What's Next in the Flynn Case?

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Dean Reuter:  Welcome to The Federalist Society's practice group teleforum conference call as today, May 21, 2020, we discuss “What’s Next in the Flynn Case?” I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as a podcast and will likely be transcribed.

 

      We’re very pleased to welcome three guests to our call today, and we’re going to proceed with a moderated interview, back-and-forth kind of session, a little bit of a free-for-all. I’m going to turn things over to Professor John C. Yoo. He is the Emanuel S. Heller Professor of Law at the University of California at Berkeley’s School of Law. He’s also the author of the forthcoming book, Defender in Chief: Donald Trump’s Fight for Presidential Power which is out July 28th but available for preorder now on Amazon and presumably every other place you can order a book. With that, John Yoo, the floor is yours.

 

Prof. John C. Yoo:  Dean, thanks very much. Thanks for mentioning the book. Glad that we have another edition of our telefora on presidential power, impeachment, and the Trump administration. And today, it’s my great pleasure to introduce my -- almost my co-host now, John Malcolm, who is the Vice President at the Institute for Constitutional Government and the Director of the Meese Center at The Heritage Foundation; and our new co-triple-host, Bill Otis, who’s an Adjunct Professor of Law at Georgetown University and a former Special White House Counsel for President George H. W. Bush.

 

      And it’s really great to get them both here because Bill is calling in from the Big Island of Hawaii, probably the best place to spend the pandemic shutdown. So welcome, Bill.

 

Prof. William Otis:  Thank you.

 

Prof. John C. Yoo:  And John’s here, and John is coming to us finally, I’m proud to say, beardless. He is no longer a war reenactor, everybody.

 

[Laughter]

 

      Hopefully, this will persuade The Federalist Society to move to Zoom so that we can someday see the fresh-faced Malcolm rather than just hear rumors of it.

 

      Anyway, welcome, everybody. And let’s just get right to it. So as you, I’m sure, all know, in early May, May 7th, the Justice Department dropped a bombshell. It withdrew its charges against General Michael Flynn. Remember, General Michael Flynn was President Trump’s first National Security Advisor. He, during the transition as a Trump campaign official, had several phone conversations with the Russian ambassador. He was then interviewed by the FBI about those conversations and whether they involved the discussion of sanctions, U.S. economic sanctions on Russia.

 

      The Mueller Special Counsel Investigation later brought charges against General Flynn for lying to FBI agents. General Flynn pled guilty to those charges. However, then, after a review by the U.S. Attorney in St. Louis, who recommended to the Attorney General that those charges be dropped, the Justice Department dropped them. And now we’re awaiting approval by the District Judge, Judge Emmett Sullivan, who has introduced a rather extraordinary procedure where he’s called for amicus briefs and even appointed a retired judge and former federal prosecutor to — retired Judge John Gleeson — to actually conduct the oral arguments opposing the Justice Department.

 

      So let’s start with Bill. And let me ask you, Bill, isn’t this rather extraordinary? This is not one of those cases where the Justice Department is considering charging someone after an investigation. They brought charges and Flynn pled guilty twice before Judge Sullivan. Isn’t that extraordinary? Is there any precedent for the Justice Department actually withdrawing charges after it has essentially won the case with a guilty plea? And does this suggest, as many critics have argued, that this is really the result of political pressure from the White House to save a friend and former campaign official rather than doing justice?

 

Prof. William Otis:  Yeah, it certainly is extraordinary. And there is politics running all through this case, but not in the way that most of the press has suggested.

 

      I think the way to approach is just to ask yourself a question. If Flynn were your father or brother, is this how you would want and expect the FBI to behave in conducting an investigation, to preselect Flynn as a defendant and then stage an interview for the sole purpose of making a prosecution possible, or as an added bonus to get him fired; to evade the normal protocols for interviews with White House personnel, which normally has to be coordinated through the Office of Legal Counsel in the White House and which Director Comey noted, with apparent satisfaction, they managed to evade this time; to tell the prospective defendant that he doesn’t really need a lawyer when he needs one big time; to keep the investigation going after the line agents had concluded that no adverse information had been developed and that the investigation should be closed?

 

      Now, none of those things is illegal, that’s true. But there are standards and protocols of behavior for the FBI, some written down, some just understood, that that agency typically follows and ought to follow. One after another of those protocols got brushed aside in this case, and they got brushed aside for a reason that is particularly ominous to the rule of law as we would like to understand it. It got brushed aside out of political bias and vindictiveness.

 

      Flynn did lie, something that people who take up this cause seem to me to be too reluctant to admit. But the law understands that while the ability to demand the truth is very important, particularly for an investigative agency, there are other values at least equally important. This is why, for example, we have the doctrine of selective or vindictive prosecution.

 

      It’s not that we think that the defendant in those circumstances didn’t do it. It’s that even knowing that he did do it, there are more important interests in the long run about the kind of power we should give prosecutors. Ordinarily, yes, that power is, and it needs to be, very broad. Prosecutors are not dealing, by and large, with Mr. Nicey. But there are limits rooted in commonly held views about kind of government we want, and in particular, the kind of prosecutors and police we want, and the values that should cabin their behavior.

     

      To give two additional examples, if, for example, a jury has been selected on the basis of racially discriminatory strikes against blacks, then the defendant’s conviction cannot stand, no matter how guilty he is or how atrocious the underlying crime was. If the police obtain important information by compelling it from the defendant, again, that defendant’s conviction cannot stand, no matter how guilty he is.

 

      For a long time, these values have been not merely part of our law but part of our culture. They’re an important component of what we understand a free country to be and how we understand very powerful investigative agencies ought to behave in that country.

 

      The bottom line for me is that while Flynn is guilty, as he correctly pleaded, and lying to the FBI is a bad and dangerous thing to do, this was not the kind of investigation American citizens want or should want. Dismissing a prosecution rooted in this much political bile from its beginning to its end was the right thing to do. And contrary to what we hear so much of in the press, it does not sully but instead at least partially restores the kind of Justice Department we want and should expect.

 

      Now, having said all that --

 

Prof. John C. Yoo:  -- John, let me --

 

Prof. William Otis:  -- No, go ahead.

 

Prof. John C. Yoo:  Well, I was going to ask John to follow up on that because I think that the critics would say -- they would agree with you on the principles, but they would say wasn’t there actually sufficient predicate to conduct an investigation? And they said, one, possibly a federal crime was committed, the Logan Act, which prohibits private individuals from interfering with foreign relations. And then the second is even if there’s no crime, isn’t there a proper counterintelligence investigation here? Now, it turned out that they might have been wrong, as the Mueller Report shows. But wasn’t there just enough suspicion here to investigate members of the Trump campaign for some kind of shenanigans with the Russians? I’ll ask John Malcolm. Yeah, go ahead.

 

John Malcolm:  Yeah, let me react to what you just said and also a little bit to what Bill just said. So Bill said Flynn did lie. I don't know whether Flynn lied or not. We don’t have a transcript, although I know one exists, obviously, of his conversation with then Russian Ambassador Sergey Kislyak.

 

      There is no original FBI 302. The original agent who prepared it, Bill Pientka, apparently that 302 underwent significant changes, so many changes between Peter Strzok and Lisa Page that Peter Strzok at one point said that he was trying to retain Pientka voice in the 302 because it had changed so much. And Jeff Jensen, U.S. Attorney in St. Louis, has looked at that and said there’s no real evidence that a lie occurred here, and even if one did, there was no adequate factual predicate for the investigation. That gets to the question that you just raised.

 

      I do agree with Bill, though, that even if Flynn did lie, there is just too much else going on, and it’s not just the political motivations of the people who may have been really trying to get Flynn. But there are real questions about whether the government complied with its ethical obligations by turning over Brady and Giglio material to Flynn and his counsel.

 

      And there’s a real question about whether or not his original counsel advised him to plead guilty and was there when he reaffirmed that plea had an unwaivable conflict of interest that was undisclosed to General Flynn that precluded them from really giving him adequate, dispassionate, impartial advice. And I can discuss all of those if you want to.

 

      With respect to the factual predicate that you referred to, she made reference to the Logan Act, and at one point, Sally Yates, then Deputy Attorney General, said, “Well, that’s what we were concerned about was the Logan Act.” And the Logan Act charged here is a bunch of horse hockey for a couple of reasons. One, you referred to him in the intro as a Trump campaign official who talked to Sergey Kislyak. He wasn’t a Trump campaign official at that point. President Trump was now President-Elect Trump, and he was the designated -- Michael Flynn was the designated National Security Advisor.

 

      You don’t wait until the Inauguration Day to start your job. It was his job from the moment Trump won that election to start having these discussions with foreign officials and starting to establish foreign policy, and that included Sergey Kislyak. There was nothing wrong with that call.

 

      And even if you were to look at the Logan Act at face value, this was an act that was enacted in 1799 during the John Adams administration. Only two people have ever been prosecuted under the Logan Act, both unsuccessfully. And the last prosecution was undertaken in 1852. And there’s a reason for that, which is everybody on both sides of the political aisle believe that the Logan Act is, in all likelihood, unconstitutional. And lots of people, including, by the way, John Kerry and Ted Kennedy, have, if you took the Logan Act seriously, violated the Logan Act many, many times.

 

      And with respect to a counterintelligence investigation, again, it was all premised on the Steele dossier, now widely debunked. And Bill Barr has referred to this as a national disgrace that this investigation was undertaken. FBI Director Chris Wray has said that this was unacceptable that this investigation was undertaken.

 

      And there’s been the DOJ IG reports and all the problems with the FISA warrants in this case. So if you never had an adequate factual predicate for the interview in the first place, any misstatements that might have happened, whether they were intentional or not, would certainly be irrelevant and immaterial. And as you pointed out, the day before -- weeks before, actually, that interview, the original FBI agents had investigated Flynn combed the databases and said there is no there there.

 

      What changed? Peter Strzok, with his anti-Trump bias, had conversations with higher-ups in the FBI, including Director Comey, and they decided to keep that investigation alive. And as Bill Otis already pointed out, they violated all kinds of protocols to engage in what can only be characterized as an ambush interview.

 

Prof. John C. Yoo:  Let me ask the next natural question and turn it to Bill. What do you think about what Judge Sullivan is doing? So because a plea bargain was entered and prosecution was started, under the federal rules of criminal procedure, I take it, the withdrawal of the charges requires Judge Sullivan’s approval. And Judge Sullivan has called for amicus briefing. He’s called for oral arguments. He’s appointed this retired federal judge.

 

      Can we really blame Judge Sullivan? People may recall Judge Sullivan was also the trial judge in the mistaken prosecution of Senator Ted Stevens from Alaska where Judge Sullivan was very upset with the Justice Department for not reviewing Brady material properly. And Judge Sullivan put a lot of work into this case, and he went to great lengths to examine General Flynn at the plea bargain stages. And can we really blame Judge Sullivan for wanting to really make sure nothing untoward is going here with the dismissal of the charges? Bill?

 

Prof. William Otis:  The irony of this case, which your question points out, is that now, under Attorney General Barr, the Justice Department is taking seriously exactly the concerns that Judge Sullivan voiced about the FBI’s missteps and the Department of Justice’s missteps in the Ted Stevens case. And that’s, I think, something that should be pointed out to Judge Sullivan. He’s been heard. He should be happy that he’s been heard, that when the Department makes as many missteps out of motives as unworthy as we’re going on in this investigation, and that the Department is ready to admit it and correct itself. That’s something he should be proud of, and he should take some credit for having urged the Department in the Ted Stevens case to do what it’s doing now, to be open about it.

 

      As for what I think is likely to happen with the appointment of an amicus, and as you point out, the federal rules, here Rule 48(a), does require a leave of court for the government to dismiss. Nonetheless, the D.C. Circuit that supervises Judge Sullivan spoke to this question four years ago in a case by the name of Fokker and really did not leave much to the imagination about the extent of Judge Sullivan’s true authority.

 

      Let me just tell you a bit of what the D.C. Circuit and the unanimous opinion said about that. It said, and I’m quoting now, “The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive charging authority embraces whether to dismiss charges once brought. It is long been settled that the Judiciary generally lacks authority to second guess those Executive determinations, much less to impose its own charging preferences. Indeed, few subjects are less adapted to judicial review than the exercise of the Executive of his discretion in deciding when and whether to dismiss a proceeding once brought,” end quote.

 

      That is the governing law in this case. So while it’s true that Rule 48(a) does provide that, the court -- that dismissal can only be had by allowance of the court, that allowance is all but ministerial, given the District of Colombia Circuit’s interpretation of what the language in Rule 48(a) actually means.

 

Prof. John C. Yoo:  Very good.

 

John Malcolm:  Can I add to that?

 

Prof. John C. Yoo:  John, oh, yeah, go ahead. I have another question for you then, but go ahead.

 

John Malcolm:  Yeah, so there’s several things I think that Judge Sullivan has gotten wrong. So Bill is correctly cited to the Fokker Services case out of the D.C. Circuit at the follow-up of a Supreme Court case in 1977 called Rinaldi. And yes, the government has to file leave of court, but in Rinaldi and also in Fokker Services, the court not only said that the main decision based on separation of powers principles about whether to bring or maintain a prosecution rests with the Executive Branch, not the Judiciary.

 

      They also said that Rule 48(a) exists for the main purpose of preventing the government from harassing a defendant. It is designed to prevent the government from, say, filing a charge, proceeding down the road, bleeding the defendant dry, then when things are looking bad, dismissing the charges, only to continue developing their case, and then bring them again and do that kind of thing repeatedly. Here, there is no harassment of the defendant at all. Indeed, the defendant is quite anxious for the government’s motion to dismiss the charges with prejudice, to have that motion granted.

 

      The other thing that Judge Sullivan has done, which is just dead wrong, is he has now appointed an amicus person to come in and argue against the government’s motion, and that’s Judge Gleeson. He’s also invited other amicus briefs to be filed by, among others, a group of former Watergate prosecutors. There is nothing in the federal criminal rules of criminal procedure that permit amicus briefs to be filed in the District Court, and D.C.’s denied such requests 24 times already in this case until a couple weeks ago, according to Sidney Powell, Flynn’s attorney.

 

      And he has not only appointed a new amicus, but he’s urged the amicus to discuss an issue that wasn’t raised by either party in the case, and that flies directly in the face of the unanimous opinion that was written two weeks ago by Ruth Bader Ginsburg, U.S. v. Sineneng-Smith, in which the Ninth Circuit in a criminal case appointed an amicus to come in and argue an issue that had not been briefed by either defendant or the United States government. And unanimously, the Supreme Court said, “Cut it out.” And here, Judge Sullivan is directly ignoring what the Supreme Court just ruled two weeks ago.

 

Prof. John C. Yoo:  Very good. So let me turn it back to Bill and, I think, maybe get both your thoughts on this before the end of the half hour and we open up for questions.

 

      Suppose Judge Sullivan grants the motion by the Justice Department, all the charges are dismissed -- actually, doesn’t even matter if he does one way or the other. But we’re learning more about the early January 2017 meetings involving President Obama and Vice President Biden and Clapper, Brennan, Comey, Susan Rice, acting Attorney General Yates, and so on, about these critical decisions to launch this investigation, to engage in a great deal of unmasking of General Flynn’s phone calls and perhaps of others, to really launch -- well, maybe launch is the wrong word, but really to accelerate, perhaps, the investigation of the Trump campaign and actually transform it into an investigation of Trump administration officials.

 

      Do you think, both of you, do you think that there are any grounds for prosecution here of those who engaged in those initial decisions and the other legal or political sanctions available? Is President Trump right calling this the biggest political crime of the century, suggesting it’s even greater than Watergate? What about Attorney General Barr’s public comments earlier this week saying that he doesn’t expect there to be any criminal investigation of President Obama or Vice President Biden? What are we to make of that side of things? Is there any role for law of prosecution in the origins of all of this? So Bill, why don’t you go first?

 

Prof. William Otis:  I think we should -- in addressing those questions, we should learn from what we’ve found out already, which is that while the FBI’s conduct here of essentially a sham interview, it’s not illegal, but it embraced the wrong values and values that debase the integrity of the rule of law and debase public confidence in the Department of Justice. For those same reasons, we should be circumspect about, as Attorney General Barr said, circumspect about any future prosecutions of former President Obama, of former Vice President Biden. That’s third-world stuff. That’s doing something that conservatives have long warned against, which is criminalizing policy differences. That’s not a road we want to go down.

 

      Now, there are lesser officials, some of whom you named. I have some questions about whether Director Brennan might face criminal liability for perjuring himself in congressional testimony. We know already that one attorney in the Department of Justice intentionally falsified part of a FISA warrant application, and that seems to me a clear cut prosecution for obstruction of justice.

 

      So yes, depending on future information, while we shouldn’t go after national leaders like Obama and Biden, no matter how much we disagree with them, the place to resolve those disagreements is not in the courtroom. It’s at the ballot box. Conservatives have been saying that for years, and they’re right about it.

     

      I just want to end this part of it by adding one thought to what John said, which is that it’s not just that there is no rule of criminal procedure authorizing the appointment -- Judge Sullivan’s appointment of an amicus. The main thing that undermines the Judge’s decision is the Constitution and the separation of powers. What, in effect, Judge Sullivan has done is appoint a different prosecutor because he didn’t like the decision that the prosecutor we have has reached. But you can’t do that.

 

      The Constitution creates separation of powers for a reason. The Judicial Branch doesn’t get to appoint the prosecutor and doesn’t get to supervise the prosecutor’s decision. That is, if it were otherwise, what would happen is one of the great dangers against which the Framer’s aimed their construction of the Constitution, which is that the Judicial Branch would both make the charge and adjudicate the charge. That is the signature of tyranny, and it’s not just because of the absence of a rule of criminal procedure. It’s because of the underlying wisdom of the Constitution’s separation of powers that we can’t go down that road.

 

Prof. John C. Yoo:  Very good. John, why don’t you wrap it up? Yes.

 

John Malcolm:  Yeah, I’ve got a lot to say. I actually agree with Bill just said about separation of powers. The problem, of course, here is that Judge Sullivan has a defendant who’s already plead guilty in front of him, so he could just sit there and say, “I’m denying your motion even though I think it would be against the standards set by the D.C. Circuit and Supreme Court. And I’m going to proceed to sentence you, and then we’ll see what happens.”

 

      But now let’s get back to your January 5th meeting in the Oval Office. I mean, there is a lot about this that stinks. I mean, the day before -- I forget. That meeting was either January 5th or January 6th. But whatever it was, the day before was the day when the agents recommended closing what was referred to as Operation Razor, that is the investigation against Flynn connected to the broader operation Crossfire Hurricane. Thirty-nine top Obama officials, 39 of them, put in 53 unmasking requests for conversations that General Flynn had between Election Day and Inauguration Day.

 

      Now, what is that all about? Not only that, but the transcript, the papers that went to a FISA warrant, was leaked, or the existence of that transcript, that conversation, was leaked to David Ignatius of The Washington Post. Clear felony, by the way. Don’t know who did it, but a clear felony. That whole White House meeting was bizarre in the extreme. Sally Yates, the acting Attorney General, knew nothing about the conversations between Flynn and Kislyak. It was quite obvious that President Obama did because he’d been briefed about it by Comey. There was this bizarre email to her own file sent 15 days later on Inauguration Day by Samantha Power.

 

      And if you look at the officials who are doing this unmasking requests, it’s by Vice President Biden. It’s Denis McDonough, Obama’s Chief of Staff. Samantha Power said she didn’t remember putting in any unmasking requests; did seven unmasking requests. She was our U.N. ambassador. Why are these people seeking so many times to unmask conversations that the designated National Security Advisor was having after Election Day? And there’s now a whistleblower report, so a whistleblower complaint that the Treasury Department was looking at Flynn’s finances for two years before all of that.

 

      This is all sort of part and parcel of the broader story of what’s going on here, including the FISA abuse in terms of the Carter Page application. I don't know what crimes were committed, or whether there were any crimes committed or by whom, but John Durham probably has a pretty good idea.

 

      And I agree with Bill that we should not be criminalizing political differences, and the Supreme Court just reminded us in the Bridgegate case that not all political shenanigans constitute violations of federal criminal law. I believe that too, but I’m not going to go so far as to say no crimes were committed, indeed. Some probably were. Whether John Durham’s going to get to the bottom of it or not, I don't know.

 

Prof. John C. Yoo:  Great. Dean, why don’t you take it away with the questions?

 

Dean Reuter:  I’m going to kick things off with the first question here and push back a little bit on this. And that’s really why is the judge not within his rights to hold one Department of Justice, their feet to the fire on this? And where is the stopping point on this? I mean, Flynn had pled guilty. He hadn’t been sentenced, but let’s imagine basically the same facts, but Flynn has already been sentenced, or he’s reported to federal prison. And the Bureau of Prisons is housed within the Department of Justice.

 

      Can the Department of Justice release a prisoner because they feel he was improperly prosecuted, or does the court have some sort of right to oversee that process because the court was used in the process of conviction? The court could be seeing this as one Department of Justice that developed this case, prosecuted it, and now wants to reverse it.  Isn’t that a relevant perspective for the court to have?

 

John Malcolm:  This is John Malcolm. I’ll jump in. So yes, I think the judge has a right to be concerned about what happened and to ask questions. But at the end of the day, while under Rule 48(a), the government has to seek leave of court to withdraw the charges, the law is pretty clear that that is the only inquiry, and it’s a very limited one, is if the judge believes that the government is seeking this leave in order to harass or prejudice the defendant, which clearly is not what’s going on here.

 

      The Department of Justice may play a political price for this. Two thousand former federal prosecutors signed a petition urging Bill Barr to resign. There is no shortage of outrage in some of the mainstream media about what the Department of Justice is doing and suspicions as to why they’re doing it. They may pay a political price for doing this, but that doesn’t mean that the Judge can intervene and step outside the lanes both the Supreme Court and the D.C. Circuit have laid for him.

 

      If he does sentence him, could the Department just decide not to send him to jail if he’s been sentenced to jail? No, probably not. But at that point, the President could, of course, come in and either grant clemency to General Flynn or an outright pardon.

 

Prof. William Otis:  It seems to me that we need to remember here that a judge -- being a judge is a job. It’s not an anointment. As Justice Ginsburg pointed out in the unanimous opinion that John referred to, the Judicial Branch is not a rolling commission to right every wrong, regardless of how wrong it might be. What Judge Sullivan has to do is what every other judge has to do, which is follow the law as stated by a higher court.

 

      Here, the higher court in that squib that I read earlier in the hour has made perfectly clear the extent of Judge Sullivan’s, or any district judge’s, authority to deny a motion like this. In the 75 years since the language of Rule 48(a) permitting withdrawal of charges only by leave of court, in  the 75 years that’s been on the books, not a single court and not a single case that I have been able to find has denied the government’s motion to dismiss a prosecution.

 

      If Judge Sullivan is to be the first one, he’s going to have the most compelling reason. I don't even know what standard he would adopt to do it. The only one I can think of is that he would have to find that there is no reason for the Department now to move to dismiss other than some form of outright corruption. But he can’t possibly find that on this record.

 

      Given the now established number of missteps, of sleazy, underhanded, dissembling behavior by the FBI in putting this case together, it is impossible to conclude that the Department now is acting with political motives. The problem is that the Department in the past was acting with political motives in mounting and then shepherding along this interview and the prosecution that resulted from it.

 

John Malcolm:  That’s the only other thing that I would add on top of that is that Judge Sullivan has already made it quite clear that he does believe that there was a factual predicate for the investigation, and he does believe that General Flynn was guilty. He did that in a very extensive order in December of 2019. And earlier than that, he actually said -- he accused, basically, General Flynn, a three-star general, of having committed treason. So he probably does believe that the Department of Justice is doing something horrifically unfair.

 

      That may be, and perhaps the public may come to believe that too, in which case the Department of Justice and the President may pay a political price for that. But again, as Bill said, he’s not anointed, and he has to follow the rules that laid down for him. And he certainly appears to be going outside those lanes.

 

Dean Reuter:  Well, we’ve got -- this is Dean again. We’ve got a couple of hundred callers with us today, and by my count on my computer screen, 18 questions pending. So I’m going to ask our callers to be as brief as possible. Get to your questions. Please, no statements. We’ve got lots of people with interesting questions. So with that, let’s go to the first call.

 

Mike Daugherty:  I think I must get the stalker first caller award for John and John. This is Mike Daugherty. But very briefly, look, to me, the optics to the public of this is that, look, this happens all the time, all the time in all sorts of agencies and courtrooms across the country, just never at this level, and that criminals never get caught on their first crime, and that — call me a cynic — but that the FBI and Justice Department try to pull this stuff all the time and never get their hands slapped. But they just got so cocky.

 

      So how do you put this back together if there’s not going to have any clear accountability for this because I think in the court of public opinion, this is way worse than just a little oops. And I think we need to get out of the microcosm and look at the big picture that this is the type of thing that creates groundswells like Trump.

 

      And I think it just fuels the fire. And it terrifies me because it really taints a judiciary. It really taints the FBI. And I don’t believe all people inn both are bad, but there better be some accountability here or the public’s going to see all these people that don’t do anything about it as enablers. So what are your thoughts on that?

 

John Malcolm:  So this is John Malcolm. Mike, it’s good to hear your voice. I certainly think that Bill Barr and Chris Wray have their work cut out for them. And unfortunately, it’s not just that they can come in and say, “Bad things happened. We’re going to clean house,” because half the people in this country think that good things happened and that what’s happening now is bad.

 

      I hope that they are, and I believe that that they are, both of them, very straight shooters. And what is coming out about problems that the FBI encountered both with this investigation with the FISA applications for Carter Page and all that’s coming out with respect to General Flynn and the people that Obama folks had it in for General Flynn, I think is deeply troubling, and it’s also imperiling important tools that we have such as the very survival of the Foreign Intelligence Surveillance Act, which is an important tool that we use to keep track of what foreign governments are trying to plot against us or what terrorists are trying to plot against us.

 

      But I think it’s -- just to finish my point about that they had it in for Michael Flynn, I mean, think about how remarkable it is that President Obama, outgoing President Obama has an Oval Office meeting with the President Elect, President Trump, and he tells him that there are two people in the world who he doesn’t trust and who he considers to be dangerous. Who are those two people? Kim Jong Un and Michael Flynn. That’s a rather remarkable statement.

 

Prof. William Otis:  To follow up on that a bit, you can tell what a complete sham this supposed investigation of Michael Flynn and what his conversations were and may have been with the Russian ambassador by the fact that we already knew. We surveil -- we legally surveil, we wiretap conversations between United States’ citizens and the Russian ambassador, and we do it for good reason.

 

      Russia does not wish us well in this world, and the FBI already knew what Flynn had said and was talking about with the Russian ambassador. I would be surprised if the FBI agent who came in to interview Flynn didn’t already have in his briefcase the transcripts of the conversation that he was supposedly curious about and asked Flynn about. That is how much of a sham that this has been.

 

      Having said that, I think that the road to accountability starts first with getting the whole truth. We don’t have the whole truth yet. Only recently has some of this classified stuff started to come out. The degree of unmasking started to come out. U.S. Attorney Durham is continuing to work on that. Let’s get out the whole truth and then see what needs to be done by way of accountability.

 

      But I agree with the caller. This kind of behavior from the FBI will undermine confidence in an agency that has a long and honorable history and that serves an essential function for the United States, the public. We should conduct a sufficient investigation so the public will know everything that happened in putting out this sham investigation of Michael Flynn, why it happened, and what steps we are going to take in the future to correct the FBI’s behavior.

 

Dean Reuter:  Let’s move directly to our next caller.

 

Nelson Lund:  Hi. This is Nelson Lund. My question is similar to Dean Reuter’s, but I wanted to ask specifically about the case law, which is something I’m completely ignorant about. Are there precedents for dismissing a prosecution after the defendant has been convicted? Thank you.

 

John Malcolm:  Sure. So you have done this -- you probably have heard about this mostly in death penalty cases. I mean, there’s an entire innocence project in which you end up having improvements in DNA, and they find out that somebody who has been convicted of something has been completely exonerated, and they convince the government that that is so, or that some ethical violation occurred and evidence wasn’t turned over to them. They persuade the government that that is so. The government comes in and supports a motion to vacate a conviction, and it’s granted.

 

Nelson Lund:  Good. Thank you.

 

Dean Reuter:  And that requires court action in that instance, John.

 

John Malcolm:  Yes, it does.

 

Dean Reuter:  Sticking with area code 703, go right ahead, caller.

 

John Vecchione:  Hi. This is John Vecchione from the New Civil Liberties Alliance. I have an appellate question. There’s a writ of mandamus filed in the D.C. Circuit. How quickly do you think that will be acted on? In criminal rules, if I’m not mistaken, you are allowed amicus briefs in criminal appellate practice. So is that going to invite a lot of them? That’s my question.

 

John Malcolm:  Yeah, John. It’s, again, John Malcolm. It’s good to hear your voice too. Yes, so there are -- amicus can come in at the appellate stage. I don't know whether the D.C. Circuit will do that or not. So Judge Sullivan has called for more briefs that are due by July 10th, and I think he’s called for a hearing on July 16th.

 

      I certainly think that there will be some kind of action. What that action is on the petition for writ of mandamus before then, whether it will stay -- probably will stay additional proceedings until they have an opportunity to consider it. But look, it’s not easy to get a grant of a petition for a writ of mandamus. It’s considered an extraordinary remedy.

 

      However, there are three things that someone’s got to set out, that there’s no other adequate means to obtain relief, that the law here is clear and undisputable, and that granting the writ is appropriate under the circumstances. I’ve read Sidney Powell’s brief. I think she makes a fairly compelling case, but we’ll see what happens when the other side weighs in.

 

Prof. William Otis:  It seems that mandamus was granted in Fokker. That was a mandamus case.

 

John Malcom:  Right.

 

Prof. William Otis:  And I think this case is stronger than Fokker was. I have been practicing criminal law for over 25 years. I have never heard of amicus being appointed in a criminal case in district court. I have heard of and I was involved with the appointment of amicus in the higher courts. I was involved in the Dickerson case about the continued viability of the Miranda Rule. In that case, the Clinton Justice Department agreed with the defendant that 18 U.S.C. 3501 was unconstitutional because it purported to abridge what the court ultimately thought, erroneously, in my view, and in Scalia’s view, erroneously thought was the constitutional status of the Miranda Rule.

 

      Because the Department of Justice agreed with the defendant, the getaway driver in a bank robbery, about the constitutional status of 3501, the Supreme Court appointed an amicus, Professor Paul Cassell, to present the other side, the side that the Fourth Circuit had taken, finding that 3501 was consistent with the Constitution. So yes, there can be an amicus in a criminal case to present competing appellate arguments. I’ve never heard of it being done in district court.

 

      And as I was saying earlier, the problem with it in district court is it amounts to the district judge selecting a different prosecutor because he doesn’t like the actions of the present prosecutor. But that is not something the Judicial Branch is allowed under the separation of powers. The people, through political processes, select the prosecutor. The court does not.

 

John Vecchione:  Thank you.

 

John Malcolm:  Good. Dean, next question.

 

Dean Reuter:  A reminder to our callers. We’re in the lightning round here, so try and be as succinct as possible. Go right ahead, 202.

 

Katelyn Polantz:  Hi, this is Katelyn Polantz. I’m a reporter with CNN. I’ve been covering and writing about the Flynn case pretty closely over the past few years. And right before this call started, there was an order from a special panel at the Circuit, Judges Henderson, Wilkins, and Rao, ordering Judge Sullivan within ten days of today, which I believe would be June 1st, to file a response to Flynn’s request -- to the emergency request to the Circuit.

 

      And so I was hoping that you’d be able to respond to that, what you think that means, what the selection of the panel means for the Flynn case, and what it means for a timeline coming two days after Judge Sullivan set a timeline for arguments that stretched into July. Thanks.

 

John Malcolm:  Sure. Well, it’s John. Thank you very much for the question. I, of course, was -- well, all of us were unaware of that. I’m not sure what it means to ask the judge to respond. The judge is not going to be writing a brief, I don't think. I assume that that will mean that Judge Gleeson, perhaps, will write that brief, but I don't know. I’ve never heard of a judge writing a brief defending his own order.

 

      It certainly shows that the court is going to take this seriously and that it wants to act before the circus — my words — that’s going on in front of Judge Sullivan’s court continues. So I think that they will act quickly. I don't know whether that panel is just acting on the emergency petition and whether that would be the same panel that would consider the merits of the petition. I’m not quite sure what the procedures are in the D.C. Circuit for that.

 

Katelyn Polantz:  Right. They’re identified as a panel.

 

John Malcolm:  Right.

 

Prof. William Otis:  I think it’s worth pointing out again that the panel that wrote the -- the writing judge in the Fokker opinion, unanimous opinion by all three judges on the D.C. Circuit panel, was written by a prominent -- Sri Srinivasan, who’s a prominent Obama appointee, and I believe was carefully considered by President Obama for nomination to the Supreme Court. The nomination eventually went to Merrick Garland.

 

      And because I believe that the equities and the law in the Flynn case are even stronger for the defendant than the were in Fokker, I don’t believe that it makes a difference about the partisan composition of the panel, just as it didn’t make a difference in the Fokker case. The law is clear that separation of -- longstanding separation of powers principle prevent the district judge, for whatever his feelings may be about the underlying substance, that some decisions are reserved to the Executive Branch. And one of them is whom to prosecute and whom not to. So I don’t believe the composition of the panel is going to make a difference. The law is so clear.

 

Prof. John C. Yoo:  This is John Yoo. I just thought I’d throw in one thought, which is -- and sort of a John Malcolm race, which is who’s actually going to reply? And I think actually by sending an order like this, the D.C. Circuit panel is underlining the separation of powers problem here, which is in a normal writ of mandamus case, there’s another party who would defend what the district judge did. But the fact here that neither the Justice Department nor the defendant has an interest in defending what the judge, it’s like there’s no case or controversy anymore.

 

      And so if I were reading the tea leaves, I would say by even sending an order like this out, I think Judge Sullivan’s going to lose. And it’s almost like -- they’re almost like giving him a courtesy opportunity to fix his order and bring his house in order before the D.C. Circuit has to come in and do it for him, which would be humiliating for a trial judge.

 

Dean Reuter:  We've got just ten minutes left. Let’s check in with the next caller.

 

John Meyer (sp):  Hi. This is John Meyer, and my question is it goes a little further back in terms of the misuse of power. It now seems clear that all four FISA orders were very questionable because they were based on information that, in many cases, the people applying for them knew it was questionable or false. If all four FISA orders are not valid, is this prosecution or a lot of the others done by the Special Counsel, are they valid?

 

John Malcolm:  Well, I don't know what evidence was used from the Carter Page -- I mean, Carter Page was never prosecuted. This is John Malcolm speaking. Carter Page was never prosecuted. So I don't know whether evidence that was obtained under that particular FISA warrant -- actually, a series of four FISA warrants were used in any of these prosecutions. The Carter Page applications were premised on the now debunked Steele dossier, and that same dossier served as the basis for the investigation -- or the factual predicate for the investigation against General Flynn. So there’s a tie there between the two.

 

      But look, if there was inadequate factual predicate for the investigation in the first place, and if somebody ends up making a material misstatement, even if at the end of the day they decide that there was no underlying crime to investigate, it’s still a crime to present a material misstatement to the FBI. People can lie for all sorts of reasons. They often do it in order to cover up their guilt, but sometimes they lie because they would otherwise have to disclose embarrassing material. It’s not a good thing to lie to FBI agents. But it’s got to be a material misstatement, it has to have been intentional, and it has to be a valid investigation.

 

Dean Reuter:  Bill Otis, anything on this point?

 

Prof. William Otis:  Yes. In a way, I’m glad John called in with this question because as you know, I’ve been very skeptical of General Flynn. I think he made some serious missteps in his interview. He was not fully truthful, from what I can tell, both from what he’d said about his remarks during the interview and what the government now says in its motion to dismiss. But one way tried to come over. And I believe that one way or another, this motion to dismiss the prosecution is going to be granted. It will be granted either by Judge Sullivan or will be granted by the D.C. Circuit for him.

 

      The remaining litigation in this case, it seems to me, is going to be if, John, as you say, there is now evidence that all of the FISA warrant applications were doctored. That is an extremely serious obstruction of justice and should be investigated as such. And if it can be established beyond a reasonable doubt, it should be prosecuted. We simply can’t have that.

 

      The United States has enemies in the world who aim to do us really bad stuff, so it’s important that we gather foreign intelligence. But in doing so, the Foreign Intelligence Surveillance Court has to be able to trust what it’s hearing from the government because those warrant applications are submitted ex parte. There is no other party there to contest what the government is saying. It’s therefore imperative that the government have trust and earn trust. And in order to do that now, there has to be accountability for the people who debase trust by putting false things in these warrant applications.

 

John Malcolm:  Yeah, I agree with that completely.

 

Dean Reuter:  Let’s take another call.

 

Caller 6:  Yeah, I mean, the District of Columbia is known as a very Democratic-leaning area. If there is misconduct among members of the Obama administration, and these cases were to proceed to trial in, I assume, the D.C. Circuit, wouldn’t it be unlikely that any Obama administration would be actually convicted by a jury that’s drawn from the District of Columbia?

 

John Malcolm:  I don’t -- look, you’re certainly pointing out the District of Columbia, where happen to live, is a very, very liberal area. And that’s where the jury pool would come from. Donald Trump won a whopping three percent of the vote in the 2016 election from the District of Columbia.

 

      I don't know where the crimes would be charged. It depends on who would be charged and what for. They could conceivably charge in the Eastern District of Virginia, but that’s all very premature. I don't know who’s going to be charged with what.

 

      Bill certainly alluded to the fact that the Department of Justice’s Inspector General found that an FBI attorney named Kevin Clinesmith may have deliberately altered documents that went into one of the Carter Page applications, and so that would certainly be a potential crime that I’m sure is being looked at. But I don't know what other charges John Durham is considering and against whom or where they would be brought.

 

Dean Reuter:  Bill Otis, any comment on this?

 

Prof. William Otis:  I’m an old fashioned person, and I have an old fashioned faith in juries. And I am also hardened in my faith, however old fashioned or perhaps naive it may be.

 

      A similar question came up in the Boston Marathon bombing when the government was seeking the death penalty. Well, the death penalty isn’t really popular in Boston. As a matter of fact, Boston is one of the most liberal cities in the country, and in order to get the death penalty, you have to have 12 jurors unanimously want it. That is a tall hill to climb, but the government did it. And the reason the government obtained the death penalty from a Boston jury was the strength of the case and the hideousness of the crime.

 

      Here, we don’t know yet. There hasn’t been, so far as I know, although Durham is working on it, but so far as I know, there certainly have not been a result of the grand jury investigation. But I have faith that juries, liberal or conservative, black or white, when presented with a compelling case, will do the right thing. That’s my experience.

 

Prof. John C. Yoo:  Okay. Let’s wrap that up and get to one more question because I don’t want the call to be anything in favor of any Boston jury, thank you very much.

 

[Laughter]

 

Caller 7:  Hi, gentlemen. Thank you very much. The analysis here has presumed that the source of authority on which Sullivan is going to rely are the federal rules. Wouldn’t he be able to sidestep the separation of powers question entirely by relying instead on his equitable authority and seek, in effect, to prosecute Flynn for lying to the court by making assertions in his plea allocution that were false?

 

John Malcolm:  Yeah. So let me respond to that. John Malcolm. A couple of things to say. One is that’s a very frightening prospect that somehow anytime anybody enters a guilty plea, and then something happens and they seek to withdraw that plea, that all of a sudden the judge is going to say, “Well, I don’t care what the federal government does to you or state government. I’m going to go after you because you initially pled guilty in my courtroom.”

 

      But in addition to that, even there there’s some law. So contempt of criminal, contempt of court is under Title 18 United States Code Section 401. There’s a Supreme Court case out of 1919, Ex Parte Hudgings, that says that that perjury does not count necessarily as criminal contempt of court. And there’s a D.C. Circuit opinion too, a 1971 case, In Re Brown. It says in order for perjury to constitute criminal contempt of court, it actually has to obstruct a proceeding.

 

      And it’s very hard to see how General Flynn, other than perhaps wasting the court’s time in some way, how his attempt to withdraw his guilty plea has actually obstructed any proceeding. So I have a hard time even seeing that.

 

Prof. William Otis:  Yes, I would add to that that it’s routine for defendants initially to plead not guilty and then at some point during plea bargaining to change their plea to guilty to at least some of the original charges. If changing a plea from not guilty to guilty is amounting to perjury, then just about everybody, every defendant in federal court could be prosecuted for, quote, “contempt” for that kind of a change. It’s ridiculous.

 

      If Judge Sullivan were to do that, I don’t believe -- I know he’s talked about it. I don’t think he’s really going to do it because it’s so transparent that he would simply be doing by indirection what he cannot do directly because of separation of powers. And it’s not going to happen.

 

Dean Reuter:  Well, gentlemen, this is Dean. We’re out of time. Indeed, we’re beyond time. In respecting the participants here, I don’t want to borrow any time unnecessarily, so I think we’re going to have to leave it right there. We do have a number of questions on the board, but maybe we can get the band back together sooner rather than later.

 

[Laughter] 

 

      With that, my thanks to John Yoo, to John Malcolm, and to Bill Otis. As I mentioned, maybe we’ll have this call again sometime soon. There will be developments, I suspect. I want to thank the audience as well for dialing in, so many of you with so many questions. Sorry we didn’t get to all of them. Check The Federalist Society’s website and monitor your emails for upcoming teleforum conference calls. But until that next call, we are adjourned. Thank you very much, everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.