For several years I spent a few weeks each summer directing a “law camp” for high school students, typically rising seniors. We explored our constitutional republic and various areas of substantive law, put on a mock trial, and visited representatives of the three branches of government, including a senior assistant U.S. attorney.
In speaking with the students, the AUSA always began by pointing to the seal of the Department of Justice, Qui Pro Domina Justitia Sequitur—literally “Who For Lady Justice Strives”—explaining the English adaptation continues to govern his every deed: “The United States Wins Its Point Whenever Justice Is Done Its Citizens In the Courts.”
It’s been a decade since I last entered the grand jury room to hear those words repeated to a new group of students. The AUSA has also since retired. The developments of the last year make me wonder if Lady Justice has, as well, and if so, whether anyone really cares.
It seems not. Evidence continue to mount that in the waning days of the Obama administration, career and political appointees alike abused their investigative and prosecutorial powers. The most recent and most shocking misconduct concerns the Foreign Intelligence Surveillance Act (FISA) warrant process. Yet the media ignored or obfuscated the revelations of both the Nunes memo and the Grassley-Graham criminal referral.
Then with Saturday’s release of the House Democrats’ response under the leadership of Rep. Adam Schiff (D-California), the narrative quickly turned to claims that charges of FISA abuse have been refuted. They have not.
Despite Democrat Claims, FISA Abuse Remains
First, while the Democrats justify omitting information federal intelligence agencies presented to the FISA court to obtain surveillance powers on a U.S. citizen, it is an abuse of this secret-court system to withhold details that could bear on the court’s decision. That is true regardless of whether the information withheld reaches the legal threshold of materiality, a question that concerns the admissibility of evidence in a subsequent trial, not the propriety of prosecutorial conduct.
I remain convinced that the information withheld was material. But even if the omissions were immaterial, Americans of all stripes should be concerned that prosecutors hold the power to unilaterally decide whether to share potentially exculpatory or impeachment evidence with a secret court when that evidence, under normal circumstances, will never come to light should the target later be charged criminally.
Second, the Democrat response counters claims of misconduct by stressing that the FISA application “made only narrow use of information from [Christopher] Steele’s sources about [Carter] Page’s specific activities in 2016, chiefly his suspected July 2016 meetings in Moscow with Russian officials.” But that information provided the lynchpin for claims that Page engaged in criminal conduct—something necessary under FISA to obtain a warrant against a U.S. citizen. Significantly, that information also came from unnamed Russian sources and was not corroborated. As I explained at length before, a court cannot find probable cause based on such uncorroborated hearsay.
Third, Schiff’s rebuttal highlights investigators’ interest in Page prior to receiving the Steele dossier funded by Hillary Clinton’s campaign and the Democratic National Committee, as well as evidence indicating Page served as a foreign agent. But none of that evidence indicates Page had committed a federal crime. Only the hearsay from the Steele dossier did that and, as just noted, that is not enough.
The Abuse Flagged Is Real and Hasn’t Been Addressed
The Democrat response deflects legitimate concerns raised in the Nunes memo and Grassley-Graham referral. That is tragic because, even assuming the Republicans acted with the worst of partisan motives, the legislators raised real instances of prosecutorial abuse that merit redress.
That is why last week I cheered on the possibility of Michael Flynn withdrawing his guilty plea: not because I believe Flynn innocent—I have no opinion on the merits of the case or the morals of the man—but because I believe the United States did not win its point with justice. I believe Flynn’s prosecution was tainted by interest-conflicted federal employees Sally Yates, Peter Strzok, and Andrew Weissmann’s involvement in the investigation. Just as I believe the DOJ wrongfully obtained warrants from the FISA court to wiretap Page based on withheld information and uncorroborated hearsay, I believe evidence was withheld from Flynn prior to his guilty plea.
As I explained last week, we now have the chance to learn if that is the case because of the slight, but significant, modification made to the standing order entered in United States v. Flynn, by now-presiding Judge Emmet Sullivan. The February 16, 2018, revision spelled out that the government’s duty to produce favorable material to Flynn that is material either to his guilt or punishment, “includes producing, during plea negotiations, any exculpatory evidence in the government’s possession.” If the government failed to do this, as footnote 1 of the revised standing order made clear, Flynn would have a basis to withdraw his guilty plea.
Let me pause here for a moment to stress the significance of the standing order is not that it proves the government withheld evidence or that Sullivan believes it did. Sullivan enters a standing order in all of his cases, as I noted last week. The revision was merely his most recent iteration, which as others have pointed out Sullivan used in other cases predating Flynn’s by at least a month.
Judicial Precedent Over Withdrawing a Guilty Plea
The significance of the revision to the standing order is the content of the modification—footnote 1 and the accompanying text: That footnote walks through a complex area of criminal law addressing whether a defendant may withdraw a guilty plea based on the government’s failure to disclose material exculpatory evidence. The Supreme Court has never answered this question. The DC Circuit—the federal appellate court that establishes mandatory precedent for the DC District Court on which Sullivan sits—has never answered this question.
But other judges have, including from the DC District Court, and Sullivan’s standing order demonstrates concurrence in their view that a guilty plea is not “knowing and voluntary” if the government failed to provide material exculpatory evidence to the defendant before he enters a guilty plea.
A defendant may withdraw a guilty plea that was not “knowing and voluntary.” Case law also holds that if a plea is not “knowing and voluntary,” waivers contained in the plea agreement are not either. In pleading guilty, among other things, Flynn waived the right to exclude statements he made during his plea negotiations should he revoke his guilty plea. That waiver, shown below, would allow the government to use, in a subsequent trial, the damning statement Flynn made in pleading guilty.
But under the case law Sullivan relies upon, withholding material exculpatory evidence would mean Flynn’s plea was not knowing and voluntary. In turn, that would mean Flynn could both withdraw his guilty plea and avoid the previously agreed-upon waivers, allowing him to exclude from evidence statements he made in the plea process.
Politically Motivated Prosecutions Destroy Justice
Now, of course, I don’t know whether the government withheld material exculpatory evidence from Flynn prior to his guilty plea. I think it is likely, and it is reasonable to think so given the evidence of misconduct by members involved in the investigation and the special counsel’s office. If I am wrong, I will celebrate that disclosure with even more gusto than my discovery of footnote 1, because it would mean not that the Department of Justice won, but that justice has won.
Sullivan demonstrated in United States v. Stevens that he puts justice first and will not tolerate prosecutorial misconduct. For those uninitiated in the abuses rained down on the now-deceased Sen. Ted Stevens, read Sullivan’s 2016 Cardozo Law Review article for a quick history of the case, which will also help you understand politically motivated prosecutorial misconduct.
In short: In 2008, when Stevens was running for re-election for a seventh term, the DOJ tried him on charges he lied on a Senate disclosure form. A jury convicted him one week before election day. Stevens lost the election, a Democrat replaced him, and control of the Senate shifted to the Democrats.
Sullivan later discovered that the government had systematically concealed “evidence favorable to the Senator in violation of the law, the Constitution, and the prosecutors’ ethical duties.” Sullivan appointed former assistant U.S. attorney Henry Schuelke to investigate the individuals involved in Steven’s prosecution. Following a nearly three-year investigation, Schuelke found “significant, widespread, and, at times intentional misconduct.”
The standing order now governing discovery in the Flynn case flowed from Sullivan’s exposure to the prosecutorial misconduct in the Stevens case, and provides assurances that if there was misconduct in Flynn’s case, it will come to light. If, after seeing all of the evidence, Sullivan sees no improprieties, the country can have confidence in that conclusion.
This is what is so damaging about the perversion of justice: no one knows when it has been achieved. So partisans work instead to wrench the sword from Lady Justice’s grasp to strike with the might that comes from power, instead of the right that flows from a blind, passionless guardian of the law.
The irony in all this is that while the country will benefit if Flynn withdraws his guilty plea—by restoring confidence in the integrity of the process—Flynn may not. Flynn may well be guilty, and if he withdraws his guilty plea, that does not equate to going free. Rather, the government will be put to its burden of proof. Should the government properly prove its case, Flynn will face a stiffer penalty than had he been sentenced with the government supporting a reduced sentence for acceptance of responsibility and providing the government substantial assistance.
But this fight is not about Flynn winning, or about Nunes, Grassley, and Graham winning. It’s about justice winning, at least for those fighting for the right reasons.