How Should Judge Sullivan Determine if the Government's Motion to Dismiss the Michael Flynn Case is Appropriate?

This "victimless" crime is a curious one for close judicial scrutiny of a Government motion to dismiss--closer scrutiny should be reserved for cases in which crime victims have a clear interest.

The Government's motion to dismiss charges against former national security advisor Michael Flynn seems to have drawn more-than-ordinary scrutiny from D.C. District Court Judge Emmet Sullivan. In fact, yesterday Judge Sullivan appointed an amicus curiae (an experienced former federal judge) to file a brief in opposition to the Government's motion. While Judge Sullivan may have been acting within his authority to seek an amicus view, this is a curious case in which to exercise such detailed scrutiny over Government dismissal motion. More than a decade ago, I called for careful review of Government dismissal motions in cases in which crime victims' interests might be at stake. My suggestion seemed to have gained little traction then. If the Flynn case is going to serve as a precedent, then I hope the precedent will be applied evenhandedly to ensure that judges always consider crime victims' views in evaluating Government dismissal motions--rather than the ad hockery that this case seems to be producing.

Some background about the Flynn case: Last week, the U.S. Attorney for the District of Columbia moved to dismiss the criminal case against former Trump national security advisor Michael Flynn, who had previously pleaded guilty to a single count of making a false statement to the FBI during its counterintelligence investigation into Flynn. In its dismissal motion, the Government explained its view that continuing the case against Flynn "would not serve the interests of justice" because it was no longer able to prove, beyond a reasonable doubt, that any statement by Flynn was "materially" false with respect to a matter under investigation.

Under Federal Rule of Criminal Procedure 48(a), a Government motion to dismiss charges requires approval of the judge presiding over the case. In most cases, that approval is a mere formality. In the Flynn case, however, the presiding judge (Judge Sullivan) has taken a greater interest in the dismissal motion than is normal.

The standard that a district judge is to apply in reviewing a motion to dismiss is generally understood to give considerable deference to prosecutors. For example, the D.C. Circuit (the appellate court with authority over Judge Sullivan) has previously explained the limited role that trial judges have in reviewing motions to dismiss:

Rule 48(a) of the Federal Rules of Criminal Procedure requires a prosecutor to obtain "leave of court" before dismissing charges against a criminal defendant. Fed.R.Crim.P. 48(a). That language could conceivably be read to allow for considerable judicial involvement in the determination to dismiss criminal charges. But decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion. See e.g., Newman, 382 F.2d at 480. To that end, the Supreme Court has declined to construe Rule 48(a)'s "leave of court" requirement to confer any substantial role for courts in the determination whether to dismiss charges. Rather, the "principal object of the 'leave of court' requirement" has been understood to be a narrow one—"to protect a defendant against prosecutorial harassment … when the [g]overnment moves to dismiss an indictment over the defendant's objection." Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977).…

So understood, the "leave of court" authority gives no power to a district court to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution's desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant's alleged conduct.

United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016).

Other Circuits have given a slightly broader interpretation of the judicial role in evaluating a Rule 48(a) motion to dismiss.  For example, the Fourth Circuit has recited the standard as "clearly contrary to manifest public interest." Rice v. Rivera, 617 F.3d 802, 811 (4th Cir. 2010).  This formulation--which appears to be the more common one among the circuits--gives room for district courts to reject bad faith dismissals motivated by (among other grounds) "personal dislike of the victim." Id.

While as a substantive matter federal prosecutors have discretion in deciding whether to dismiss criminal charges, an important procedural issue arises against the backdrop of expanding crime victims' rights in federal criminal justice process: Should a judge consider a crime victim's view on the dismissal? In 2004, Congress adopted the Crime Victims' Rights Act (CVRA), guaranteeing victims greater rights throughout the process. Effectively implementing those rights throughout the federal criminal justice process would seem to require extensive changes to the Federal Rules of Criminal Procedure. And so, in 2006, when I was serving as a federal district court judge in Utah, I wrote a law review article comprehensively reviewing the kinds of changes that appeared to be appropriate to a number of the federal criminal rules. For Rule 48(a), I proposed an amendment requiring the district court to consider the views of any victim on a dismissal motion, with language to be added to the rule as follows:

Rule 48. Dismissal
(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint…. In deciding whether to grant the government's motion to dismiss, the court shall consider the views of any victims.

I submitted my proposals for changing the rules to the U.S. Supreme Court's Advisory Committee for the Federal Rules of Criminal Procedure. After reviewing my proposals, the Advisory Committee essentially decided to adopt none of them.  With regard to my proposal to amend Rule 48(a), the Advisory Committee disagreed with my suggestion, explaining:

The Subcommittee recognized that victims will have a great interest in whether charges are dismissed. The CVRA does not, however, explicitly address dismissals, and it speaks only of not excluding the [victim] from, and providing the [victim with] … a right to be reasonably heard at public proceedings in the district court. If the government moves for dismissal there is ordinarily no public proceeding. … In light of the statutory statement in 18 U.S.C. § 3771(d)(6) that nothing in the CVRA "shall be construed to impair the prosecutorial discretion of the Attorney General," as well as the separation of powers issues raised by judicial review of the government's decision to terminate a prosecution, the Subcommittee was not persuaded that the rule should be amended to require the court to consider the victim's views on dismissal. When there is no public court proceeding, the victim's views will be taken into account through the right to confer with the government under 18 U.S.C. § 3771(a)(5).

In a law review article a few months later, I explained my disagreement with the Advisory Committee's views.  In particular, given that the CVRA promises crime victims in the federal criminal justice system a right "to be treated with fairness," it seemed to me that as a procedural matter, the victim's views should at least be in front of the court as it evaluates a motion to dismiss.  I also pointed out in another section of my article that many crime victims will lack legal counsel, and accordingly  courts should consider appointing attorneys to help provide victims' views to the court.

Since I offered these views more than a decade ago, very few judges have acted to ensure that crime victims' views are considered on Government dismissal motions. In 2006, a case presenting the issue arose in front of me (U.S. v. Heaton), and I ruled that that it was inappropriate to grant a Government motion to dismiss in a victim-related case unless the Government provided me with information about the victim's view on the dismissal. Similarly, in 2014, Judge Barry Ted Moskowitz cited my decision, reaching essentially the same conclusion. Few other judges, however, have followed this approach.

But during the last week, the Flynn case has sudden prompted renewed interest in judicial scrutiny of Government dismissal motions. For example, on Monday, literally "thousands of ex-prosecutors" urged Judge Sullivan to question the Government's motion to dismiss the case.

In this short blog post, I don't want to venture into the substantive merits of the Flynn dismissal issue or the amicus appointment. I recognize that some knowledgeable commentators, including my friend (and former Utah U.S. Attorney) Brett Tolman, view Judge Sullivan's action to receive more input as "outrageous", given the deference judges typically give prosecutors on a dismissal motion. And I know that other distinguished commentators have criticized Judge Sullivan's decision to appoint an amicus to present arguments to him, particularly in light of his earlier rulings declining to hear from non-parties in the case. Having served as a court-appointed amicus in a federal criminal case (before the U.S. Supreme Court no less), this objection strikes me as not going to Judge Sullivan's power to appoint an amicus so much as his consistency in doing so.

My point here is a more limited one touching on the rights of crime victims--i.e., that whatever approach Judge Sullivan uses to evaluate the Government's motion to dismiss the Flynn case should be applied to all such motions across the country. For example, the many ex-prosecutors who want close examination of this particular dismissal motion should explain why similar examination isn't called for in other cases. The scrutiny that a judge gives to a Government dismissal motion should not depend on whether one tends to agree or disagree with the underlying merits of the case--or whose political ox is being gored. Instead, neutral principles should be in place that are uniformly applied to all such dismissal motions. Thus, for the reasons I wrote about long ago in my earlier law review article, I continue to believe that judges should always be required to consider a crime victim's views before dismissing a case. It may well be that most Government dismissal motions continue to be granted, even when a victim objects. But as a procedural matter, consideration of the victim's view ensures greater fairness--and certainly greater perceived fairness--in the process.

From the perspective of applying neutral principles to dismissal motions, it is unclear why the Flynn case is suddenly attracting such broad attention. Indeed, if anything, this particular dismissal motion arguably deserves less scrutiny than many others that the Government files. Here, the crime at issue (false statement during a Government investigation) can be viewed as a "victimless" crime--or, perhaps more precisely, a crime in which the only victim is the Government. And the Government/victim in this case is represented by legal counsel--in contrast to the vast majority of criminal cases, in which victims are unrepresented. Here, the Government/victim has indicated that it can no longer clearly prove the underlying criminal case. As the Government's dismissal motion explains in great detail, "[u]nder these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are 'material' to an investigation that—as explained above—seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn." In other words, in this case, no "victim" exists--in contrast to many other Government dismissal motion cases, in which a crime"victim" indisputably exists.

If Government dismissal motions are going to receive the kind of scrutiny that Judge Sullivan is giving to this one, then that attention should not be ad hoc. Perhaps the renewed attention being brought to Rule 48(a) through the Flynn case will create broader interest in ensuring that crime victims' views are always heard before a judge considers whether to grant a dismissal motion. Rule 48(a) should be amended to give crime victims an opportunity to be heard on any dismissal.  But until a consistent procedure is put in place for such judicial scrutiny--and until "amicus" legal representation is provided to all victims in all cases in which dismissals are consider--the attention being given to the Flynn dismissal motion is going to look "outrageous" to those who think the underlying prosecution was itself unfair.