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Former Trump national security adviser Michael Flynn leaves federal courthouse in Washington, Tuesday, July 10, 2018, following a status hearing. (AP Photo/Manuel Balce Ceneta)

Earlier today the Department of Justice filed its Brief in Reply to the Opposition Brief filed last week by the court-appointed amicus counsel in the Gen. Flynn case, Ret. Judge John Gleeson.

For non-lawyers its probably a bit head-spinning to keep up with what is being filed and where.  So a bit of a “law-spainer” to help you out.

Currently there are two separate matters pending in two different courts, proceeding along parallel tracks.

DOJ filed in May a motion to dismiss the prosecution started by the Special Counsel’s Office against Gen. Michael Flynn.  Because Gen. Flynn agreed with DOJ’s filing and joined in the request, Judge Sullivan appointed an amicus counsel – a “friend of the court” — to file a brief “opposing” the DOJ motion so there would be a true adversarial position before the Court for purposes of it deciding the DOJ motion.  Judge Sullivan established a schedule by which the amicus counsel had until June 10 to file his “opposition” brief.  Gen. Flynn and DOJ then had until today, June 17, to file their “Reply” briefs in response to the amicus counsel’s opposition.

Rather than wait for that schedule to play out — but without asking for the schedule to be vacated — Gen. Flynn’s attorneys filed a Petition for Writ of Mandamus in the Circuit Court of Appeal, which is an extraordinary remedy where the party is asking the appellate court to order the trial court to take a specific step and no other.  In this case Gen. Flynn is asking the appellate court to order Judge Sullivan to grant the DOJ motion.

The Circuit Court set a briefing and argument schedule that was faster than the one set by Judge Sullivan on the DOJ motion in his court.  The proceedings before the Circuit Court were fully briefed by the parties and argued last week.  The Circuit Court has not yet entered a decision.

But while that was taking place, the time for DOJ and Gen. Flynn to file Replies to the amicus brief arrived today.  Those are the briefs I am reviewing today, with the DOJ brief up first.

There are no big revelations in the DOJ brief filed today, and it goes through much of the same case law and facts as was covered in the DOJ briefs filed with the Circuit Court last week.  But there are a few minor points worth raising.

A lot will be made of Footnote 1 in the brief which addresses the production of a significant volume of material from the Flynn prosecutors following the transfer of the case to Judge Sullivan, and the entry by Judge Sullivan of his standing order on production by the government of Brady material to Gen. Flynn’s attorneys even though Gen. Flynn had pleaded guilty.

The Reply brief notes that the prosecutors produced approximately 25,000 pages of discovery in connection with Judge Sullivan’s order – documents that had not been provided to Gen. Flynn’s lawyers prior to his entering his guilty plea.  In further notes that 21,000 pages of that material involved the FARA filing, and the remaining material dealt with Gen. Flynn’s January 24, 2017, interview, and the various interviews done with him as part of his cooperation with the SCO’s investigation.

Then it gets interesting when it refers to the 25 pages of material disclosed to Gen. Flynn’s attorneys in May 2020 as the result of the independent review conducted by U.S. Attorney Jeffrey Jensen.  It states that these documents are relevant to the “discretionary decision to dismiss this case.”

But what is most significant is that it breaks with Gen. Flynn on the claims of prosecutorial misconduct made by him about the non-disclosure of much of this information — including the 25 pages — when it makes the declarative statement that the motion to dismiss is not influenced by the “broad allegations of prosecutorial misconduct.”  It states those allegations are unfounded and provide no basis to impugn the prosecutors.

What that means is that DOJ disagrees with the claims made by Gen. Flynn that withholding the documents in question violated Brady or Judge Sullivan’s standing order, and no one should look upon the decision to dismiss the case as an acknowledgement that Gen. Flynn’s claims of “outrageous prosecutorial misconduct” have any merit.

In my opinion this Footnote validates what I said at the time DOJ filed the motion about the fact that Brandon Van Grack not be asked to sign the motoin.  Opponents of DOJ and Gen. Flynn  have claimed that Van Grack refused to sign to motion, which should be taken as an indication of his disagreement with the bases set forth, and that political motives are actually behind the move.   It could be easily inferred from the bases set forth in the motion that DOJ was criticizing how the case was handled by Van Grack while he was a member of the SCO, and later after the SCO had closed.  Asking him to sign the motion would have been a huge professional discourtesy since he clearly could not agree given his nearly 3 year effort to prosecute Gen. Flynn.  That’s why the motion itself was signed only by the then Acting U.S. Attorney.

It also suggests that it was the FBI, and not the SCO, who was responsible for those 25 pages never having been disclosed before the review by U.S. Attorney Jensen.  This would be consistent with reporting that Dana Boente, after becoming General Counsel for the FBI, had led the fight on behalf of the FBI to not disclose the documents that were eventually turned over.

This Reply brief was signed and filed by AUSA Jocelynn Ballentine, who was co-prosecutor on the Flynn case along with Van Grack.  The inclusion of this Footnote, declaring that there was no prosecutorial misconduct, and the basis for the dismissal in unrelated to allegations raised by Gen. Flynn’s counsel in that regard, allowed AUSA Ballentine to file the brief under her own name.

And by doing so she also endorses the substance of the arguments advanced in support of dismissing the case – going to the “interests of justice”, inability to establish factual “materiality”, and inability to establish “willful falsity” with regard to the disputed statements.

As for substance of the arguments made by DOJ, there is not much that is new.  The “Factual Background” is nearly word-for-word what DOJ submitted to the Circuit Court of Appeal in connection with the mandamus petition argued last Friday.  Nothing new there.

With regard to the vituperative nature of Ret. Judge Gleeson’s invective-laden brief filed in opposition to the motion, DOJ generally does not “rise to the bait.”  The brief points out several legal issues where Judge Gleeson is simply wrong on the law.

I think in response to both comments by Judge Sullivan’s attorney in the Circuit Court and Judge Gleeson here, in which both have noted past inconsistent statements from DOJ/SCO on various issues raised in the motion to dismiss, the Reply brief makes the very deliberate point “This motion represents the authoritative position of the Executive…”   Basically telling the Judge Sullivan to “Disregard anything that is inconsistent with what we are saying here,” and telling Gleeson to “go pound sand”.

But the most significant point addressed by DOJ is that it simply and concisely sets out three separate bases for dismissing the case.

  1. The interests of justice do not support continuing the prosecution.
  2. The Executive’s legal analysis and assessment of the evidence show that proving “materiality” under the statute would be difficult.
  3. The Executive’s legal analysis and assessment of the evidence show that proving “willful falsity” in connection with the alleged false statements would be difficult.

The DOJ brief argues that each is a separate and independent ground for dismissing the case, and each is not subject to judicial review or oversight even if the Court would come to a different conclusion on any/all of the three.

The DOJ brief also argues that the sweeping inquiry into DOJ’s decision making is prohibited by separation of powers concerns, and nothing in the text or history of Rule 48(a) suggests that any court has such authority.  To require DOJ to explain its “deliberations” in reaching decisions on such matters is prohibited by numerous cases in a variety of contexts.  Rule 48(a)’s “with leave of court” language doesn’t alter those well-established and long-recognized prohibitions.

DOJ argues that even to the extent that Rule 48(a) authorizes any form of inquiry by the Court, it can go no further than to examine the reasons proffered and make a judgment that the request for dismissal is supported.  It provides not basis to disagree, substitute the Court’s judgement for that of the Executive, or call into question the legitimacy of the Executive’s decision.

It also makes an interesting reply to Gleeson’s argument that the historical understanding about the purpose of Rule 48(a) is wrong.  Gleeson argues based on a law review article that the real purpose behind Rule 48(a) was as a safeguard against inappropriate Executive action with regard to criminal matters.  DOJ responds that whatever the historical record might show about what the drafters intended is irrelevant in the face of what the Supreme Court and lower courts have said about the language.  It also states that even if the drafters of the language had meant to use Rule 48(a) as some kind of “check” on Executive authority, the subsequent jurisprudence of the Supreme Court on separation of powers concerns and the discretion of the Executive in making charging decisions simply nullifies the drafter’s intent in adding the language because they could not alter the constitutional framework by their word-smithing.

The final point I’ll make on the DOJ brief is that it lays waste to the claim by Flynn opponents that because Gen. Flynn has pleaded guilty, there is some heightened judicial interest in terms of the separation of powers concerns, and the Executive interest in controlling the charging decision is diminished.  As Dep. Sol. General Wall stated in his argument before the Circuit Court, and as is repeated here, there is no basis in the case law for such a distinction.  The constitutional concerns regarding separation of powers, under the case law, are the same in either circumstance.

Most significantly – from a nerdish lawyer point of view – is the point that dismissing an action is not a “judicial” act in the same way that entry of judgment or sentencing is a judicial act.  Allowing the parties to jointly resolve and dismiss the dispute does not in any way give the resolution the imprimatur of judicial agreement with the outcome.  It is nothing more than an acknowledgment by the Court that there is no further case or controversy for the Court to resolve. On that basis the Court has no interest in whether it grants or denies the motion, and any “purpose” behind the discretion permitted under Rule 48(a) needs to be limited for that reason.

The Brief makes many additional points, but nothing earth shattering.  I’ll return for a closer analysis later if time allows.

A review of Gen. Flynn’s Reply brief coming shortly.