AP featured image
Artist rendering showing Judge Emmet Sullivan questioning a potential juror during the trial of Sen. Ted Stevens, Tuesday, Sept. 23, 2008, in federal court in Washington. (AP Photo/Dana Verkouteren)

I’m seeing a lot of online “lawyering” on the legal question(s) before Judge Sullivan, with many focusing on the orders today with regard to accepting amicus curiae briefs, and later appointing retired federal Judge John Gleeson to serve as a “Friend of the Court” and offer a brief against the DOJ motion to dismiss the Flynn case.

Notwithstanding all the online punditry, the issue before the Court as posed by the DOJ motion is very simple.  The fact that Judge Sullivan is accepting amicus briefs and claims he needs a “Friend of the Court” to brief the opposing view on a minor point of procedural law is a transparent revelation of his duplicitous motives.  To suggest that he needs “advice” on whether Gen. Flynn should be held in contempt of court for perjury simply ignores his own 33 years experience as a federal judge — signaling that in all that time he’s never figured out what misconduct would be considered sufficient to cite a party before his court for contempt.

I’m not going to do it as part of this story, but I’m certain some enterprising researcher is going to turn up a stat in the next couple days that reveals how many times in his career Judge Sullivan has already issued Orders to “Show Cause Re Contempt” in the tens of thousands of cases he has presided over in his more than three decades as a trial court judge.  To suggest he needs “advice” on this question is transparent horse manure.

But let’s turn to the issue of a motion under Rule 48(a), and consider the question posed by the DOJ motion to dismiss the case involving Gen. Michael Flynn.  What is the relevant case law Judge Sullivan must confront — and does it really warrant the need for all the assistance he seems to be soliciting?

The first thing to understand is we are talking about a “rule” of procedure.  It is not a statute, and it is not a constitutional provision.  Rules of procedure are drafted by committees organized by the Judicial Conference of the United States, which was created by Congress to create policy guidelines for the administration and operation of federal courts.  Some formal and informal committees of the Judicial Conference solicit input on procedural rules, and draft proposals to make changes, additions, or deletions to those rules.  Such proposals are published for public comment once they are final.   The committee might or might not make changes to the proposals based on comments received.  Once the committee has settled on a final proposal, the proposal is sent to the Judicial Conference.  If the Judicial Conference approves the proposals, they are sent on to the Supreme Court.  If the Supreme Court approves, it sends the adopted proposals on to Congress, which then has seven months to adopt, amend, or delete the proposed changes.

The rules are not the equivalent of a statute, which must be voted on and passed by both the House and Senate, and then signed by the President.  And they certainly don’t carry anything close to the authoritative weight of constitutional provisions.

The “mischief” in the rulemaking process often happens when the proposed changes are before Congress.  Language of the proposal can be adopted — or changed — and what Congress does in that regard is final.  Sometimes changes are made with no explanation — which is a problem present in questions surrounding the language of Rule 48(a) and the issue before Judge Sullivan.

I’m not going to turn this article into an extended legal review of all the potentially relevant — in a tangential way — case law on federal rules which has come down in various Circuit Courts of Appeal over the last 100 years.  There will be amicus briefs filed that will chart that path — maybe even Judge Gleeson will go down that road.  But those who do will only be engaging in an exercise of legal sophistry and obfuscation because the answer to the question before Judge Sullivan is quite simple, and it was provided by the Court of Appeals for the DC Circuit just four years ago in its decision in the case of United States v. Fokker Services.

There will be efforts to “distinguish” Fokker — to say it’s not a sufficiently similar case to control the outcome here — and efforts to point to other decisions in the DC Circuit or other Circuit Courts of Appeal which point in a different direction for an answer to the Rule 48(a) question.  But that’s all a distraction and a waste of time because Judge Sullivan cannot escape Fokker.  A District Court judge in the District of Columbia is obligated to follow the rulings of the Circuit Court for DC — he does not have a choice.  He cannot “dissent” and reach a decision based on his own views.  He might not like or agree with the outcome that is dictated by the Fokker case, but in order to respect the oath of his office, he is duty-bound — bound by the Constitution — to respect and apply the law as it is established by a court of a higher status than the Court he presides in.

There are four words in the language of Rule 48(a) that are the source of the consternation and controversy surrounding the DOJ motion to dismiss.  In its entirety Rule 48(a) reads as follows:

Rule 48. Dismissal:  (a) By the Government. 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.

“Leave of court” simply means with the court’s permission — permission.  But the combination of the two orders entered by Sullivan yesterday will result in the filing of literally thousands of pages of legal analysis as to what a court is entitled to do in coming to a decision about whether to grant such permission.

I’ll state the answer first — what does the phrase mean? — and offer an overview of the cases which dictate what Sullivan’s final decision must be.

Q — What does “with leave of court” mean in the context of Rule 48(a)?

A — Nobody knows.

Source — Supreme Court of the United States.  In Footnote 15 of its decision in Rinaldi v. United States, the Court said the following:

The words “leave of court” were inserted in Rule 48(a) without explanation.

The insertion of those words is one of those instances where Congress changed the language of a proposed rule — by inserting language that was not in the proposal sent by the Supreme Court — but provided no explanation or rationale for why, or the significance of the additional language.  They are essentially a blank canvas upon which judges have provided their own meaning.

The Supreme Court’s 1977 decision in Rinaldi addressed the meaning of the language — but did not adopt a conclusive meaning because the Court decided such a meaning was not necessary to the outcome of the case.

DOJ’s motion relies on Rinaldi to support its position that Judge Sullivan has no meaningful discretion in deciding how he should rule on the motion to dismiss.   In Rinaldi the defendant was convicted at trial.  After the trial, the Department of Justice joined with the defendant in making a joint motion to dismiss the case on the basis that it had been brought by an individual prosecutor who misrepresented to the trial court his authority to do so.  The defendant had been previously convicted in state court for the same conduct that constituted the federal offense with which he was charged.  Bringing the federal case in that situation violated a well-known DOJ policy, and when asked about that by the trial court, the prosecutor misrepresented to the Court that he had secured all the necessary approvals to file the case as an exception to the policy, when that was not true.

The defendant raised the issue of the policy violation in his appeal.  The government agreed with the defendant before the appeals court, and the D.C. Court of Appeals remanded the case to the District Court for further consideration.  On remand the government moved to dismiss the case pursuant to Rule 48(a) — the same rule that has been invoked in the DOJ Motion to Dismiss Gen. Flynn’s case.   But the District Court in Rinaldi denied the motion because it had not been made before the defendant was convicted, and because of the prosecutor’s bad faith in misleading the court.

A divided D.C. Court of Appeals upheld the District Court’s denial of the Rule 48(a) motion by a vote of 7-6.  The majority view was that the Government’s misconduct gave the District Court adequate reason to deny the motion, and that the defendant had no right to have an otherwise valid conviction dismissed simply because the Justice Department violated its own internal policy.

By a vote of 6-3, the Supreme Court reversed, and determined that the case must be dismissed.  But opponents of Gen. Flynn — in the form of dozens of incoming amicus briefs and the briefing of Judge Gleeson — will likely seize upon other language in Footnote 15, specifically the following:

But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest. See United States v. Cowan, 524 F.2d 504 (CA5 1975); United States v. Ammidown, 162 U.S.App.D.C. 28, 33, 497 F.2d 615, 620 (1973).

The argument that has been advanced by the pundit class is that the dismissal is a political favor to Pres. Trump, therefore not in the interests of justice and thus “contrary to the public interest.”  They will argue that the language of the footnote confirms that the district court can deny the motion based on a finding that the DOJ motion is improperly motivated.

But that is not actually what the Court said in Rinaldi, as the full text of the quoted footnote makes clear.  The full text of Footnote 15 reads:

The words “leave of court” were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, the circumstances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the “leave of court” requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection…. But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest…. It is unnecessary to decide whether the court has discretion under these circumstances, since, even assuming it does, the result in this case remains the same. 

(At the ellipses, I omitted internal case citations to lower court decisions.)

The bolded language states that the Supreme Court did not decide whether the “with leave of court” phrase in Rule 48(a) provides discretion to a district court to deny a motion made by the government on the basis that the district court finds — in its view — that granting the motion would be “contrary to the public interest.”  As is the common practice of the Supreme Court, it opted to not address that question because doing so was not necessary to the decision in the case.

But if we turn to a more recent decision of the Court of Appeals for the DC Circuit — which are binding on Judge Sullivan — one case strongly supports the proposition that Judge Sullivan is not entitled to evaluate the motives of a co-equal branch of government in making a charging decision — an issue that is uniquely within the authority of the Executive branch of government under our constitutional framework.

In 2016, the Court of Appeals for the DC Circuit decided the U.S. v. Fokker Services case finding that the district court judge committed reversible error in denying a joint request from the government and the defendant to “exclude time” under the Speedy Trial Act.  The district court had denied the request because it disagreed with the charging decisions made by the government in the case leading up to the motion.  The district court had pressed the prosecutors to explain why they had decided to not pursue criminal charges against individual corporate officials.  When he was not satisfied with the answers he was provided, he denied the joint request to exclude time.  The Appeals Court explained:

[P]ursuant to the agreement, the government filed with the district court a one-count information against Fokker, together with the [Deferred Prosecution Agreement]…. [T]he government and Fokker filed a joint motion for the exclusion of time under the Speedy Trial Act, in order to “allow [the company] to demonstrate its good conduct and implement certain remedial measures.”…  The district court then held a series of status conferences, during which it repeatedly emphasized its concerns about the absence of any criminal prosecution of individual company officers…. The court requested several additional written submissions from the government. The government was asked to explain why the interests of justice supported the court’s approval of the deal embodied by the DPA, and also to address whether Fokker’s initial disclosures to the government had in fact been voluntary…. The district court later expressed that it might still reject the DPA because it was “too good a deal for the defendant.”…  [T]he district court denied the joint motion for the exclusion of time. In explaining the reasons for its decision, the court criticized the government for failing to prosecute any “individuals … for their conduct.” …. According to the court, approval of an agreement in which the defendant had been “prosecuted so anemically for engaging in such egregious conduct for such a sustained period of time and for the benefit of one of our country’s worst enemies” would “promote disrespect for the law.”

The Fokker case involved a motion to exclude time under the Speedy Trial Act.  The Speedy Trial Act is a federal statute that governs how quickly a case must be brought to trial, and is intended to protect the rights of both the defendant and the “people” to have a timely disposition of federal criminal cases once they are indicted.  But, just like Rule 48(a), agreements to suspend the running of time under the Speedy Trial Act, even if jointly requested by both parties, still require approval of the court and a court finding that the granting the motion is “in the interests of justice.”

With regard to what authority that language actually gave to the District Court in ruling on a joint motion to exclude time, the DC Court of Appeals wrote:

While the exclusion of time is subject to “the approval of the court,” there is no ground for reading that provision to confer free-ranging authority in district courts to scrutinize the prosecution’s discretionary charging decisions. Rather, we read the statute against the background of settled constitutional understandings under which authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.

What is important to take away from this language is that the Court of Appeals has already ruled definitively in the D.C. Circuit that it is not proper to elevate language in a statute passed by Congress in such a way as to contravene the longstanding and foundational constitutional understanding of the respective roles of the Executive and Judiciary in the manner by which the criminal justice system operates.  The Court of Appeals reversed the district judge for using the “approval of the court” language as a basis to impose his judgment with regard to the charging decisions in the case in place of the government’s judgment on those issues with which he disagreed.   Not only did he lack the power to do that — he lacked the power to even entertain the possibility of denying the motion to exclude time on that basis because to do so was to interfere on questions that are uniquely committed to the Executive to decide.

The same limiting principles apply here.  The opponents of the motion by DOJ would elevate the language of a RULE of procedure — not even a statute passed by Congress and signed by the President — above the constitutional framework under with the Judiciary and Executive perform different functions.

So, as the Supreme Court acknowledged in Rinaldi, it is impossible to know what was meant by “with leave of court” when it was inserted into the text of the rule proposal that became Rule 48(a) without explanation.

But the Court of Appeals for the DC Circuit conclusively told us what it did NOT mean — it does not mean that Judge Sullivan has the power to go behind the reasons for the decision set forth in the DOJ Motion to Dismiss, and that he does not have the authority to substitute his view of the case for the Executive Branch’s view of the case based on four words in a procedural rule.

Here is my prediction for what Judge Sullivan will eventually do if he is forced to make a decision on the motion.  He will write a long long opinion that is a one-sided work of historical revision that ignores nearly all the misconduct on the part of the investigators and prosecutors, and relies greatly on the proceedings by which Gen. Flynn was led to plead guilty.  He will then comb through every scrap of paper he can find to denigrate and dismiss the rationale that has been offered by DOJ, and find that all the legal arguments offered are specious.

He will conclude by excoriating Gen. Flynn for the “conduct” underlying the charges that were brought against him — and likely for uncharged conduct involving the allegations of FARA violations (but he won’t make the mistake of referencing “treason” again), and explain why Gen. Flynn’s conduct, in Judge Sullivan’s view, was a threat to the Flag, Democracy, Apple Pie, and Hot Dogs.

But in the final paragraph he will say that, notwithstanding everything he has found to be true as reflected in his opinion, he has no choice under the law but to grant DOJ’s motion and dismiss the case.

He’ll order that his opinion be published in the Federal Supplement, with the goal being that his account will be the definitive historical account of the Gen. Flynn saga.

He’ll do what the law commands him to do, but he’ll do it in such a way that he’s a hero to all his left-wing legal cronies.