While Attorney General William Barr announced that the Department of Justice was dismissing the case against President Trump’s former national security advisor, Michael Flynn, one overlooked detail has emerged.
According to one federal judge and two former DOJ attorney’s, Barr’s dismissal is only a recommendation to the court. The judge overseeing the case is the official arbiter who makes the final call.
In an opinion written for The Washington Post (May 11), John Gleeson, a former U.S. district judge; David O’Neil, a former acting assistant attorney general for the Justice Department’s Criminal Division; and Marshall Miller, a former a career official in the Criminal Division breakdown the process.
“The department’s motion to dismiss the Flynn case is actually just a request,” the three write, “one that requires ‘leave of the court’ before it is effective.
“The executive branch has unreviewable authority to decide whether to prosecute a case. But once it secures an indictment, the proceedings necessarily involve the judicial branch.”
And here’s the critical part, “…the law provides that the court — not the executive branch — decides whether an indictment may be dismissed. The responsible exercise of that authority is particularly important here, where a defendant’s plea of guilty has already been accepted.”
“Government motions to dismiss at this stage,” the authors stress, “are virtually unheard of.
“The Justice Department has made conflicting statements to the federal judge overseeing the case, Emmet G. Sullivan. He has the authority, the tools and the obligation to assess the credibility of the department’s stated reasons for abruptly reversing course.
“Prosecutors deserve a ‘presumption of regularity’ — the benefit of the doubt that they are acting honestly and following the rules. But when the facts suggest they have abused their power, that presumption fades.
“If prosecutors attempt to dismiss a well-founded prosecution for impermissible or corrupt reasons, the people would be ill-served if a court blindly approved their dismissal request. The independence of the court protects us all when executive-branch decisions smack of impropriety; it also protects the judiciary itself from becoming a party to corruption.
“The department now says it cannot prove its case. But Flynn had already admitted his guilt to lying to the FBI, and the court had accepted his plea. The purported reasons for the dismissal clash not only with the department’s previous arguments in Flynn’s case — where it assured the court of an important federal interest in punishing Flynn’s dishonesty, an interest it now dismisses as insubstantial — but also with arguments it has routinely made for years in similar cases not involving defendants close to the president.”
The court has several pathways to resolve the question as to whether the case against Flynn can be dismissed. One such pathway: “the court could compel the department to reveal the one thing it has thus far refused to show — the actual evidence underlying the prosecution… the very conversations with the Russian ambassador that Flynn admitted he lied about when the FBI interviewed him.”
However, the department has refused to turn them over. So, the court could compel their release to understand precisely why prosecutors believed they proved guilt in the past and now claim the conversations were innocent.
The three legal experts agree that “Flynn’s guilt has already been adjudicated. So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing.”
Late Tuesday, Judge Sullivan announced he will put DOJ’s dismissal recommendation on hold for the time being.
Bottom line: It ain’t over until the judge says so!