Why Do Rule 48(a) Dismissals Require "Leave of Court"?

A new paper by Thomas Frampton suggests most recent commentary concerning the Michael Flynn prosecution gets it wrong.

On May 7, the Department filed a motion seeking leave from the district court to dismiss the charges against Michael Flynn. Despite Flynn's repeated confessions and the district court's prior rejection of arguments now made in support of Flynn, such as the argument that his lies were not "material" to ongoing investigations, Attorney General William Barr has decided to reverse course.

Rule 48(a) of the Federal Rules of Criminal Procedure provides that the federal government "may, with leave of court, dismiss an indictment, information, or complaint." So what does it take for a court to grant the government "leave" to dismiss the indictment? A new (short) paper by Thomas Frampton provides some answers, some of which conflict quite a bit with the much political commentary about the case.

Here's the abstract:

The conventional view of Rule 48(a) dismissals distinguishes between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges. In United States v. Flynn, the Department of Justice argues that Rule 48(a)'s "leave of court" requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper. In support, the Government relies on forty-year-old dicta in the sole U.S. Supreme Court case interpreting Rule 48(a), Rinaldi v. United States. There, the Court stated that the "leave of court" language was added to Rule 48(a) "without explanation," but "apparently" this verbiage had as its "principal object . . . to protect a defendant against prosecutorial harassment."

But the Government's position—and the U.S. Supreme Court language upon which it is based—is simply wrong. In fact, the "principal object" of Rule 48(a)'s "leave of court" requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn: its purpose was to empower the Judiciary to limit dismissal in cases where the district court suspects that some impropriety prompted the Executive's decision to abandon a case.

To be clear, there may be good reason for the district court to grant the Government's motion to dismiss in United States v. Flynn. But the fiction that Rule 48(a) exists solely, or even chiefly, to protect defendants against prosecutorial mischief should be abandoned. This brief Essay recounts Rule 48's forgotten history.

(Hat tip: Carissa Hessick)

Comments

[Michael W. Towns]

Sounds like a convenient theory concocted over the last couple of days to justify Judge Sullivan's bizarro world behavior.

[Beldar]

Prof. Frampton's article references — and quotes extensively by name, date, and author — activities within the SCOTUS' Advisory Committee from 1944, when the Federal Rules of Criminal Procedure, including Rule 48(a), were first promulgated.

Why would you characterize that as "a convenient theory concocted over the last couple of days," Mr. Towns?

[Michael W. Towns]

See Armchair Lawyer's comment below.

[Beldar]

Since Armchair Lawyer's comments don't discuss the Advisory Committee in 1944, they can't possibly shed light on your assertion that Prof. Frampton's promoting a "convenient theory concocted over the last couple of days."

Why don't you just admit that you are a fan of Gen. Flynn's and didn't bother to actually read Prof. Frampton's article before posting?

[Dilan Esper]

It seems to me that if you are going to decide that judges can take control of a case, this isn't the way to do it. The Rules Committee is solely in charge of procedure, not substance, and for good reason. Constitutionally, they are no more than an extension of Article III judges' right to control their own procedure.

Making a substantive, outcome determinative rule that the DOJ can't dismiss a case, it would seem to me, is a congressional prerogative.

There are strong separation of powers arguments that judges can't prosecute. If a judge, at any point in the proceedings (which is what Rule 48(a) says), can continue the prosecution of the case over the objections of the prosecutor, we have a problem. (The "defendant doesn't consent" issue is different, because if a defendant doesn't consent, the DOJ has every incentive to prosecute aggressively. Here, in contrast, the judge would need to become the prosecutor as the DOJ's incentive would be to try to throw the case in every manner possible, including not only at the trial court but also on appeal and habeas.)

Now, Prof. Hessick has one good counter-example: bribery. And she's right that if bribery of the prosecutor were proven, the courts would do everything possible to try and take the case away from the prosecutor, whatever separation of powers might say. But even then, it's not horrible to say this isn't a remedy for bribery. After all, if bribery were not proven until after acquittal / post-trial dismissal, double jeopardy would bar a second prosecution.

At the end of the day, this was an overreach by the rules committee, and the courts which interpret this narrowly are correct.

[TheAmazingEmu]

I'm not sure I agree that this is a substantive rule rather than a procedural one. It's only determinative because the defendant has already pled guilty. The procedural aspect is the timeline of when to sentence a defendant. If a Judge could have sentenced the same day as the guilty plea, there would have been no motion to dismiss.

[Hamo Cole]

Where is Frampton's evidence for his bald assertions?

[Dr. Ed]

As to Judge Sullivan, said to be a pro-defendant judge, what ever happened to "in the interest of justice"?

[KenveeB]

Not really. It's a rationale I've often heard over the years. I do think that appointing amici is still inappropriate, but the basic rationale is not a new idea.

[Armchair Lawyer]

So, it's not just the "political commentary" in regards to rule 48(a). Much (if not all) of the court cases and judicial opinions regarding rule 48(a) are in reference to the government dismissing an indictment, only to re-indict (often on the same charges) later, typically to give the government an advantage.

United States v. Hayden, 860 F.2d 1483, 1487 (9th Cir. 1988) gives a good example of some of these previous papers, as does US v BURLESON (2017, District of Nevada).

I'm hard pressed to find ANY cases where the court rejected the Government dismissing charges with prejudice, and the court reversed. One of the major reasons for this, I'm sure, is it's much easier for "politically well connected" individuals to convince prosecutors not to indict in the first place.

[Lee Moore]

One of the major reasons for this, I’m sure, is it’s much easier for “politically well connected” individuals to convince prosecutors not to indict in the first place.

One would think so, though Mr Woody obviously failed. Clearly if it gets as far as court, the political connections have not done very well.

Purely as a matter of text though, and leaving precedent behind, it's not obvious to me why the court should be expected to rubber stamp a prosecution surrender, seeing as "with leave of the court" must be doing some kind of work.

As a matter of policy, I think it's reasonable for the court to ask the prosecutor to explain its surrender.

[Armchair Lawyer]

I agree, as a matter of policy, it's reasonable for the court to ask the prosecutor to explain the surrender. It's very unusual for the court not to grant it though.

Perhaps a good analogy is the Jussie Smollet case, where the indictment was dropped extremely quickly, with minimal explanation. But even there, the judge allowed it.

[bernard11]

Well, if they are always going to grant it, asking for an explanation is superfluous, isn't it?

[Armchair Lawyer]

Not necessarily.

Having the prosecutor on the record with a full, thought out explanation for dropping the charges is extremely useful, especially if the court case needs to be revisited later. If the prosecutor gives a minimalistic explanation (IE, "We're dropping it because I want to"), then the court can demand a more thorough explanation.

[Dilan Esper]

You could even argue that the prosecutor should have to answer questions under oath.

That would open the prosecutor to a perjury charge later if they were lying about the reasons for the dismissal.

[jdgalt1]

Another reason is likely that a faction with enough control over the prosecution to get an unjustified surrender probably also controls the judge. As in Eric Holder vs the Black Panther party.

[Pacific]

Yes, everyone knows the Black Panthers control both the judiciary and executive.

[Pacific]

Has a court ever dismissed a case under Rule 48 where, as here, the defendant plead guilty?

[Armchair Lawyer]

Yes. United States v. Hamm. 1981. 5th Circuit.

Slightly different case. Here's a brief summary, forgive me if I get any of it wrong. In short, drug dealers strike a plea deal with the government, and plead guilty. Drug dealers help out government a lot, were promised a minimal sentence by the prosecution in the plea deal. Looks like a snafu with the court, and the judge said no on the deal. Dealers withdrew guilty plea, and the government supported them, and dropped charges. (Not sure if it was with or without prejudice) District court judge got upset, and wouldn't let them withdraw it.

Case got appealed, and overturned by the 5th circuit court. Said the district court overstepped its authority.

[Beldar]

Thanks for that citation to United States v. Hamm, 659 F.2d 624 (5th Cir. 1981)("Unit A" en banc), from what's currently the Fifth Circuit (but was then undergoing a transition year, in which Florida, Georgia & Alabama were being split off into the Eleventh Circuit).

Key paragraphs from Judge Ainsworth's 8/4 majority opinion, with something for everyone in this debate (italics mine, footnotes omitted):

We hold that the "leave of court" requirement of Rule 48(a) is primarily intended to protect the defendant against prosecutorial harassment. The district court may not deny a government motion to dismiss a prosecution, consented to by the defendant, except in those extraordinary cases where it appears the prosecutor is motivated by considerations clearly contrary to the manifest public interest.

...

... The language of this court in Cowan and the Supreme Court in Rinaldi makes it clear that the motion should be granted unless the trial court has an affirmative reason to believe that the dismissal motion was motivated by considerations contrary to the public interest. As the district judge acknowledged, the prosecutor is the first and presumptively the best judge of where the public interest lies. The trial judge cannot merely substitute his judgment for that of the prosecutor.

From the introductory paragraph to Judge Reavley's dissent:

The disposition of the case at this juncture should depend upon whether the position of the United States Attorney and the Department of Justice on the dismissal of these indictments has changed since first presented to the district court. At that point the motions for dismissal were clearly what the district judge said they were: "a camouflaged attempt to limit the `sentencing authority reserved to the judge.'" United States v. Butler, 486 F.Supp. 1285, 1294-95 (E.D.Tex.1980). The Government had not decided that the prosecutions should be terminated; the decision was that certain sentences should be assessed and that, if the court disagreed, it would be necessary — because of promises made to the defendants — to dismiss rather than to allow the court to give the harsher sentences. The trial court denied the motions under those circumstances — and properly so, in my opinion.

So Judge Reavley saw it as a case in which Rule 48(a)'s discretion was appropriately exercised to combat prosecutorial game-playing — not because it infringed upon the rights of the defendant, but because it infringed upon the province of the sentencing judge.

[Armchair Lawyer]

You're welcome. Like I said, it's a slightly different case.

But it was overturned by the 5th circuit (both the in the original hearing and the en banc decision)
The key lines I take away are as follows: "the trial court, in extremely limited circumstances in extraordinary cases, may deny the motion when the prosecutor’s actions clearly indicate a “betrayal of the public interest."
This betrayal is, for example "if it should appear that the prosecutor is motivated to dismiss because he has accepted a bribe or because he desires to attend a social event instead of attend upon the court in the trial of the case or because he personally dislikes the victim of the crime, the court should withhold leave."

Basically personal failures on the part of the prosecution.

Now this is a rare set of circumstances and doesn't apply in either the Hamm or the Flynn case. In the Hamm case, there might be an argument for the prosecution taking over sentencing. But that doesn't apply in the Flynn case, where the government is arguing that upon review, Flynn didn't really commit a crime. Which is exactly when the prosecution should be allowed to withdraw a case.

[not guilty]

The issue of whether Flynn committed a crime has been litigated at the plea submission hearing and at the truncated sentencing hearing. Flynn is hoist by the petard of his own admissions.

[Kazinski]

“except in those extraordinary cases where it appears the prosecutor is motivated by considerations clearly contrary to the manifest public interest.”

So you think it’s in the public interest for the FBI to conspire to induce false statements because they can’t find a crime to prosecute, and it’s in the public interest to threaten to prosecute a adult child because the case is so weak they can’t get a guilty plea without threatening an innocent third party?

It’s clearly in the public interest to drop these charges because while the FBI may need to play hardball in some cases, a political vendetta is not one of them.

[Kazinski]

The guilty plea was invalid because not all the terms were disclosed to the court. As part of the plea agreement Covington and Mueller’s team agreed there would be no prosecution of Michael Flynn Jr. It’s a legal requirement that all the terms of the plea deal are made part of the record. Even if Sullivan refused to allow withdrawal of the plea deal he’d be reversed on abuse of discretion.

Since the plea deal was flawed the next best thing the DOJ could do is go to trial. No sane prosecutor is going to go to trial with their dogs breakfast of a case: no original 302, only a version improperly edited by Strzok and Page, the threat to Michael Jr., the Priestap memo admitting the only purpose of the interview was to see if they could concoct a lying charge, and the memo showing the FBI believed there was no underlying crime.

[David Nieporent]

As part of the plea agreement Covington and Mueller’s team agreed there would be no prosecution of Michael Flynn Jr.

No, they didn't. We know that, because Flynn swore under oath that no such agreement existed.

No sane prosecutor is going to go to trial with their dogs breakfast of a case: no original 302, only a version improperly edited by Strzok and Page, the threat to Michael Jr., the Priestap memo admitting the only purpose of the interview was to see if they could concoct a lying charge, and the memo showing the FBI believed there was no underlying crime.

Yes, you've shown that you haven't forgotten all of the talking points.

1) There is no missing 302. Nothing was "improperly edited," whatever that even means.
2) There was no threat to Michael Jr., and how would that be admissible at trial in any case?
3) The Priestap memo said no such thing, not even close, and how would that be admissible at trial in any case?
4) Not clear which "memo" you're talking about. If you're talking about the January 4 one, it's neither admissible nor relevant.

[Armchair Lawyer]

"As part of the plea agreement Covington and Mueller’s team agreed there would be no prosecution of Michael Flynn Jr.

No, they didn’t. We know that, because Flynn swore under oath that no such agreement existed."

Covington didn't tell Flynn that the agreement existed.

[David Nieporent]

Look, I know someone (I think Andy McCarthy) floated that, but it's… how do I put this… too retarded for words.

The entire argument is that Flynn was coerced into pleading by a threat against his son. If he didn't know that the threat had been lifted but agreed to plead anyway, then he wasn't coerced by the threat. He was indifferent to the threat.

And what possible benefit could there be to Covington to negotiate such a provision if they don't tell their client about it? What do they get out of that?

[Armchair Lawyer]

Actually, Flynn's new lawyer, "floated it", with submissions of evidence to the court.

https://www.scribd.com/document/458177953/Flynn-Supplement-to-Motion-to-Dismiss-April-pdf#fullscreen&from_embed

As for Covington...seems they weren't the best lawyers for Flynn. Seems they had a major conflict of interest in regards to FARA registrations. Plus they thought Flynn wouldn't pay his massive bill (take a guess how much). They were a little "too friendly" with the prosecution.

[David Nieporent]

You've got to understand that Sidney Powell is, to put it delicately, a loon. You can't rely on the things she files as being rational, let alone correct.

Also, C&B were so friendly with the prosecution that they negotiated something that Flynn really wanted but that the prosecution didn't want to give… and then didn't tell Flynn about it? Still makes no sense.

[David Nieporent]

I’m hard pressed to find ANY cases where the court rejected the Government dismissing charges with prejudice,

Spent a lot of time on Armchair Westlaw lately, have you?

[Armchair Lawyer]

Feel free to contribute in a meaningful way, if you'd like to make your case.

[TheAmazingEmu]

Most of the court cases would come up in cases where a defendant objected to dismissal and raised it as error later. Obviously, these types of cases don't happen when it is to be the defendant's benefit.

[Jimmy the Dane]

We live in clown world when liberals will complain about police and "black lives matter" but are fine with the same law enforcement entities setting up Michael Flynn is a proper use of police power. Clown World.

[Sarcastr0]

...Are you aware you're using a white supremacist meme, there, chief?
https://forward.com/fast-forward/423812/white-nationalist-clowns-honk-honkler/

[Michael W. Towns]

LOL. Everything is white supremacy to these idiots.

[Sarcastr0]

I don't disagree. But this one is pretty much born steeped in it:
https://knowyourmeme.com/memes/clown-pepe-honk-honk-clown-world

[jdgalt1]

Anyone silly enough to believe that white supremacists exist is going to so label anyone who isn't an intersectionalist. So many of the right, including me, are using Honkler just to troll you. Beep beep!

[Michael W. Towns]

Beep beep!!!!

[Sarcastr0]

Pretty sure the knowyourmeme folks aren't really part of the deeps state.

I'm not one to go policing the OK sign or whatever, but this was blatant and not really very easy to explain away as an accidental reference.

[mulch]

You've been outed a coulrophobe -- a dirty bigot against clowns.

[bernard11]

Anyone silly enough to believe that white supremacists exist

Really? There's no such thing? What a remarkable suggestion.

[Jimmy the Dane]

If you go by the liberal definition of racism all white people, because they are white, are white supremacists. Yup they actually believe that. Just do an internet search. That is what they teach kids in college.

[Sarcastr0]

What, are you trying to red pill the VC?

[Jimmy the Dane]

I think the magenta pill is more necessary around these parts...

[Jimmy the Dane]

I note that you don't take exception to the fact Flynn was clearly railroaded by corrupt law enforcement, but only that "clown world" was designated as "hate speech" by some random leftist organization that considers just about anything to the right of Stalin "hate speech."

[Pacific]

He wasn’t railroaded. He’s a traitor. Thanks for playing.

[Jimmy the Dane]

So just as long as it is the "right" person you are fine with blatant abuses of power and entrapment. When it comes your time to stand in the dock I hope your oppressors are more kind for your sake...

[Sarcastr0]

The balance of evidence remains pretty much in favor of his doing all of the criminal things he said he did and what Trump fired him for.

[donojack]

From the last post last week: "Now, I haven’t really looked into the crimes he’s accused of, ..."

So in the meantime have you done some research into the "balance of evidence" supporting "all of the criminal things?"

[Sarcastr0]

Has nothing to do with what I'm saying, I don't know the specific crimes. I do know he was fired for them, and testified under oath that he did them.

[Brett Bellmore]

No one disputes that he testified under oath to doing them. The point is that he was coerced into doing so by first being bankrupted, and then the FBI threatening to go after his family.

Plenty of people are coerced into guilty pleas. It's an open scandal. It's seldom, though, that we get such open and shut proof of it as we have here.

[David Nieporent]

This bankrupted claim — belied by the fact that he never filed for bankruptcy — is laughable. If 10% of the people online who claim he was "railroaded"/"entrapped"/etc. would have contributed $20 each, itt would have taken about 48 hours on GoFundMe for him to raise more money than he could have spent in his life for his defense.

[Noscitur a sociis]

The point is that he was coerced into doing so by first being bankrupted, and then the FBI threatening to go after his family.

Do you have some insight into Flynn's finances that we don't? He should be receiving a six-figure military retirement, his consulting firm had multiple lucrative contracts, he appears to have commanded engagement fees of as much as $45,000, and he published a book that was at least moderately successful. While his legal fees are no doubt significant, it's hard to believe that he was "bankrupted" (literally or figuratively) unless he's done an exceptionally poor job of managing his finances. (It also raises the question of where he found the money to pay for his current lawyer.)

[NoobyNoobyDoo]

What evidence? Of what "criminal things"?

There's actually no evidence that he lied to the FBI, and even if he did lie, no evidence that it was material to any investigation.

Plenty of evidence that the FBI did not follow procedure at every step (and bragged about it!), just so they could railroad him. Bypassed the DOJ & WH Counsel to do the interview. Notes about their goal of getting him to lie or fired. Did not "complete" an edited version of the 302 until 3 weeks afterwards, with help from a non-agent lawyer, trying to keep it "in the voice" of the note taking agent.

Plenty of evidence that the prosecutors willfully lied to the court as they repeatedly violated Flynn's Due Processes rights by not turning over Brady material (still no original 302, etc) and then not including the prosecution threat against his son in the plea bargain.

[Sarcastr0]

There’s actually no evidence that he lied to the FBI

This is getting to be some deep BS. You don't think he was talking to Russia?

You think the FBI has counsel at every interview they do? And I don't see how a late 302 is material to railroading. Certainly it's not Brady.

You're getting some bad legal analysis. When it agrees with what you want as hard as this, you should probably research around a bit before you buy in hook, line, and sinker.

[donojack]

You are seriously confused Sarcastro. Nobody has denied that he "was talking to Russia." That was not a crime nor even unusual given his position on the transition team and as NSA in the new administration.

The 302 wasn't just "late" it was edited by Strzok and Page who wasn't even at the interview. Flynn was never shown the original 302.

You really should refrain from commenting about this until you get up to speed and don't accuse people of "bad legal analysis" when you don't even understand the issues.

[David Nieporent]

Nobody has denied that he “was talking to Russia.” That was not a crime nor even unusual given his position on the transition team and as NSA in the new administration.

It might have been a crime, depending on what was said. Certainly him lying to Pence and the FBI about what was said is unusual.

The 302 wasn’t just “late” it was edited by Strzok and Page who wasn’t even at the interview. Flynn was never shown the original 302.

The 302 wasn't late at all, and you have been lied to by Sidney Powell and Trumpkins online. There's no missing "original 302." Sullivan already ruled months ago on these ridiculous conspiracy theories. Flynn was shown everything including the original interview notes, and expressly found that there were no material differences between the notes, the draft 302, and the final 302.

[Toranth]

DN, you are flat out wrong.

The DoJ has specifically stated that it does not have the original 302 written after the interview with Flynn. There is a "draft" version that was submitted weeks after the interview, after Strzok and Page edited it, and there is another (originally presented as the interview 302) written during an exit interview with Strzok after he was fired.
Unless you are claiming that the DoJ was lying in its filings to the Court, which doesn't actually help your argument any...

[donojack]

"It might have been a crime, depending on what was said." They know what was said and in the interview between C&B and the prosecutors they didn't list any area of interest relating to what Flynn said to "the Russians."

And you are wrong, again, about the 302.

[NoobyNoobyDoo]

Talking to Russia is not a crime.

Actually provide evidence of a crime.

And before you continue to show your ignorance of the facts, try something original that does not involve the Logan Act.

Who said the FBI had to have counsel at the interview? What was said was that the FBI purposefully ignored proper procedures and did not notify either the DOJ or the WH counsel that they were going to do an interview of the NSA. Once again, learn the facts.

A late 302 is very pertinent to accuracy of memory. If a 302 was not done in a timely manner, say 3 weeks later, that'd be pertinent to the defense to call into the question its accuracy. But it wasn't just late, it was edited, but edited to "maintain the voice" of the agent that took the notes, with the help of Page, who was not at the interview. The 302 is most certainly evidence that must be turned over to counsel if the charge is lying, it is the primary evidence that would document at the time of the interview whether Flynn purposefully lied. Editing the 302 weeks after the fact, beyond the standard practice of 5 days, is definitely material to accuracy of the charges.

Especially when you take into account oaths under oath by Comey & McCabe that the agents did not believe Flynn was lied during the interview. But now an aggressive prosecutor is charging him with lying? Show the evidence to back up the charge.

[Sarcastr0]

Good news! I'm doing some research into the actual facts.

Talking to Russia and then not disclosing it is a crime when you're lobbying about policy. Ditto Turkey. Also receiving funding from said countries and not disclosing is a crime.

Flynn lied to Pence, who fired him over it, and then told that lie and others to the FBI. Those lies were found by the court to be material.

The DoJ isn't arguing Flynn didn't lie, it's arguing it shouldn't have interviewed him in the first place. And not really giving a reason why.

[Bruce Hayden]

The relevance of the edited, and not original 302s is that 302s are admissible in court if reasonably contemporaneous. So, FBI rules require that they be filed within 5 days. The original, since disappeared, versions were apparently filed the day of the interview by Special Agent Joe Pientka (who had apparently taken notes, as his senior, Peter Strzok, had interviewed Gen Flynn). The FBI apparently has a Sentinel 302 change management system to track 302 changes. It very likely would have required top level authorization (D Comey or DD McCabe) to have disappeared Pientka’s original 302s.

The problem with the edited 302s is that we have known (From their text messages) for almost three years that Peter Strzok and Lisa Page, DD McCabe’s attorney, worked together editing the Flynn 302s, until they had been approved for filing by McCabe. What we didn’t know until recently is what was removed from the 302s with this editing - that only became public this spring with Powell’s filings with Sullivan. What had been excised, apparently at the command of DD McCabe, was any exonerating information, including that both agents believed, at the time of the interview, that Flynn sounded sincere (bolstered by Pientka having been sent to a briefing the previous summer to get a baseline reading on Flynn). This is critical, since the alleged lying involved Flynn’s claim to not have remembered certain specifics. Proving that someone was lying about not remembering something very much depends on their demeanor and showing indicia of lying. These were missing with Flynn. Instead, he appeared honest to the agents. That information was removed by Strzok, under supervision of Page and McCabe (who had sent Strzok and Pientka over to interview Flynn in the first place under a ruse, lying about the purpose of the meeting, telling him an attorney wasn’t needed, and instructing the two not to inform Flynn that he would be criminally liable under §1001 if he lied to them, which was standard FBI practice).

[NToJ]

"There’s actually no evidence that he lied to the FBI..."

You mean besides his confession?

[MatthewSlyfield]

coerced confessions are meaningless.

[NToJ]

Well if he alleges that his confession was false because coerced, I'll take that into account.

[MatthewSlyfield]

I consider all confession made pursuant to plea deals to be coerced. The negotiated plea process is inherently coercive.

[NToJ]

@Matthew,

Well I'm not bound by your idiosyncratic choice. But "coerced" doesn't mean "false" either.

[MatthewSlyfield]

"Well I’m not bound by your idiosyncratic choice. "

Nor did I suggest you should be. I'm merely stating why I don't accept the "but he confessed" as proof of his guilt.

[donojack]

Yes confessions always prove guilt Lavrentiy.

[NToJ]

Confessions don't always prove guilt. Sometimes they are some evidence (or more than "no evidence") of guilt.

[Sarcastr0]

Love the criminal justice reform ideas y'all have. But your special pleading stinks.

[donojack]

Get off it. I and many other here have been talking about abuse of power ever since I came here ten years ago.

[Sarcastr0]

Bullshit.

You're lying to yourself. You may agree in principle, but there's a huge enthusiasm gap.

The outrage in these Flynn threads dwarfs anything about even qualified immunity in the VC.

Takes only a glance to see that this is the usual reflexive tribal nonsense.

[donojack]

Dude, I had my very own bit of "unpleasantness" with the Feds. I know what they do or try to do. I never talked to them but unlike Flynn I had a target letter in my hands. I also had two sets of attorneys: the first who spent all their energy working on me to cop a plea and the second who kicked their ass in court. And by the way they hid a ton of Brady material. I was just lucky enough to have a good judge who made them cough it up.

The only reason this is tribal is that the usual folks here who line up against government abuse are cheering it on in this. Dilan is the only one I see who is usually on your side who has a problem with this.

[NoobyNoobyDoo]

So the arguments are invalid because of the amount of enthusiasm shown?

That's some bullshit.

Stop beating on the table, start arguing the facts.

[Sarcastr0]

The arguments are not about changing FBI procedures, they are about letting this one guy off the hook. That's special pleading, and an invalid argument.

[David Nieporent]

There’s actually no evidence that he lied to the FBI, and even if he did lie, no evidence that it was material to any investigation.

The claim that there's no evidence it was material is either breathtaking stupidity or dishonesty. Or both. First, it relies on not knowing that this issue was already resolved as a matter of law; Sullivan ruled that it was material. Second, it relies on complete ignorance over the definition of materiality. The FBI was investigating Russian dealings with Trump and people in his orbit. The substance of a conversation between Russia and someone in Trump's orbit over policy is indisputably material. It could be in the dictionary next to the word "material."

Plenty of evidence that the prosecutors willfully lied to the court as they repeatedly violated Flynn’s Due Processes rights by not turning over Brady material (still no original 302, etc)

Nope. Wrong in specifics about the imaginary "original 302," and in general about Brady. Sullivan already ruled that all Brady material was turned over.

and then not including the prosecution threat against his son in the plea bargain.

Don't you mean evidence that Flynn lied? Flynn swore under oath that there was no such threat or side deal.

[Toranth]

Ah, I'm sorry, I see the essence of your argument now.

Sullivan, who is facing accusations of misbehavior and bias, had already ruled that little things like reports detailing that the FBI did not think Flynn had committed a crime, or documents stating that agents did not think Flynn was lying, were not important.
Therefore, you claim that these were not Brady materials, and not turning them over is not misbehavior by the prosecution.

That is some serious redundant bullshit there. "Corrupt judge declares himself innocent" is not the argument you think it is.

To any rational person, not turning over evidence that you KNOW the person did not a commit a crime while prosecuting him for something you know he didn't do will always be material and important to a case.

[donojack]

Yes, nobody disputes that Flynn has come up with new stories after he hired his nutty new lawyer. But he had previously sworn under oath that there wasn’t any such deal.

I thought this was Believe All Oath Takers Month. So if Flynn swears that he did it three times and then swears he didn't four times does he win? Or maybe we could decide that a coerced plea deal comes with sworn statements that may be false but are required to get the deal.

[donojack]

Don’t you mean evidence that Flynn lied? Flynn swore under oath that there was no such threat or side deal.

From "Declaration of Michael Flynn" 1/29/20

My former lawyers from Covington also assured me on November 30, 2017, that if I accepted the plea, my son Michael would be left in peace. After I signed the plea, the attorneys returned to the room and confirmed that the SCO would no longer be pursuing my son.

[David Nieporent]

Yes, nobody disputes that Flynn has come up with new stories after he hired his nutty new lawyer. But he had previously sworn under oath that there wasn't any such deal.

[NoobyNoobyDoo]

When Sullivan accepted Flynn's guilty pleas, he actually made a huge error.

He never verified that the purported lie was material. This is in the transcript.

There was a CI investigation opened on Flynn. The FBI decided to close it after finding zero derogatory info. Only a single signature was needed for the process to be completed. Then the 7th floor used the slow pace of the completion of the process to say they could interview Flynn after his phone call, except there was nothing illegal about the phone call. The incoming NSA was expected to talk to dozens of foreign leaders. If there was nothing illegal with the phone call, then there was no legitimate investigative purpose based only on that phone call. And the phone call was the only new event after they had already found zero derogatory info.

If you want claim just being in Trump's orbit and adding Russia into the mix makes the fact that the NSA had a totally legal phone call material, you're now in Russia hoax territory. Here's the dirty secret that people won't admit... There's still no evidence of any collusion between Trump & Russia. None.

But that's actually a red herring... They did not use any other open investigations as justification, they used the CI investigation that already found no derogatory info & was set to be closed. A totally legal phone call does not suddenly change that, especially when you have the transcript, which shows nothing illegal or even questionable.

How can Sullivan know all Brady material was turned over? He didn't do the searching. He was lied to by the corrupt prosecutors. We know this because the DOJ has now turned over a LOT of Brady material.

If you're going to accuse someone of dishonesty, maybe don't try to say the new documents were not Brady. They squarely are.

Plea deals are expected to include all aspects of the agreement between the accused and prosecutors. In this case, the prosecutors had a side deal with Flynn's lawyers that they would not charge Flynn's son if he accepted the deal. That was NOT documented in the plea deal as it's required to be. Evidence of this "lawyerly understanding" was (eventually) turned over by the Covington lawyers.

A plea deal made under duress by prosecutorial abuse is not evidence of guilt.

[David Nieporent]

If there was nothing illegal with the phone call, then there was no legitimate investigative purpose based only on that phone call.

Setting aside whether there was something illegal about the phone call, this is wrong. Materiality does not turn on whether a crime has been committed.

If you want claim just being in Trump’s orbit and adding Russia into the mix makes the fact that the NSA had a totally legal phone call material, you’re now in Russia hoax territory. Here’s the dirty secret that people won’t admit… There’s still no evidence of any collusion between Trump & Russia. None.

Even if that were true, it's irrelevant, because for the purposes of materiality we don't judge in hindsight. The issue is whether it's material to a matter before the government, not to a prosecution.

How can Sullivan know all Brady material was turned over? He didn’t do the searching. He was lied to by the corrupt prosecutors. We know this because the DOJ has now turned over a LOT of Brady material.

Incorrect. They did turn over some additional documents; none of it was Brady related. You might want to check Barr's motion to dismiss the case. It does not allege any such misconduct by the government.

If you’re going to accuse someone of dishonesty, maybe don’t try to say the new documents were not Brady. They squarely are.

Not even close. He was charged with lying about the phone call. None of the supposedly new documents (most of which were not new) speak to whether he lied about the phone call.

In this case, the prosecutors had a side deal with Flynn’s lawyers that they would not charge Flynn’s son if he accepted the deal.

That's not what Flynn said under oath; he said there was no such deal.

Evidence of this “lawyerly understanding” was (eventually) turned over by the Covington lawyers.

False. The documents say that there wasn't a deal.

[David Nieporent]

So just as long as it is the “right” person you are fine with blatant abuses of power and entrapment. When it comes your time to stand in the dock I hope your oppressors are more kind for your sake…

Sigh. Once again: entrapment is a real world with a real meaning. It's not just a MAGA twitter word for "bad things that happen to Trumpkins." Nothing in what happened is within the same zip code as entrapment.

As for "abuse of power," that's too vague to refute, but nothing about the treatment of Flynn was unusual. What this claim translates to is "Politically-connected white people shouldn't be treated like this."

[donojack]

"What this claim translates to is “Politically-connected white people shouldn’t be treated like this.”"

Oh please. Many of us are here because of a shared concern about government abuse of power, whether it's Presidents, prosecutors, judges, or cops. You used to be in that camp. I guess when they stole your "M" they also took your moral compass.

[loki13]

"I guess when they stole your “M” they also took your moral compass."

HAHAHAHAHAHAHAHAHAH!

Oh. My. God.

Donojack, who sold out his country, his integrity, and what little bit of common sense he had so that he could genuflect at the altar of Trump, is accusing ohter people of lacking a moral compass?

What, why don't you drink some bleach and disinfect yourself away from the rest of us? KTHXBYE!

[donojack]

Good comment nutjob.

[Sarcastr0]

Loki's tone is Loki's tone. He can police that as he will.

I note that you're making it far more personal than you need to. DMN has not made any moral judgement; he's keeping things pretty factual.
Take issue with his facts, but it's pretty shabby to declare him immoral.

[donojack]

Sarcastro,

I'll keep that in mind. Decent point.

[Sarcastr0]

Good on ya.

We mix it up, but it is worth some attention to ensure you're attacking comments, not people.

[Dilan Esper]

It's not entrapment. I fully understand that.

But there are policy arguments against using false statement laws to manufacture crimes, and rather than harping on terminology, you should understand what is really going on.

I don't see the great policy rationale that government agents should try to intentionally get you to lie so they can prosecute you. That's not why we prohibit perjury and false statements. It's an after-effect of such statutes that allows the government to get people they can't prove did the actual crimes.

[David Nieporent]

I don’t see the great policy rationale that government agents should try to intentionally get you to lie so they can prosecute you.

Of course not. The problem is, I can't see any way to write a law that would target only that behavior.

As I pointed out in one of these other Flynn threads recently, there is a reason to ask someone questions to which you already know the answer. My analogy was a wife who knew that her husband had been out at a bar because her friend saw him there and mentioned it. He gets home late from work, and she asks him where he was. If he says, "I was working late," then she has reason to suspect he's having an affair. If he says, "I was at the bar with my co-workers," then there's less reason for concern. In other words, the fact of him lying conveys information — information that she would not get if she said, "I know you were at the bar; what were you doing there?" But that does not mean that she wants him to lie.

In this case, yes, the FBI knew what Flynn and Kislyak had discussed. But they also knew that he had already lied to Pence about it. So they had good reason to approach cautiously and figure out what was going on, rather than just going up to him and saying, "Why did you lie to Pence?" or "Why did you tell the ambassador X?"

And the law can't be "It's not a crime to lie unless you've committed an underlying crime," because (a) there could be someone else's crime they're looking into; and (b) that's saying that the better you are at covering up your crimes, the more freedom you have to lie.

We could say that an element of the offense must be that the lie actually hindered an investigation. That's probably a good idea, although that wouldn't be a very high threshold in practice.

But regardless, the Flynn defenders are not arguing for a change to the law. They're arguing for special treatment for Flynn.

[Bruce Hayden]

Without any limiting principles, you are essentially giving the FBI and DOJ the power to set these §1001 perjury traps whenever they wish.

But that ignores that §1001 has a materiality element. Merely lying to a federal agent is not criminal, unless the lie was material. The DOJ’s position is that for multiple reasons, even if Flynn had been lying to the FBI, it wasn’t material for multiple reasons. And having lied to Incoming VP Pence didn’t make it material.

Of course, DD McCabe’s lies to Flynn were intentional, and material to a federal investigation...

[Flatulus]

Did you know that Barack Obama is a white supremacist who repeatedly flashed the white power hand gesture during his presidency? Join us at Democratic Underground for more revelations!

[Jimmy the Dane]

"Racism...." when you have nothing else to argue pull out this good old fashion strawman...

[Rev. Arthur L. Kirkland]

That's a great comment at a blog whose proprietor shamefully uses a racial slur every chance he gets.

[Commenter_XY]

The Forward? Really? C'mon Sarcastr0.

[Sarcastr0]

I don't know from the Forward. I just pasted the first link in Google.

Feel free to do your own research.

[Jimmy the Dane]

Was that your research strategy for "clown world" too?

[Sarcastr0]

I know Clown World because I listen to podcasts about the very silly alt-right.

How do you know Clown World? Unless you listen to the same podcasts I do, not a lot of places you could have gotten it from, and they're all pretty unsavory.

[TwelveInchPianist]

"…Are you aware you’re using a white supremacist meme, there, chief?"

Yeah, OK.

Where on the White Supremacy Triangle does it fall? Up around lynching, or down around saying we're just one human family.

[Dr. Ed]

I'm reminded of the story about the little boy who cried "wolf'...

Someday, some real White Supremacists will show up and no one is going to care. And if The Forward didn't lean so damn far to the left, it might have been able to explain what it was that the purported "White Supremacists" were actually protesting.

[Sarcastr0]

Or, on the other side, throwing out dog whistles and thinking you'll get away with it is shabby behavior, and I'm going to let people know when some piece of crap is playing footsie with white supremacists.

Or when they go to bat for segregation.

[TwelveInchPianist]

"I’m going to let people know when some piece of crap is playing footsie with white supremacists."

OK, but are they playing footsy with real white supremacists, or with people who believe in being colorblind? I mean, you're calling somebody out for saying "clown world." Wokeness has made the concept useless.

[Sarcastr0]

LOL I have bad news about the position of Clown World posters and the Jews.

This isn't just wacky trolls digging at affirmative action. This is unmistakable. Plenty of screenshots, if you have the stomach.

[Beldar]

I have a comment in moderation from 7:10 pm that I hope someone will fish out. I'm not sure what kicked it to moderation.

[Sarcastr0]

More than a single link does that.

I've had a few make it out, but I would abandon hope and repost suitably edited, I'm afraid.

[Beldar]

Thanks, Sarcastr0, that sounds like a good suggestion. Herewith, with but a single hyperlink:
----------
As an example of conflicting commentary about Rule 48:

Former federal prosecutor Andrew McCarthy, writing at National Review (may be paywalled) last week, insisted (italics his):

Moreover, Congress prescribed Rule 48 to protect defendants — exactly the opposite of what Sullivan is doing. Lawmakers were concerned about the potential for prosecutorial misconduct: They wanted to prevent strategic dismissals, where a prosecutor pulled the plug on a case that was not going well for the government, only to recharge it later; they wanted to forbid such abuses as repeatedly charging then dismissing an indictment, exhausting an accused’s resources and capacity to defend himself.

I faulted Mr. McCarthy in comments to his post for incorrectly identifying Congress (rather than the SCOTUS) as the author of Rule 48, having looked no further myself than to the Westlaw version of the rule to confirm that Rule 48 was indeed part of the original Federal Rules of Criminal Procedure as promulgated in 1944, and that Congress hasn't ever used its power to amend or revise this particular rule.

Mr. McCarthy's essay further contends that a federal district judge's entry of dismissal under Rule 48(a) is merely a "ministerial task [to end] the case on the court’s record." Rebutting this, I quoted from the 1944 Advisory Committee's notes a couple of sentences that I'm surprised not to see also quoted in Prof. Frampton's splendid draft article (citations omitted):

The first sentence of this rule will change existing law. The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court, prevails in the Federal courts. This provision will permit the filing of a nolle prosequi only by leave of court. This is similar to the rule now prevailing in many States.

These official notes thus confirm that Rule 48(a)'s leave-of-court requirement was a recognized, intentional change in federal procedural law in 1944 to create discretion where previously there was none. But these notes don't address the subsidiary questions — discretion over what, and within what limits?

Prof. Frampton's article ably tells us what the Advisory Committee thought on those topics. Now we'll see what Judge Sullivan has to say, in what may well be a genuine case of first impression.

[Armchair Lawyer]

Since you asked... (US v Hamm, 1981, 5th circuit)

"We hold that the "leave of court" requirement of Rule 48(a) is primarily intended to protect the defendant against prosecutorial harassment. The district court may not deny a government motion to dismiss a prosecution, consented to by the defendant, except in those extraordinary cases where it appears the prosecutor is motivated by considerations clearly contrary to the manifest public interest.

We continue to hold that even when the defendant consents to the motion to dismiss, the trial court, in extremely limited circumstances in extraordinary cases, may deny the motion when the prosecutor's actions clearly indicate a "betrayal of the public interest." United States v. Cowan, supra, 524 F.2d at 514. As the Supreme Court indicated in Rinaldi, the trial judge must look to the motivation of the prosecutor at the time of the decision to dismiss. As Judge Hill pointed out in his dissent to this court's en banc opinion which was reversed in Rinaldi, "if it should appear that the prosecutor is motivated to dismiss because he has accepted a bribe or because he desires to attend a social event instead of attend upon the court in the trial of the case or because he personally dislikes the victim of the crime, the court should withhold leave." In re Washington, 544 F.2d 203, 212-13 (5th Cir. 1976) (Hill, J., dissenting). Unless the court finds that the prosecutor is clearly motivated by considerations other than his assessment of the public interest, it must grant the motion to dismiss.

[Beldar]

Again, thanks. See my comments upstream with a link to and discussion of Hamm. I agree it's important. But I'm not sure at all that it's dispositive in Flynn's favor; the court-appointed amicus could certainly argue that Flynn's case is instead within the exception language I've italicized in my blockquotes.

[jdgalt1]

I apologize in advance for this stupid layman's question, but why does double jeopardy not apply here?

[Sarcastr0]

This is not a new trial for the offense. It is the same trial.

[Dan Schiavetta]

Exactly right. Thanks.

[Eddy]

So it seems not everyone feels like Mr. Frampton.

https://www.youtube.com/watch?v=U0wVJE3Vf8k

[Pacific]

Perhaps someone will show you the way.

[Brett Bellmore]

This appears to me to be the exact opposite of a powerful and well-connected defendant obtaining a dubious dismissal. Rather, a dubious prosecution has finally been dismissed.

[Michael W. Towns]

I know right? Flynn was bankrupted and railroaded, his son threatened by prosecutors who broke the rules. Powerful and well-connected defendant indeed.

[Jason Cavanaugh]

Railroaded lol.

Voluntarily spoke to the FBI. Voluntarily lied to them. Twice under Oath he admitted that he did these things.

What else did he do? Lobbied for foreign policy favorable towards governments by which he was being paid, without disclosing that he was being paid on their behalf.

Fun fact: Did he receive prior permission for these payments from the DoD, which is required of all prior DoD employees? Nope.

Flynn is a traitor, and has legitimately earned every bit of legal trouble he currently finds himself in.

[NoobyNoobyDoo]

Spoke to FBI agents as colleagues of the Executive branch, who came to him under false pretenses and ignored standard procedure of notifying the DOJ & WH Counsel.

No evidence that he actually lied to them. But actual testimony from Comey & McCabe that the agents did not believe he lied to them. And even if he did lie, no evidence that it was material.

If he was pressured by the power of the government, as they violated his due process rights, drove him into huge debt, and threatened his son... An agreement with a metaphorical gun to your head is no agreement at all.

Lobbying allegations are outside the scope of the stated offense & in no way excuse the FBI & prosecutors violating his due process rights.

[not guilty]

No evidence that he actually lied to them? Are you forgetting that pesky transcript of what Flynn said during his conversation with the Russians?

[David Nieporent]

Twice under Oath he admitted that he did these things.

Wrong. Three times under oath. (Once was in writing. Twice in open court.)

[Eddy]

I'd hate to see how they treat the powerless, obscure defendants.

[NToJ]

They move to dismiss the prosecutions without prejudice, which is precisely why this instance suggests special treatment.

[David Nieporent]

Well, no. They don't move to dismiss the prosecutions at all. When the defendant comes forward with proof of actual innocence, they claim that he should have come forward sooner and therefore forfeited his right to challenge the conviction. Or they claim that even though the proof decisively refutes the prosecution's theory of the case, a different theory of the case that they had never before advanced can't be excluded. Or they'll leverage the fact that the person is sitting in jail to convince him to admit guilt in exchange for time served, so they can preserve their conviction.

[donojack]

This is the David Nieporent I know and love.

[NToJ]

I agree, that happens, and it underscores why Flynn is receiving special treatment. But in the rare cases where prosecutors do move to dismiss under FRCP 48(a), they move without prejudice (sometimes to fuck over the accused, or to bypass their own screw ups for not timely prosecuting). It is very unusual for the government to drop its own case, much less drop its own case with prejudice.

[Dan Schiavetta]

He did lie under oath. Trump admitted that’s why he fired him.

Waiting for your comment about the Clinton impeachment, which involved a lie about a non-state matter from years before.

[donojack]

He didn't lie under oath at the FBI interview and Trump fired him because the FBI showed the edited 302 to McGahn leading him to think that Flynn had lied to Pence. Maybe you can make a case that he lied under oath about lying but that's it.

[David Nieporent]

He didn’t lie under oath at the FBI interview

Right; he lied in a way that is exactly as criminal as lying under oath, but without being under oath.

Trump fired him because the FBI showed the edited 302 to McGahn leading him to think that Flynn had lied to Pence.

Presumably if that were really true Flynn would have said to Trump, "No, I didn't lie; I just misremembered a short conversation." And Trump, who handpicked Flynn, would have looked him in the eye and then said, "Okay; I believe you. I'm certainly not going to let you go just because this guy I don't even know claims you lied."

(Ha, I kid! Trump would've tweeted, "Fakenews!!!! Flynn is a great general who would never lie!!!!" But the point stands. Nobody believed Flynn.)

[donojack]

What does Sarcatro call that? Oh yeah fan fic.

[Sarcastr0]

If DMN were positing that as what actually happened, that'd be true.

[Armchair Lawyer]

David,

What precisely, exactly did he (Flynn) lie about? What were his exact words that were a lie?

[David Nieporent]

He precisely, exactly lied about… well, I'll let him explain it:

"Flynn falsely stated that he did not ask Russia's Ambassador to the United States ("Russian Ambassador") to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FLYNN's request."

"FLYNN falsely stated that he only asked the countries' positions on the vote, and that he did not request that any of the countries take any particular action on the resolution. FLYNN also falsely stated that the Russian Ambassador never described to him Russia's response to FLYNN's request regarding the resolution."

That's not everything, of course.

"I have read every word of this Statement of the Offense, or have had it read to me. Pursuant to Federal Rule of Criminal Procedure 11, after consulting with my attorneys, I agree and stipulate to this Statement of the Offense, and declare under penalty of perjury that it is true and correct."

[donojack]

Obviously a traitor. He also lied when he said the phone call was on the 28th of December instead of the 29th and that the call lasted about ten minutes when it actually lasted twelve. He also lied when we referred to Kisylak as Dmitry rather than Sergey.

[Armchair Lawyer]

I see...

"FLYNN also falsely stated that he did not remember a follow-up conversation"

Saying "I don't remember" is now somehow a lie that can be prosecuted by the FBI for a false statement charge.

You really want to stick with that?

[Noscitur a sociis]

Flynn told the FBI that 1. He had not asked Kislyak not to escalate the Russian response to the Obama administration's sanctions; 2. He did not remember having the conversation with Kislyak when he stated Russia had in fact moderated its response to sanctions as a result of that request; 3. He had not tried to influence any other countries' votes on a planned UN resolution; and 4. He had not learned of Russia's planned response in reaction to his lobbying. He admitted under oath that these statements were all lies (that is, that they were not true and that he knew that they were not true when he made them).

https://www.justice.gov/file/1015126/download

[Armchair Lawyer]

"I don't remember"

Clearly a lie worthy of prosecution. I don't even know what to say about that.... This defies belief that this was put in there.

[David Nieporent]

The argument that Rule 48 was meant solely to protect defendants from prosecutorial harassment is a strange one. It's a very weird way to write such a protection into law. If they didn't want prosecutors dismissing and then refiling charges, they could have

(a) made all dismissals with prejudice; or
(b) required leave of court to dismiss charges without prejudice; or
(c) required leave of court to refile charges.

Any of those would more directly target the evil they were trying to protect than requiring leave of court to dismiss all charges, but then granting the court no discretion to reject the dismissal.

[David Nieporent]

To be clear, I am not saying that Rule 48 doesn't protect defendants from harassment; I am saying that this is not all it does.

[Dilan Esper]

My argument has always been that 2 words from the fricking constitutionally unimportant Rules Committee are not enough to strip valuable rights away from criminal defendants.

If we want to have prosecutions continue without prosecutors, Congress has to authorize it and it can't be an Article III judge carrying it out. That position is consistent with Morrison v. Olson, Buckley v. Valeo, and other Supreme Court cases saying that prosecution is a core executive power.

The notion that a stupid appointed committee can strip an important constitutional protection from criminal defendants is just awful. They should have asked Congress to create a procedure, as should be done now. Congress can create independent counsels that can't be fired by DOJ. That's the way to handle this situation.

[NToJ]

A judge's refusal to dismiss (which isn't going to happen in this case, anyway) is not a demand that the prosecution continue without prosecutors.

[TheAmazingEmu]

I agree with you in principle that a court can't take over a prosecution. If the court refuses to dismiss a charge and the prosecution still has the burden to establish guilt beyond a reasonable doubt, the prosecution can simply refuse to present evidence and the Judge has to acquit.

But that's hardly relevant in a case where a defendant has already entered a plea of guilty. At this point, the facts necessarily to establish guilt have been stipulated to or conceded. The only thing left at that time is sentencing, which is a core judicial function, not prosecutorial function.

[Alpheus W Drinkwater]

Dilan Esper, I understand and agree with your point. In this case, though, Gen. Flynn has pled guilty and is awaiting sentencing. Does that change the calculus of constitutional rights for criminal defendants? Isn't it technically out of the prosecutor's hands, at this point, and into the judge's?

[SKofNJ]

Assuming, as certainly seems to be true in the Flynn matter, that the government's dismissal motion does not prejudice any right belonging to the defendant, why wouldn't separation-of-powers principles trump a court rule purporting to give a court the authority to overrule the government's decision not to pursue even an already instituted prosecution?

[Nick Gillespie's Jacket]

Penny for your thoughts? Leave of court is synonymous with permission of the court. I haven’t heard anyone say what power the judge has to deny leave for a dismissal, or what happens if he does? I assume he can’t appoint a special prosecutor to prosecute the case notwithstanding the feds wanting to dismiss, right? (That would seem to turn the constitutional protections of the defendant on their head.) Now maybe he can make the feds pay the defendant’s fees; but that’s unlikely here where the judge’s apparent issue is the prosecutor cutting the defendant a favor, rather than having been unfair to defendant. So what choice does the judge have re: granting or denying leave?? If no choice, then delaying and appointing amici to write a brief blasting DOJ that will have no legal impact seems imprudent.

Can anyone else see the DOJ seeking a writ from DC Circuit or SCOTUS to force the judge to dismiss promptly?

In any event, I wish commentators would spend a couple of sentences telling the readers whether the judge actually had the power to deny leave, and if so what happens then. Thanks

[Dilan Esper]

I assume he can’t appoint a special prosecutor to prosecute the case notwithstanding the feds wanting to dismiss, right? (That would seem to turn the constitutional protections of the defendant on their head.)

I'm glad someone else actually spotted the problem here.

And remember, while IN THIS CASE it is after a guilty plea, nothing in the Rules Committee's plainly unconstitutional text is limited to post-guilty plea situations. They were apparently perfectly OK with stripping a defendant's constitutional right to an impartial Article III judge and separate Article II prosecutor even BEFORE trial.

[donojack]

There is also evidence that his original attorneys from Covington and Burling misled him when he asked them just before he signed the plea deal if the agents at the interview thought he had lied. They said that the agents "stand by" their original statements, leading him to think that they thought he had lied when it was the opposite. C&B were urging him to sign the deal possibly because they had some exposure through representing him with his FARA filing.

[donojack]

Should have gone under Nooby's comment @ 8:59

[Sarcastr0]

The Federalist is not a great source for legal analysis.

[David Nieporent]

There is also evidence that his original attorneys from Covington and Burling misled him when he asked them just before he signed the plea deal if the agents at the interview thought he had lied.

The only "evidence" to that effect is something Flynn claimed two years later, contradicting things he said multiple times under oath, after he hired a conspiracy theorist to represent him.

The fact that Barr has tried to manuever to avoid having this "my lawyers rendered ineffective assistance of counsel" defense actually be adjudicated speaks volumes for its credibility.

[Eddy]

If the very branch of government responsible for prosecuting this case has lost confidence in the case, then - if I may ask a naive question - how can the case be considered settled beyond a reasonable doubt? Especially since a trial jury never looked at the evidence.

And if the executive wants the case thrown out, why not do it in a way which *prevents* the charges being renewed at a later date - eg, under a Biden or Abrams administration? From comments here, I am given to understand that even if the dismissal were granted, the prosecution would retain the option of refiling the charges. What about double jeopardy? What about speedy trial? Are these simply incantory phrases in our civil religion, unconnected to how cases are actually resolved in the real world.

All this indicates to me that, if the executive *actually* believes that the charges are bogus, then a Presidential pardon would be the way to resolve the matter.

[Sarcastr0]

Prosecutors have recanted when those they prosecuted were still serving time in jail. Guess what happens?

Lets suppose this was a corrupt decision by the DoJ done at Trump's behest. Certainly that might put a spanner into your assumptions, no?

Don't mix up what's legal with what's factual. Acquittal doesn't mean they didn't do it, either.

[Eddy]

"Acquittal doesn’t mean they didn’t do it"

Why don't you talk someone who believes that.

I mean, even professors on this blog, not to mention several commenters, have claimed that you have misstated their position. At some point you need to ask if they are *all* trying to "backtrack" on something they actually said, or whether maybe their criticisms are accurate.

I believe that if there's no proof beyond a reasonable doubt, or if you're actually innocent, you should be acquitted. The causal relationship, in other words, goes the other way.

[Sarcastr0]

You're thesis requires a factual connection between the DoJ withdrawing it's case and factual innocence. That both begs the question and is not always correct.

[Eddy]

You said

“Acquittal doesn’t mean they didn’t do it”

So what? When did I say that?

[Eddy]

And you misspelled "your."

[Sarcastr0]

That is an example of how what the law is does not always equal what the facts are.

[Eddy]

So what? When did I make the remarks you attributed to me?

[Sarcastr0]

if I may ask a naive question – how can the case be considered settled beyond a reasonable doubt?

This is a question about the connection between the legality and the facts on the ground. There is no such connection once the law gets moving.
An example of that is that acquittal says nothing about factual guilt or innocence. Another example is that factual innocence says nothing about whether you get a new trial.

[Eddy]

Strangely, you purport to agree with me.

I said

"I believe that if there’s no proof beyond a reasonable doubt, or if you’re actually innocent, you *should* be acquitted." [emphasis added]

Now, according to the dictionary, "should" can be used "to express obligation, propriety, *or expediency*." [emphasis added]

https://www.merriam-webster.com/dictionary/should

[Eddy]

"Prosecutors have recanted when those they prosecuted were still serving time in jail. Guess what happens?"

I don't know - a unicorn sheds a tear or something?

[Sarcastr0]

The convicted stays in jail.

Actual innocence - the threshold to get a new trial - is really hard to prove under the law.

Your argument is about factual innocence, a much lower threshold and one that the law has again and again recognized as not something the law cares about.

You want to argue that should be different, I agree with you. But if you want to argue Flynn gets an exception, then learn your law.

[Eddy]

"if you want to argue Flynn gets an exception"

I didn't say Flynn should get an exception from any legal rule, I said he should get a pardon.

Now, what special legal rule can you discover which prevents him from being pardoned?

[Sarcastr0]

Your entire 11:18 am argument is about Flynn getting an exception due to the lack of a trial, plus double jeopardy and speedy trial. None of which apply here. Dude waived a trial when he plead, and if he reverses his conviction, why can't the government change it's mind yet again?
Not that a new DoJ would take the trouble absent new facts.

I usually leave the facts-based fisking to the practicing lawyers, but I made something of a study of criminal justice reform in law school. The things you're protesting are not illegitimate, except that I've only ever seen them with Flynn, and you don't reform an unfair system by giving Trump's buddies special treatment.

[Eddy]

I'm not going to spend a great deal of time knocking down every one of your straw men. Eg, "an exception due to the lack of a trial" and all that other nonsense Perhaps you can appoint an amicus curiae to espouse the views you keep misattributing to other commenters and to professors on this blog, then you can have a great argument with them and leave us out of it.

In my 11:18 post I said

"All this indicates to me that, if the executive *actually* believes that the charges are bogus, then a Presidential pardon would be the way to resolve the matter."

Now, the only "exception" to the President's power to pardon offenses against the United States has to do with cases of impeachment. So he can't stop Flynn from being impeached. Otherwise the Constitution is quite broad and I've already shown Story's view that the pardon power benefits innocent and guilty alike.

And once a Democrat becomes President, (s)he will I'm sure grant pardons to all those worthy recipients who aren't Trump's buddies.

[Sarcastr0]

You keep protesting strawman and I keep showing you how you're incorrect. It's like strawmanception.

I've taken no issues with what the Conspirators have said on Flynn.

Your argument above is not about pardons until the final paragraph. My argument never mentions pardons. So consider that my issue was with all the rest of what you wrote.

[Eddy]

"my issue was with all the rest of what you wrote"

Your issue was with a bunch of straw men. One of the Conspirators, and other Volokh commenters, have complained of this tendency on your part.

[Eddy]

And of course there are the views of this guy:

https://reason.com/2017/08/26/is-accepting-a-pardon-an-admis/

[Eddy]

"factual innocence...not something the law cares about...learn your law"

Gosh, I look forward to your refutation of Joseph Story and his legal ignorance:

"Would it not be at once unjust and unreasonable to exclude all means of mitigating punishment, when subsequent inquiries should demonstrate, that the accusation was wholly unfounded, or the crime greatly diminished in point or atrocity and aggravation, from what the evidence at the trial seemed to establish? A power to pardon seems, indeed, indispensable under the most correct administration of the law by human tribunals; since, otherwise, men would sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors and courts."

https://www.constitution.org/js/js_337.htm

[Sarcastr0]

A pardon has zero to do with actual innocence. Or innocence at all.

Though taking a pardon has been held to require that you admit guilt.

[Eddy]

OK, then, even if the Supreme Court's 1915 precedent was that tribunal's last word on the subject, I have more respect for the precedent set by Thomas Jefferson when he pardoned the victims of the Sedition Act, few of whom, of course, admitted they had broken any constitutionally valid law - indeed most of them unrepentantly insisted that they had done nothing illegal - and strangely, the courts did not reinstate the sentences but respected the President's decision.

But pretending that this is some kind of fully-settled issue is not helpful.

[Sarcastr0]

You can certainly believe whatever you want.

The law of the land is Burdick.

[Eddy]

"Executive clemency has provided the "fail safe" in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after discovered evidence establishing their innocence."

https://www.law.cornell.edu/supct/html/91-7328.ZO.html

[Eddy]

And of course there are the views of this guy:

https://reason.com/2017/08/26/is-accepting-a-pardon-an-admis/

[Sarcastr0]

You're mixing up legal and factual again, Eddy.

[Eddy]

I can't do it "again" since I never did it in the first place.

[TwelveInchPianist]

Burdick didn't hold that accepting a pardon required that you admit guilt. Afaik, no one has ever been required to admit guilt to benefit from a pardon. Burdick contains dicta that says that accepting a pardon "implies" or "carries" a confession of guilt. I'm not sure what Justice McKenna meant by that, but it's not law and it's never been the case that someone has to confess guilt in order to accept a pardon.

[Sarcastr0]

And the only way to avoid the imputation of guilt is to refuse the pardon.

[TwelveInchPianist]

"And the only way to avoid the imputation of guilt is to refuse the pardon."

No, you can accept the pardon and deny that you're guilty.

[Sarcastr0]

You can say it all you want, but your legal status is guilty.

[TwelveInchPianist]

"You can say it all you want, but your legal status is guilty."

I'm not sure that this has any meaning.

[TwelveInchPianist]

"Though taking a pardon has been held to require that you admit guilt."

This is flat wrong.

[Sarcastr0]

I literally learned that in law school. It's a big deal because your refusal allows you to maintain your Fifth Amendment protections.

[TwelveInchPianist]

Yes, you can refuse a pardon, but that doesn't mean that accepting a pardon requires you to confess.

[Eddy]

"I literally learned that in law school."

Prof. Volokh went to law school, yet see his article cited above.

The Justices who wrote the following also attended law school:

“Executive clemency has provided the “fail safe” in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after discovered evidence establishing their innocence.”

https://www.law.cornell.edu/supct/html/91-7328.ZO.html

[Eddy]

You ought to cite the specific language of what was said in Burdick, and maybe the reader will understand why many people shrink from the implications of the court's dictum - implications which the court spelled out very specifically -

"Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected,—preferring to be the victim of the law rather than its acknowledged transgressor,—preferring death even to such certain infamy. This, at least theoretically, is a right, and a right is often best tested in its extreme."

https://www.law.cornell.edu/supremecourt/text/236/79

The court's hypothetical does not seem to apply to a pardon issued on the ground of innocence, or on the ground that guilt has not been adequately established. But even if the hypothetical conjured by the court included a pardon specifically based on innocence, it does not apply to the case before the court, in which President Wilson tried to use the pardon power to overcome a witness's plea of self-incrimination, without saying the witness was innocent. While an innocent person can take the Fifth, accepting President Wilson's pardon would, in the practical circumstances of that case, been open to an interpretation of admitting guilt.

So the decision was merely advisory as far as it related to a pardon based specifically on innocence or lack of evidence. Which may be one reason the decision is not invoked by intelligent people as the self-evident law.

[Eddy]

Indeed, in 1927, the Supreme Court dealt with an actual case of the president commuting a death sentence and the prisoner asserting a right to refuse the commutation.

The President, it was held, could indeed spare the defendant's life against the defendant's wishes - if only by commuting the sentence to imprisonment.

https://www.law.cornell.edu/supremecourt/text/274/480

The Court said that it would not "require [the Presidnet] to permit an execution which he had decided ought not to take place unless the change is agreed to by one who on no sound principle ought to have any voice in what the law should do for the welfare of the whole."

[rsteinmetz]

While the article does provide an alternate view of the rule, the analysis is underwhelming. The reliance on Woody seems a little overblown. Mr. Woody apparently embezzled around $200 (a little over $3,000 in 2020 dollars) The money was repaid. While the Judges opinion in that case takes issue with the actions of the prosecutors it seems like a fairly routine modern plea agreement for full restitution and loss of his job.