Flynn’s Path to Freedom Runs Through Judge Who May Say No
Flynn's Path to Freedom Runs Through Judge Who May Balk at DOJ
(Bloomberg) -- After fighting to get the government’s case against him thrown out, former Trump aide Michael Flynn got his wish Thursday when U.S. prosecutors asked for the dismissal themselves. Now all he needs is for the judge to agree.
That isn’t guaranteed.
U.S. District Judge Emmet Sullivan has a number of options. He could accept the government’s request to end its prosecution of President Donald Trump’s former national security adviser, who pleaded guilty to lying to federal officers during the Russia investigation and then sought to withdraw his plea. In fact, that’s the likeliest outcome, according to legal scholars and former prosecutors who aren’t involved in the case.
“Judges only very rarely reject a prosecution request to drop the charges,” said Robert Weisberg, a professor at Stanford Law School.
But that doesn’t mean Sullivan will sign off on the about-face with the perfunctory stroke of a pen.
“At the very least, the judge may do some inquiring about what’s really going on here” to see if “there’s anything potentially unsavory about this,” Weisberg said.
And he could do a good deal more: Hold a full-blown hearing on the Justice Department’s decision to seek a dismissal. Appoint a lawyer as a “friend of the court” to help argue legal issues. Even, in an extraordinary act, refuse the dismissal request.
Sullivan is “not the type to accept what the government tells him so quickly,” said Joel Cohen, a lawyer at Stroock & Stroock & Lavan LLP who interviewed the judge for a book.
Nor does he have a lot of patience for the defendant, whom he told at a hearing in 2018, “Arguably, you sold your country out,” having expressed “disgust” and “disdain” for his offenses.
“I think he’s going to hold a hearing,” said Cohen, a defense attorney in New York for 35 years. The purpose would be “to see if there’s any political influence or bad faith in the government looking to dismiss the case,” Cohen said. “He could ask what was the attorney general’s role in the matter and what was the president’s involvement.”
In moving to dismiss, the U.S. said an internal review found that Flynn’s false statements to agents of the Federal Bureau of Investigation weren’t “material” to the probe into whether Russia interfered in the 2016 election. “The government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are ‘material’ to an investigation that ... seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn,” U.S. Attorney Timothy Shea said in a brief.
Sullivan may have a different view.
“There is still some judicial scrutiny, and it’s in the judge’s independent discretion whether to dismiss the case,” said Harry Sandick, a former federal prosecutor. “The judge could say there’s not a basis to grant the motion.”
The Supreme Court has held that a trial judge can’t deny the government’s request to dismiss its own prosecution as long as the decision isn’t “tainted with impropriety” or motivated by considerations contrary to the public interest, according to Sandick. In its brief, the government said federal rules give prosecutors wide discretion to decide whether to dismiss pending charges.
“This is a demanding standard, but there is an argument that the president’s many public statements ‘taint with impropriety’ the decision to seek dismissal, rendering the decision contrary to manifest public interest,” Sandick said.
Mimi Rocah, a former federal prosecutor in Manhattan, scoffed at the government’s conclusion that Flynn’s lies weren’t material.
It doesn’t pass “the laugh test,” said Rocah, who is running as a Democrat for district attorney in Westchester County, New York. “Materiality is broadly defined, and lying about talking to the Russian government when the investigation was about coordination between the Russian government and the campaign or administration is material.”
If Sullivan, a Bill Clinton appointee, declines to dismiss the case, the U.S. would almost certainly appeal. In the meantime, the judge could continue to decide any pending defense motions. If he ruled against Flynn, who twice admitted his guilt in court, the judge would proceed to sentencing, according to Sandick. Trump may also short-circuit it all and pardon Flynn.
But first Sullivan may want to plumb the government’s reasoning in dropping the charges and see how closely it hews to Flynn’s claims of “egregious government misconduct,” including deep-state machinations by biased FBI officials, said Robert Sanders, a retired U.S. Navy judge and an associate professor of criminal justice at the University of New Haven. The judge may want to probe whether prosecutors really reversed themselves over materiality.
“Is that agreement or disagreement consistent or inconsistent with the government’s stated rationale for its own motion?” Sanders said. “If the judge feels he is being played with by the parties, particularly the government, a bigger pushback is likely.”
The Justice Department points to new evidence it says shows that federal agents set Flynn up to lie. On Thursday, Trump called him a “great warrior.”
Stanford’s Weisberg said the FBI’s actions weren’t unusual.
“That this was really rough behavior by the FBI is perfectly plausible,” but “that applies to zillions of cases” in which agents play hardball in a way that’s “not illegally coercive,” he said. “Sure, you can complain about this kind of action by the FBI. But to suddenly single out Flynn as the most sympathetic victim of this sort of thing is ridiculous.”
Should Sullivan dismiss the case, he must decide whether to toss it out “with prejudice,” meaning prosecutors could not in the future charge Flynn with the same crimes. Kimberly Wehle, who teaches at American University’s Washington College of Law, said he must do so because Flynn has already entered a guilty plea and can’t be prosecuted twice.
But Jennifer Rodgers, who teaches at Columbia Law School, said the judge could dismiss it “without prejudice” or in such a way that subsequent prosecutors could probe Flynn without running afoul of the law.
The next move is Sullivan’s, and in the end he may decide he’s heard enough.
“The judge can still say: Based on the information I already have from the guilty plea and anything else that’s already in the record, I’ll just decide the sentence,” Weisberg said.
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