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Judge Sullivan didn't let the DOJ drop charges against Flynn easily — he's not wrong

Federal District Judge Emmett Sullivan’s refusal to rubber-stamp the Department of Justice’s motion to withdraw the criminal charges behind former national security advisor Michael T. Flynn’s guilty plea is well within his discretion. He should be allowed to do his job, as he’s done with integrity and distinction for over 36 years. 

Flynn pleaded guilty to making a false statement in a January 2017 interview with the FBI regarding his communications with the Russian ambassador, prompting President TrumpDonald John TrumpBiden campaign slams Facebook after thousands of ads blocked by platform's pre-election blackout Mnuchin says he learned of Pelosi's letter to him about stimulus talks 'in the press' Harris to travel to Texas Friday after polls show tie between Trump, Biden MORE to fire him. In Trump’s words, “he lied to the vice president and the FBI.” DOJ did an about-face after Flynn’s conviction and now claims that Flynn’s lies were immaterial. 

Sullivan isn’t buying DOJ’s maneuver at face value.

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Judges are accustomed to hearing different points of view. Because the defendant and the government are in lockstep here, Sullivan did two things: he invited amicus briefs in the “public interest,” and he appointed a retired federal judge, John Gleeson, to investigate and represent the other side on this issue of immense national importance. 

Sullivan’s decision to enlist Judge Gleeson, in particular, makes eminent sense. Gleeson understands what goes on in the DOJ, having served as an assistant U.S. attorney for the Eastern District of New York for nearly a decade. Known for his prosecution of Mafia cases, he secured the conviction of Gambino crime boss John Gotti. Gleeson also served on the federal bench from 1994 to 2016. 

Rather than awaiting Sullivan’s ruling and then appealing, Flynn’s lawyers filed an emergency petition for a writ of mandamus with the Court of Appeals for the D.C. Circuit, seeking an order directing Sullivan to grant DOJ’s motion to dismiss Flynn’s criminal case post-conviction. The DOJ has been silent.

In response, the D.C. Circuit issued an order giving Judge Sullivan 10 days to file a response defending himself. He must address two legal authorities: Rule 48(a) of the Federal Rules of Criminal Procedure, which allows the government to dismiss charges “with leave of court,” and its 2016 decision in United States v. Fokker Services, B.V., reversing a lower court’s denial of a joint motion to delay a trial.

With the spotlight off Flynn’s betrayal of the public trust, the focus is now on a distinguished federal judge in a dispute ratcheted up by his colleagues on the appeals court.

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Let’s get a few legal items straight.

Fokker doesn’t dictate a rebuke of Judge Sullivan in this case. To be sure, in Fokker, the D.C. Circuit focused on the separation of powers problems with a judge playing prosecutor, noting that “[t]he Constitution allocates primacy in criminal charging decisions to the Executive Branch.” But nobody pleaded guilty in that case. The government offered what’s known as a deferred prosecution agreement (DPA), allowing Fokker to show good behavior to avoid criminal charges. The wrinkle was the Speedy Trial Act, which required the judge’s sign-off to delay prosecution. DOJ and Fokker filed a joint motion seeking that approval, which was denied and reversed on appeal. 

Flynn’s case is different. 

First, Flynn seeks a writ of mandamus — an extraordinary remedy which, according to DOJ itself, “should only be used in exceptional circumstances of peculiar emergency or public importance.” The judicial intransigence that warrants this last-resort relief is not in play here. As in Fokker, Flynn can simply await a ruling on the motion and appeal it — like every other litigant unhappy with a lower court’s actions. There is no need to tie Sullivan’s hands.

Second, unlike a DPA, Flynn’s guilty plea means Flynn is convicted and ready to be sentenced. Although charges can be dismissed post-conviction or as part of a plea, judges have wide latitude at sentencing. Flynn’s case is thus in a very different posture than Fokker, with different separation of powers concerns. Sullivan is not stepping into the shoes of prosecutors but exercising his judicial discretion at the sentencing phase. And Rule 48(a) establishes no criteria for when “leave of court” to dismiss a case is appropriate. Absent a statute or higher court authority, the discretion to apply this standard lies — as it often does — with the trial court.

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In Gall v. United States, the Supreme Court in 2017 underscored the trial court’s superior role at sentencing, noting that “[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider . . . every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment.” In that regard, “[d]istrict courts have an institutional advantage over appellate courts in making these sorts of determinations.”

Surely, Judge Sullivan could have held hearings with fact witnesses, but then the hue and cry would have been that he’s grandstanding and making a circus of the Flynn case. What’s a judge to do? 

The separation of powers does not lodge in the executive branch the role of legislature and judge. It is not up to DOJ to decide how Rule 48(a) should be implemented — that’s a question for Congress or, in the absence of statutory criteria, for the district judge. The D.C. Circuit in Fokker appointed amicus curiae to argue a position that was not represented by the parties. Sullivan’s decision is of the same ilk.

Inscribing her 2014 book, Flynn’s current defense counsel and former federal prosecutor wrote a tribute to “Judge Emmet Sullivan, to all those who seek, hallow, and do Justice. With the greatest respect and gratitude for your honorable service.” 

All should take heed.

Kimberly Wehle is a visiting professor of law at American University’s Washington College of Law and author of the books, How to Read the Constitution—and Why, and What You Need to Know About Voting—and Why, to be published on June 16. Follow her on Twitter: @kim_wehle.