited to respond in its discretion within the same ten-day period.”
The judges reviewing the matter will be Circuit Judges Karen LeCraft Henderson, Neomi Rao and Robert L. Wilkins.
I have previously written about my concerns over inviting third party briefings in a trial hearing on sentencing or dismissal. However, my greater concern is over writings from legal experts who suggest that Sullivan could and should deny the motion to dismiss. While I have said that there are good-faith arguments to be made over the content of the review under Rule 48, much of this analysis ignores the strong case law to the contrary and the implications of such action for criminal defendants in the future.
Rule 48 (a) states that “The government may, with leave of court, dismiss an indictment, information, or complaint.” Such motions however have been consistently left to prosecutorial discretion. The notion that Sullivan would insist on the Justice Department prosecuting a case is bizarre, particularly when the Justice Department has determined that it can no longer do so ethically and that the prosecution was marred by misconduct.
I have been highly critical of the legal commentary suggesting that Sullivan would be on good, if not commendable ground, in denying this motion and sentencing Flynn. There are a myriad of cases that reaffirm the prosecutorial discretion underlying these motions as an Executive Branch function. Putting those cases aside, the D.C. Circuit handed down a strong precedent in favor of the Justice Department in U.S. v. Fokker Servs. B.V., a case where the appellate court granted the relatively rare relief of a mandamus order against a trial judge. In that case, the trial court was also leery of a decision not to prosecute. The Justice Department wanted to enter a Deferred Prosecution Agreement (DPA) with a Dutch company accused of violating U.S. sanctions and export control laws. The trial court felt the company was getting off too lightly. Sound familiar?
The D.C. Circuit swatted down the trial judge, ruling that
“The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces … whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.. . . Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether … to dismiss a proceeding once brought.”
Notably, the decision was written by Sri Srinivasan, an Obama appointee who has been on the short list for liberal Democrats. Judge Srinivasan stressed that “‘judicial authority is … at its most limited’ when reviewing the Executive’s exercise of discretion over charging determinations.” That decision was unanimous with judges from across the ideological spectrum (Judge David B. Sentelle, Judge Laurence H. Silberman and Judge Srinivasan).
That is the authority that Judge Sullivan actually cited for his orders.
Then there was the unanimous decision recently in U.S. v. Sineneng-Smith by Justice Ruth Bader Ginsburg on the issue of courts using outside or third-party arguments. We recently discussed the decision. The Court slammed the United States Court of Appeals for the Ninth Circuit in a criminal immigration case. Like Sullivan, the Court was not satisfied with the party arguments so it ordered a round of new amicus briefing and then relied on the arguments of the outside parties. Notably, this was still better than what is happening in the Flynn case, which is a trial proceeding before sentencing.
Ginsburg wrote that the effort violated the “party presentation principle.” She declared “courts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” The reliance on such third party arguments unified the Supreme Court as “depart[ing] so drastically from the principle of party presentation as to constitute an abuse of discretion.”
Nevertheless, on site after site legal experts are assuring readers that Judge Sullivan has ample authority and reason to deny the Flynn motion as well as enlist third parties to make critical arguments in a trial criminal proceeding. For example, Noah Feldman and Laurence Tribe, are widely cited for supporting Sullivan’s authority. However, mainstream media and many sites have been declaring that Sullivan can and should refuse the dismissal.
Some of these sites have relied on the recent research of Professor Thomas Frampton who contested the common view that Rule 48 is meant to protect defendants like Flynn. Frampton flipped the presumption and says that it was actually meant “to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants” and thus “drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn.” The research is quite interesting but in my view unpersuasive. First and foremost, Frampton (to his credit) acknowledges that “the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong.” Thus, he is contesting existence precedent, which is perfectly acceptable but telling. Second, I do not see how this position could be upheld. It would mean that courts could regularly refuse to allow defendants to go free because they disagreed with prosecutors. Unpopular defendants could find themselves captives to judges who simply want to mete out their own vision for law enforcement. In the Flynn case, such judicial overreach would be assisted with the help of third parties brought into the case by the court.
The Justice Department has long opposed such judicial interventions. Bill Clinton’s Attorney General Janet Reno warned Congress years ago not bar the court from overruling decisions of the Justice Department, stressing that “Our Founders believed that the enormity of the prosecutorial power — and all the decisions about who, what, and whether to prosecute — should be vested in one who is responsible to the people.” When he was Deputy Attorney General, Eric Holder made the same objections that prosecutors must make such decisions and that he would resist courts wanting to “trammel upon the Executive’s core prosecution power.”
In other words, there is much for Judge Sullivan to address in ten days if he is going to defend a possible denial of the motion and his outsourcing of the argument in the case.
Here is the order: D.C. Circuit order