This article appeared in the May 16, 2020 Concord Monitor
As early as Roman times, the law has recognized the doctrine of non bis in idem (“an issue once decided must not be raised again”). It is enshrined in the Fifth Amendment as the double jeopardy clause. If a defendant goes to trial and is acquitted, the case is over. and the Government cannot ask for a do-over. That is how the system works.
We now have the unusual, if not unique, situation where a defendant named Michael Flynn twice pleads guilty in open court to a federal crime—lying to the FBI—and the federal judge, after determining that Flynn is acting voluntarily and understands what he is doing, accepts the plea. The guilt-or-innocence phase of the case is over, and all that remains is for the judge to determine the appropriate punishment. Flynn’s recourse at that point would be to ask President Trump to pardon him. which the President has the power to do under Article Two of the Constitution.
Does Flynn have another way out? Can Attorney General Barr unring the bell unilaterally and tell the judge, “We’ve changed our minds, he didn’t do anything wrong (or at least we can’t prove he did), so we’re dismissing the case.”
The answer is no. Rule 48(a) of the Federal Rules of Criminal Procedure says that “the government may, with leave of court, dismiss an indictment, information, or complaint.” The rule says nothing about dismissing a case after a conviction, whether by guilty plea or otherwise, but the final say rests with the presiding federal judge, Emmet G. Sullivan, an appointee of Presidents from both parties (Reagan and Bush 41 to District of Columbia courts, Clinton to the federal court).
A brief review of the case. Flynn served for two years as Director of the Defense Intelligence Agency under President Obama. He later joined the Trump campaign and became Trump’s National Security Advisor, a position he held for two weeks following Trump’s inauguration. He “resigned” after it came out that he had misled both the FBI and Vice President Pence about his conversations with Russian Ambassador Sergey Kislak.
Flynn then came under the scrutiny of Special Counsel Robert Mueller, with whom he reached a plea agreement. On December 1, 2017, he pleaded guilty to a felony— “willfully and knowingly” lying to the FBI, and he agreed to cooperate with the Mueller investigation.
What followed were a series of delays and claims for leniency by Flynn’s lawyers, who claimed that the FBI had tricked their client and had not advised him that lying to the FBI is a serious crime. At a hearing before Judge Sullivan, the lawyers backtracked on whether the FBI had done anything wrong, and Flynn admitted in open court that he knew when he gave his initial interview that lying to the FBI is a crime. Judge Sullivan looked Flynn in the face and said, “Arguably, you sold your country out.”
A year ago, Flynn fired his lawyers, and his new lawyer moved to hold the prosecutors in contempt. When that motion failed, and Judge Sullivan scheduled sentencing for January 28, 2020, the prosecutors requested jail time of up to six months. A week later, Flynn moved to withdraw his guilty plea, again accusing the government of misconduct, and a new sentencing date was set.
In February, Attorney General Barr appointed a U.S. Attorney from Missouri to investigate the matter, and sentencing was delayed yet again. Flynn then charged his former lawyers from the firm of Covington & Burling with providing inadequate counsel.
Meanwhile, Trump was calling for the charges against Flynn to be dropped, and on May 7 the Justice Department, acting through yet another official (a Trump political appointee), announced that it was dropping the case. The career DOJ lawyers withdrew from any continuing involvement.
The following week, Judge Sullivan made it clear that he, not the Attorney General, is running this case. First, he issued an order on May 12 soliciting amicus curiae (friend of the court) submissions, of which I’m sure there will be no shortage. Some two thousand former federal prosecutors have already called on Barr to resign over this.
The next day, the judge appointed a former federal judge from Brooklyn, now in private practice, to oppose dismissal of the case. Judge Sullivan’s choice, John Gleeson, knows his way around the criminal law. Before becoming a judge, he successfully prosecuted Mafia boss John Gotti.
No one should be surprised by the judge’s reaction to the DOJ’s effort to unring its own bell and thereby turn the double jeopardy clause inside out, effectively “unjeopardizing” Michael Flynn. Judge Sullivan is, after all, an “Article III” judge, meaning that under straightforward separation of powers principles, the Justice Department cannot dictate how he decides cases. A prosecutor can decide not to file a case, but as Rule 48(a) says, in plain English, once a case is in court, the judge decides.
Predictions about court outcomes are hazardous at best. But looking at the history of this case, Flynn’s repeated acknowledgements of guilt, and the judge’s in-court statements, my crystal ball tells me that the Department of Justice will lose, as it should. Such an outcome will vindicate the rule of law, and the public will be the winner.