Of Interest

Of Interest

DC Court of Appeals orders Judge Sullivan to respond to Michael Flynn’s Petition for Writ of Mandamus

United States v. Michael T. Flynn

On May 21, 2020, the Court of Appeals for the DC Circuit Court of Appeals issued an extraordinary order — on its own motion — directing Judge Sullivan himself to file a response to the Petition for Writ of Mandamus filed by Gen. Flynn earlier this week.

I.   Background

General Michael Flynn (ret.) served as the National Security Advisor to the President of the United States.

On January 24, 2017, Flynn was interviewed at the White House by two agents of the Federal Bureau of Investigation—Peter Strzok and Joseph Pientka. As former FBI Director James Comey later bragged on television, he “just sent them”—in violation of known protocols. A fresh review of the Government’s file by U.S. Attorney Jeffrey Jensen revealed long-suppressed Brady material establishing the FBI had no legitimate reason to interview General Flynn.

A.   Plot to Entrap

Members of the FBI had plotted to interview General Flynn without the standard section 1001 warnings to “get him to lie so we can prosecute him or get him fired.” Text messages between the FBI Agents Peter Strzok and Lisa Page (Deputy FBI Director Andrew McCabe’s special counsel), revealed that, weeks after the pretextual interview, Strzok was still rewriting the 302 so completely that he struggled to “maintain Joe [Pientka]’s voice.” Page and Strzok massaged the 302 until McCabe approved it, and it was filed as final on February 15, 2017—two days after General Flynn resigned from the White House.

B.   Improper Comments from the Bench

General Flynn pled guilty on December 1, 2017. A year later, on what was scheduled to be his sentencing, the judge assigned to the case, Judge Sullivan, publicly berated him. Sullivan suggested Flynn may have committed “treason,” asserted that he had “sold [his] country out,” and expressed “disdain” and “disgust” for General Flynn’s conduct—flat wrong on crucial facts of the case.

C.   Withholding of Exculpatory Evicence

In June 2019, General Flynn fired his defense team and current counsel appeared—immediately requesting Brady material from the Government. When informal requests were unsuccessful and AUSA Brandon Van Grack (on detail to the Special Counsel’s Office) claimed he had produced everything to which the defense was entitled, General Flynn filed a Motion to Compel the Production of Brady Material and For an Order to Show Cause. After extensive briefing, Judge Sullivan issued a 92-page denial on December 16, 2019.

Meanwhile, the Inspector General for the Department of Justice filed the long-awaited report.

The IG Report disclosed for the first time that Agent Pientka had been surreptitiously slipped into a presidential briefing for nominee Trump on August 17, 2016, because General Flynn would be attending. IG Report at 340. The FBI had decided to have Pientka attend that meeting to “assess” Flynn’s mannerisms and collect information in case the FBI needed to interview him later (i.e. if Flynn were in the White House after Trump’s election). This prompted General Flynn’s Supplemental Motion to Dismiss for Egregious Government Misconduct and Brady Violations.

General Flynn also filed motions to withdraw his guilty plea because of the Government’s breach of the plea agreement, the conflict of interest of his prior counsel, failure of the court to comply with Rule 11, the lack of factual basis for the plea, and ineffective assistance of counsel that rendered his plea unknowing and involuntary.

In early 2020, the Attorney General asked United States Attorney Jeffrey Jensen of the Eastern District of Missouri to review General Flynn’s prosecution. Jensen had served as an FBI agent for ten years and later as an AUSA for another ten years.

Months of contentious litigation culminated on April 24, 2020, when the Government produced four pages of long-withheld Brady material. A later tranche of damning evidence showed that the FBI interview was a setup and the 302 was doctored—just as General Flynn had suggested.

D.   Acknowledgment by United States Attorney of Failure to Disclose Evidence and of No Crime

On May 7, 2020, the United States Attorney for the District of Columbia acknowledged the Government’s longstanding failure to produce Brady evidence and the lack of a legitimate basis for what amounted to a charge fabricated against General Flynn, and the Government moved to dismiss the Information with prejudice in the interest of justice. The Government acknowledged that General Flynn’s statements to the FBI were not material to a legitimate investigation, and there was no crime.

E.   Appointment of Amicus Counsel by Judge Sullivan

On May 11, 2020, just four days later, a collection of former prosecutors (“The Watergate Group”) emailed the court, clerk, and counsel—giving notice of intent to File a Motion for Leave to File an Amicus Brief.

The defense promptly objected to allowing any amici before the district court acted. The court did not address the Motion to Dismiss that had been pending for five days. Instead, it issued a de facto call for amicus briefs by advising that “at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs.”

The following day, the court, sua sponte, entered an order appointing “the Honorable John Gleeson (Ret.) [sic] as amicus curiae to present arguments against the government’s Motion to Dismiss.” The court’s order instructed Mr. Gleeson to advise “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.” Mr. Gleeson has now appeared and proposes, inter alia, to advise the court as to “any additional factual development [he] may need before finalizing [his] argument in opposition to the government’s motion in this case.”

II.   Argument By Flynn's Attorneys

The district court has disregarded the constitutional imperative of a “case and controversy” and the “separation of powers” that invests the power to prosecute solely in the executive branch. In the American system, the parties “frame the issues for decision” while the courts take the role of “neutral arbiter of matters the parties present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008).

The Supreme Court recently noted: “‘[C]ourts are essentially passive instruments of government.’ United States v. Samuels, 808 F. 2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in denial of reh’g en banc). They ‘do not, or should not, sally forth each day looking for wrongs to right.’” Sineneng-Smith, slip op at 4. “Our system is designed around the premise that [parties represented by competent counsel] know what is best for them and are responsible for advancing the facts and argument entitling them to relief.”

The principle of party autonomy is particularly salient in criminal cases where the power to prosecute is assigned by the Constitution to the executive branch.

A district court cannot deny the Government’s motion to dismiss because the judge has “a disagreement with the prosecution’s exercise of charging authority,” such as “a view that the defendant should stand trial” or “that more serious charges should be brought.” Fokker Servs., 818 F.3d 733 (2016) Nor should a court second-guess the Government’s “conclusion that additional prosecution or punishment would not serve the public interest.” Id. at 743.

The district court has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing amici to perform the investigation or prosecution that the court deems appropriate. Less than two weeks ago, in Sineneng-Smith, the Supreme Court unanimously reversed a similar usurpation by the Ninth Circuit in an opinion authored by a venerable alumna of this Court.

III.   Analysis

This DC Circuit Court of Appeals’ order is significant for at least two reasons:

  1. It requires Judge Sullivan to personally respond to Flynn’s Petition for Writ of Mandamus, which is extraordinary in and of itself.
  2. It requires Judge Sullivan to directly respond the DOJ’s Motion to Dismiss with consideration of Rule 48(a) of the Federal Rules of Criminal Procedure and the Circuit Court of Appeals’ earlier decision of United States v. Fokker Services.

US v. Fokker Services leaves Judge Sullivan no choice other than to grant the DOJ’s Motion to Dismiss its case against Flynn.

US v. Fokker Services involved a question about language in the “Speedy Trial Act,” a statute passed by Congress and signed into law by the President. That statute provides that agreements between the parties to “exclude time” under the provisions of the Act are only effective with “approval of the court.” Rule 48(a)-a procedural rule, not a statute — requires “leave of court” before a government motion to dismiss a criminal case will be granted.

The following excerpt from US v. Fokker Services is the reason for the DC Circuit Court of Appeals’ focus as set forth in its order; there seems to be no way around the following:

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.

The key to the ruling by the DC Circuit in US v. Fokker Services is the point made by the Court there that the kind of “discretion” conferred upon trial courts by language such as that found in the Speedy Trial Act must be interpreted against the backdrop of the constitutional framework that places certain discretionary decision-making solely in the province of a different branch of the government. So, while a district court need not be a “rubber stamp” in granting “approval” to exclude time — the question before it in US v. Fokker Services—that does not mean a district court can rely on that authority as a basis to conduct a review of the justification offered when the issue in question involves discretionary decision-making on matters solely committed to the Executive Branch.

That Judge Sullivan might disagree with the rationale advanced by the DOJ in the Motion to Dismiss is not pertinent to a determination of whether the motion is properly grounded — and the “leave of court” condition is most properly read as only requiring that such a motion be properly grounded—i.e, there is a factual and/or legal reason for the decision. Because it’s not necessary for Judge Sullivan to agree or accept the rationale put forth in the motion for dismissal to be called for, there is no purpose to be served by the searching inquiry he seems determined to conduct. Unless he can identify in his response a potential course of inquiry that leads to something other than a possible disagreement with the motion on factual and/or legal grounds, the Appeals Court is likely to grant the Petition and issue a Writ of Mandamus directing Judge Sullivan to dismiss the case forthwith.