The Michael Flynn case took a remarkable turn last week when the presiding federal judge, Emmet Sullivan, appointed retired federal judge John Gleeson, to file a friend-of-the-court brief with respect to whether Flynn should be held in contempt of court because of possible perjurious in-court statements.  The debate is now centered on whether Sullivan has overstepped his authority.  In this post, I will briefly examine the constitutional and legal issues surrounding this controversy.

By way of quick background, Flynn pled guilty in Judge Sullivan’s court to the federal crime of lying to agents of the Federal Bureau of Investigation.  Before Flynn was sentenced, he retained new lawyers, and they have tried to withdraw Flynn’s earlier guilty plea.  At first, federal prosecutors opposed that move, but Attorney General William Barr, after reviewing the case, concluded that Flynn’s case had been handled improperly and so intervened and moved to dismiss the case entirely.  Judge Sullivan must now decide what will happen next.  By asking to hear arguments about his power to hold Flynn in contempt of court, Sullivan appears to be poised to punish Flynn with judicial power—and that raises delicate questions concerning the constitutional boundary between executive power and judicial power.

I. Separation of Powers

Before getting into the specifics of the Flynn case, it will be useful to get some perspective.  Each day there are thousands of instances where the police decline to make lawful arrests.  And thousands of arrests are dropped before ever reaching a prosecutor.  That’s because police supervisors screen the arrests of their patrol officers and many cases are quickly dropped.  Of the cases that do reach the desks of prosecutors, some are screened out immediately and some are dropped later on.  There are a variety of reasons for those so-called “declinations,” which can range from weak evidence, to illegal search, to inadequate resources.  Judges do not intervene to revive cases that were dropped—they are busy enough with the cases that survive the early screening process.

Beyond the caseload pressure, however, is the more basic constitutional role assigned to judges.  In some countries, such as France, judges conduct investigations to uncover wrongdoing.  America has a different model, which is often referred to as the “adversary system.”  The prosecution and defense present their cases before a neutral judge who oversees the process and an impartial jury will then try to resolve the case by finding a just outcome.  

The adversary model is not simply a policy choice that can be modified or tinkered with by lawmakers; it is built into the constitutional architecture.  Under the American Constitution, the executive branch holds the power to investigate and prosecute crimes.  The judicial branch cannot invade the executive sphere without violating the separation of powers principle.  That was understood from the early days of the Republic.  In 1801, for example, two judges on the Circuit Court for the District of Columbia, instructed the local district attorney to institute a libel action against the editor of the National Intelligencer for publishing a sharp attack on the federal judiciary.  The district attorney objected to the interposition of the court, and refused to follow the judicial instructions.

II. Rule 48

The Flynn case raises different, but related issues.  Judge Sullivan did not initiate the case against Flynn.  Executive branch agents from the Department of Justice filed the indictment and thus brought the matter to Sullivan’s courtroom.  One must therefore examine the legal interplay between the executive and the judicial branches in the context of an on-going legal case.

According to Rule 48(a) of the Federal Rules of Criminal Procedure, “the government may, with leave of court, dismiss an indictment, information, or complaint.  The government may not dismiss the prosecution during trial without the defendant’s consent.”  Since Flynn pled guilty, there is no trial underway, so the second sentence does not apply.  The crux of the current controversy turns upon what the rule means by “with the leave of the court.”  Even though both parties, Flynn and Attorney General Barr (representing the Department of Justice) want the case dismissed, can Judge Sullivan deny the motion under Rule 48? 

Federal appellate courts have already had to address related controversies under Rule 48.  Here are some excerpts from a 2003 case:

Kenneth Bitsky, the defendant in the case … was indicted on one count of violating 18 U.S.C. § 242 (deprivation of civil rights under color of law) and two counts of violating 18 U.S.C. § 1512(b) (3) (obstruction of justice). According to the indictment, Bitsky, a Wisconsin police officer, had assaulted an arrested person and had then tried to induce another officer to write a false arrest report justifying Bitsky's use of force and had threatened still another officer in an effort to prevent her from informing on him. The government and Bitsky made a plea agreement under which he would plead guilty to one of the obstruction of justice counts and the government would dismiss the other two counts. At the sentencing hearing the district judge asked the prosecutor why the civil rights count, for which the sentencing range was 24 to 30 months, was being dropped, when the sentencing range for the count to which Bitsky had agreed to plead guilty was only 6 to 12 months. (Both ranges were computed on the basis of a two-level decrease in the base offense level for acceptance of responsibility.) The prosecutor explained that his main aim was to get a felony conviction, which would bar Bitsky from remaining in law enforcement, without the risk of a trial, which might result in Bitsky's being acquitted. The judge rejected the plea agreement on the ground that the one count of which Bitsky would be convicted if the agreement were accepted did not reflect the gravity of his actual offense. U.S.S.G. § 6B1.2(a).

Bitsky decided to go ahead and plead guilty even though he no longer had the protection of a plea agreement. The judge accepted his plea and, after denying him an acceptance-of-responsibility deduction, sentenced him to 16 months in prison, the top of the guideline range without such a deduction. The government then filed a motion to dismiss the other two counts. The district court dismissed the other obstruction of justice count, but refused to dismiss the civil rights count and instead appointed a private lawyer to prosecute it.

In response, the government sought the extraordinary “writ of mandamus” from the court of appeals to essentially overrule the district court judge by dismissing the civil rights count and by rescinding the judicial appointment of a private lawyer to prosecute that count.  The three-judge panel unanimously agreed with the government that the district judge had overreached.  Here are excerpts from Judge Richard Posner’s opinion:

It is true that Rule 48(a) of the Federal Rules of Criminal Procedure requires leave of court for the government to dismiss an indictment, information, or complaint—or, we add, a single count of such a charging document. United States v. Delagarza, 650 F.2d 1166, 1167 (10th Cir. 1981) (per curiam); 3A Charles Alan Wright, Federal Practice and Procedure § 811 (2d ed.1982). But the purpose, at least the principal purpose, is to protect a defendant from the government's harassing him by repeatedly filing charges and then dismissing them before they are adjudicated. Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S. Ct. 81, 54 L. Ed. 2d 207 (1977) (per curiam)…  In such a case the judge might rightly condition dismissal on its being with prejudice. United States v. Derr, 726 F.2d 617, 619 (10th Cir. 1984); United States v. Towill, 548 F.2d 1363, 1369-70 (9th Cir. 1977). There is no issue of that sort here. The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department's exercise of prosecutorial discretion. As he explained in his response to the petition for mandamus, he thinks the government has exaggerated the risk of losing at trial: "the evidence was strong and conviction extremely likely." The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.

In re United States of America, Petitioner, 345 F.3d 450 (7th Cir.  2003).

Judge Gleeson co-authored an op-ed in the Washington Post that intimated another basis to deny a motion to dismiss.  If Attorney General Barr is acting corruptly by simply following the commands of a president with questionable motives, the court could deny the motion to dismiss because it would be “contrary to the public interest.”  Judge Posner cautioned against such a move, noting both the absence of precedent and the thorny separation-of-powers problem:

We are mindful of speculations in some judicial opinions that a district judge could properly deny a motion to dismiss a criminal charge even though the defendant had agreed to it. These opinions say that such a motion should be denied if it is in bad faith or contrary to the public interest, as where "the prosecutor appears motivated by bribery, animus towards the victim, or a desire to attend a social event rather than trial." In re Richards, supra, 213 F.3d at 787. The "bad faith or contrary to the public interest" formula is also found, though not necessarily in those words, in Rinaldi v. United States, 434 U.S. 22, 30, 98 S. Ct. 81, 54 L. Ed. 2d 207 (1977) (per curiam)… We are unaware, however, of any appellate decision that actually upholds a denial of a motion to dismiss a charge on such a basis. That is not surprising. The Constitution's "take Care" clause (art. II, § 3) places the power to prosecute in the executive branch, just as Article I places the power to legislate in Congress. A judge could not properly refuse to enforce a statute because he thought the legislators were acting in bad faith or that the statute disserved the public interest; it is hard to see, therefore, how he could properly refuse to dismiss a prosecution merely because he was convinced that the prosecutor was acting in bad faith or contrary to the public interest.

The Constitution does place judicially enforceable limits on the powers of the nonjudicial branches of the government—for example, the government may not make its prosecutorial decisions on racially discriminatory grounds—but they are the limits found in the Constitution and thus do not include "bad faith" and "against the public interest." Custom, limited prosecutorial resources that compel prioritizing prosecutions, federal criminal statutes that overlap with each other and with state criminal statutes, plea bargaining, and the federal sentencing guidelines themselves combine to lodge enormous charging discretion in the Justice Department, to the occasional frustration of judges—yet without giving rise to any judicial remedy. See, e.g., United States v. Batchelder, 442 U.S. 114, 123-24, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979); The Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L. Ed. 196 (1868).

Paradoxically, the plenary prosecutorial power of the executive branch safeguards liberty, for, in conjunction with the plenary legislative power of Congress, it assures that no one can be convicted of a crime without the concurrence of all three branches (again, criminal contempt of judicial orders constitutes a limited exception). When a judge assumes the power to prosecute, the number shrinks to two.

345 F. 3d at 453.

Judge Gleeson wants Flynn to be punished because he lied to the FBI.  Since Flynn admitted to his lies, by virtue of his guilty plea, Gleeson argues, there is no valid reason to dismiss the case.  That is a very weak proposition.  Honest people can disagree about the propriety of certain law enforcement tactics, such as entrapment.  Some recoil at the idea that a person can be punished for conduct that the police themselves have instigated. And that, of course is one of the central arguments that the Flynn defense team has been advancing—e.g. that Flynn was basically “set up.”  The key point here is that Attorney General Barr (and evidently President Trump) has been so persuaded.  Judge Gleeson and Judge Sullivan do not have to agree with that conclusion in their private, personal capacities, but they must accept it in their official judicial capacities.

Under the American Constitution, the three separate branches are expected to clash with one another.  Even still, judges expect presidents to respect their rulings even when a strong disagreement exists.  The reverse is equally true: judges must respect the prerogatives that fall within the constitutional boundaries of the executive branch in Article II.  The prerogative to prosecute, or not prosecute, is one of those prerogatives.


Please dial in for our teleforum call on Thursday, What's Next In the Flynn Case?