Twenty legal luminaries calling themselves “Separation of Powers Scholars” and led by Harvard Professor Laurence Tribe have written a brief urging Judge Emmet Sullivan to reject the government’s motion to dismiss the Michael Flynn case and to proceed to sentencing.
The brief is a shoddy piece of work. It tells little about the Flynn case, even misleading on that score, but it triggers disturbing ruminations about the sad state of current legal academia.
How We Got Here
Here’s a quick review of the case. For more detail, visit the roster of documents compiled by Flynn’s lawyer, Sidney Powell.
Flynn, Trump’s first national security advisor, was charged with lying to the FBI. After great pressure was put on him in threats of extensive jail time, possible indictments of his son, and financial ruin from lawyers’ fees, he, advised by the D.C. establishment firm of Covington and Burling (headed by former Obama Attorney General Eric Holder), agreed to plead guilty in exchange for a government recommendation of no jail time.
At a sentencing hearing in December 2018, Sullivan berated Flynn as a traitor. Thereafter, the government pushed Flynn still further for confessions, and in June 2019 Flynn fired C&B and hired Powell. Powell filed motions demanding production of exculpatory material the government hid, to which Flynn has a right.
In an intemperate opinion in December 2019, Sullivan denied the requests for more documents. Then, in February, U.S. Attorney General Barr appointed U.S. Attorney Jeff Jenson to review the Flynn case. In April, Jenson began releasing documents that tended to exculpate Flynn, much of it material the prosecutors had said did not exist.
Instead of Agreeing to Dismiss, Sullivan Attacked
On May 7, the Department of Justice filed a Motion to Dismiss. It elided the most unsavory aspects of the prosecution and rested on three legal points: (1) a false statement must be “material,” and because the investigation of Flynn lacked a legitimate basis it could not be “material”; (2) given the missing information, proving the case would be quite difficult; (3) under existing case law the judge has no discretion and must dismiss if DOJ so requests.
Sullivan instead appointed an outside lawyer to argue against dismissal and expressed an intent to solicit briefs from other outside parties. The named amicus immediately noted that he might require additional factual discovery, so this circus could go on a while.
Powell answered by requesting the DC Circuit Court of Appeals tell Sullivan to dismiss and remove him from the case. That court immediately ordered the judge to respond by June 1. Sullivan re-escalated by hiring a pit-bull litigator to represent him. And there the matter rests, although events keep unfolding hourly.
We’re Right Because We Gave Each Other Degrees
The scholars’ brief was drafted in response to Sullivan’s announced intent to accept such filings and was released on May 22, but has not been formally filed. Of the brief’s 24 pages of argument, the first 11 consist of the signatories preening about their accomplishments. Then it says: “The government’s motion to dismiss the case against Michael Flynn, after he twice pled guilty to violating 18 U.S.C. § 1001, asks this Court to place its imprimatur on the Executive Branch’s virtually unprecedented decision to dismiss a prosecution after the case has been won.”
Both prongs of this statement—“pled guilty” and “case has been won”—are problematic. Take the “won” first, because it is the simplest. It is close to a flat-out lie. Sullivan has not ruled on several of Powell’s motions concerning government misconduct and failure to produce material, nor on her motions about C&B’s representation. He cannot proceed to sentencing without ruling on them, and they could then be appealed. The case is over only if one assumes these motions lack merit, an assumption that is absurd, considering the recent DOJ revelations during the Russiagate probe.
The “pled guilty” assertion, which is repeated several times at an increasing decibel level, requires a discussion of the disgrace of plea bargaining. Prosecutors have unlimited discretion in choosing how to charge a defendant and in recommending a sentence.
For the same acts, one set of choices can lead to life in prison and another to probation. This usually benefits guilty defendants, who get off more lightly. But an innocent defendant faces the same set of trade-offs: plead guilty and get a light sentence, or roll the iron dice of litigation and perhaps go away for life, ruining your family financially in the process.
The result is that innocent defendants plead guilty all the time. The Innocence Project found that 11 percent of defendants later exonerated by DNA evidence had pled guilty. Judge Jed Rakoff has book forthcoming on “Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System” (2021). A classic 1978 article examining the parallels between plea bargaining and medieval torture is the subject of a rich literature of commentary, easily available via search engine.
Everyone Knows Plea Bargains Aren’t Perjury
The scholars’ brief deliberately ignored this tide of unease over plea bargains. The authors cannot possibly be unaware of it, especially because many academics are involved in The Innocence Project. Nonetheless, their brief quotes at length from the interchange with Sullivan forcing Flynn to grovel in his guilt while ignoring his lawyers were strongly advising him he must take the bargain.
This exchange is required by Rule 11(b) of the Federal Rules of Criminal Procedure, even though everyone involved in the process, including judges and prosecutors, knows that even an innocent defendant must at this point affirm his guilt. If he has been bludgeoned into pleading guilty because the alternative is a long sentence (15 years, in Flynn’s case), what is he supposed to do at sentencing hearing? Turn and say, “Actually, I am innocent,” and go to jail for 15 years? Yet this is what the scholars demand.
An amusing irony lies in Sullivan’s threat to punish Flynn for perjury during this colloquy if he now asserts innocence. Were this to happen, then the C&B lawyers and the prosecutors would be culpable for suborning perjury. But perhaps they could plea bargain.
The Judge Can’t Force the Government to Prosecute
The balance of the scholars’ brief concerns whether Judge Sullivan is required to accept the recommendation to dismiss or can reject it. The dispute stems from words added to Criminal Procedure Rule 48 during the 1940s that say the government can dismiss an indictment “with leave of the court.”
The DOJ says this is designed to protect a defendant against government chicanery of dismissing a case that is going badly and then recharging. That has no application here, as the government is requesting dismissal “with prejudice,” which means it cannot be brought again. The scholars, and others opposed to the dismissal, say it means the judge has authority to prevent prosecutorial corruption.
This presents an interesting legal issue, and both sides overstate their case, as is the norm in litigation. A forthcoming article reviewing the history of the “leave of the court language” asserts that the drafters’ concern was prosecutorial corruption, not protection of the defendant, but is silent on how a court could administer a case if the government sat on its hands and refused to proceed.
It is doubtful that the drafters of 80 years ago intended to create, sub silentio, such a monster of judicial authority, and did so without anyone noticing. A recent D.C. Circuit case (Fokker) says charging decisions are up to the executive branch.
This Judge Is Completely Off the Rails
However, even if one thinks a judge should have some wiggle room, nothing in the history of the rule indicates any intent to allow a free-wheeling judicial inquiry into the prosecutors’ actions. Where, as is in the Flynn case, the government provided a detailed, on-its-face reasonable explanation, the judge abuses his discretion if he denies the dismissal.
Still less does a judge have the power to invite outside parties to come roaring in with amicus briefs, turning a criminal proceeding into a political circus, and forcing the beleaguered victim to defend not just against the government but against the world at large. See the recent Supreme Court decision Seneneng-Smith.
On this issue as well, the scholars’ brief is deficient. It argues that Fokker does not apply, but the argument depends on the “case is over” contention, and, not mentioning Seneneng-Smith, it pays no attention to the practical and institutional problems of Sullivan’s decision to turn the proceeding into an amicus circus.
The Point Is Politics, Not Law
So one is left with a puzzle. What is the point of this brief? It would not help Sullivan, because it would tend to lure him into false positions and make him look even more foolish. It would not really help convince lawyers familiar with the case, who will spot its glaring holes immediately.
The only possible conclusion is that it was written to provide talking points to the ignorant, particularly to the corporate press, which can use the professional pedigrees as cover to spout the themes of “he pled guilty!” and “the case is over!” And, of course, “Orange man evil!”
I am uncertain when providing cover for simplified nonsense and political hatchet jobs came to be regarded as a proper function of America’s richly and often taxpayer funded academic elite. But they should be embarrassed.