(Bloomberg Opinion) -- It’s astonishing that Attorney General William Barr’s Department of Justice has “withdrawn” criminal charges against Michael Flynn, the former national security advisor, after Flynn had already pled guilty to two counts of lying to federal investigators. But after you get past the initial shock of Barr once again making partisan criminal prosecution decisions while insisting that he’s doing the opposite, a larger question remains: Shouldn’t there be some kind of check on the executive branch’s capacity to make a guilty plea go away?
The answer is yes, for extreme cases like this one. And on paper, there is.
It’s not only the Department of Justice’s decision to dismiss the charges against Flynn. The federal judge in charge of the case must agree, too.
Ordinarily, that’s a pretty easy decision for a judge. But where a defendant has already admitted to the crime; the executive branch is dismissing charges against a former administration official; and the president encouraged the former FBI director to make the same case go away, that may be the one circumstance where the judge should take a close look at the question. And maybe, just maybe, it would be appropriate for the court to refuse the government’s dismissal.
The law on this question is pretty meager. Under Rule 48 of the federal rules of criminal procedure, the government may dismiss pending cases “with leave of court.” Technically, Flynn’s case is still pending, because although he pled guilty, the government had not yet recommended a sentence and Flynn had not yet received one.
Ordinarily, a dismissal, if one is sought by the prosecution, takes place before a guilty plea. And as Andrew Crespo, a criminal law expert who is my Harvard Law School colleague, pointed out to me, there isn’t much a court can do if the government wants to dismiss a case before trial. The judge would be hard-pressed to order the prosecutor to call witnesses and present an argument for guilt if the prosecutor is saying that the prosecution is inappropriate. Thus, in practice, the fact that the judged must approve the dismissal is largely pro forma.
Not so after a guilty plea has been entered. After all, the deed has already been done. The only thing left for the prosecutor to do is recommend a sentence. If the prosecution declined to recommend a criminal sentence, the judge could still pick a sentence under the federal sentencing guidelines.
As Crespo also suggested to me, the strongest argument against the judge declining to dismiss would derive from the principle of the separation of powers. In the U.S. system, the executive branch prosecutes, and the judicial branch judges. Yet the separation of powers isn’t absolute when it comes to criminal prosecutions, as we can see from the very fact that the rules of criminal procedure require judicial approval of dismissal.
Then there’s the crucial fact that Flynn acknowledged his guilt. True, we all understand that, faced with the awesome power of prosecution, defendants sometimes plead guilty even if they aren’t. Liberals should be the first to acknowledge that in the real world, a guilty plea doesn’t necessarily mean the defendant committed the crime.
But when the crime was lying, and the government still acknowledges that the defendant in fact did lie, there is less reason to worry that the defendant has been railroaded. According to Barr and the Department of Justice, the changed circumstances are not that Flynn was telling the truth, but that the government is no longer confident that they could prove to a jury that the lie was about a matter “material” to a possible criminal prosecution. The materiality standard is notoriously easy to meet in lying-to-the-FBI cases; the judge could safely make this determination for himself.
The upshot is that the existing law creates a check on actions like the Justice Department’s current flip-flop. This judicial check should be used sparingly. But it would be worth it for the judge here to take a long look at the circumstance of the government’s reversal before making up his mind.
In the end, we probably shouldn’t put people in prison if the government who prosecuted first them believes they’re not guilty. But we also should resist the partisanization of criminal investigation and prosecution.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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