Has Judge Emmet Sullivan taken a strong stand against cronyism in the case of Michael Flynn, or transformed a courtroom into a forum for “mob rule”? On the Left, we have four attorneys for Lawfare, who plan to avail themselves of Sullivan’s invitation for amicus briefs to argue the former. Taking the latter point of view, we have Jonathan Turley on the … er … Left as well.

Since we have previously featured Turley’s strong objections to Sullivan’s actions, let’s allow the plaintiff’s amici to give the opening argument. According to Lawfare’s quartet (Andrew Crespo, Laura Londoño Pardo, Kristy Parker, Nathaniel Sobel), Federal Rule of Criminal Procedure 48 not only allows for judges to reject dismissal requests from prosecutions, the Supreme Court had cases like Flynn’s in mind when they promulgated it. The rule exists to keep prosecutors from favoring politically connected defendants where enough evidence exists to take a case to trial, they argue:

Historically, prosecutors had unfettered authority to dismiss criminal charges on their own initiative, at any time and for any reason, or for no reason at all. But that changed in late 1944, when the Supreme Court adopted Federal Rule of Criminal Procedure 48. The modern rule, which has remained virtually the same since its inception, states that: “The government may, with leave of court, dismiss an indictment, information, or complaint” (emphasis added).

This language expressly envisions a role for the court. It is most commonly associated with the doctrine of prosecutorial harassment, which protects defendants from abuse by preventing the government from manipulating the timing of a case or forum shopping—that is, moving a case from court to court—by “charging, dismissing, and recharging” a case. But that is not the only evil Rule 48 addresses. As Thomas Frampton recently explained in the most thorough scholarly treatment of the rule’s history to date, Rule 48’s principal object was not to protect “individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” In other words, Frampton writes, Rule 48 “was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn.” …

Of course, prosecutors’ motions to dismiss pending criminal charges can and often do serve laudable ends, including the protection of criminal defendants from flimsy charges or from punishments that may be unjust or too severe. In recognition of that fact—and of longstanding separation of powers principles—courts have held that the government’s prosecutorial discretion to dismiss a case is necessarily broad, and should be disturbed only in rare circumstances. But as the U.S. Court of Appeals for the D.C. Circuit pointedly observed in its seminal decision in United States v. Ammidown, a judge reviewing a prosecutor’s motion to dismiss should not “serve merely as a rubber stamp for the prosecutor’s decision.” Rather, “when the defendant concurs in the dismissal” the trial judge retains the “responsibility” to determine whether the proposed dismissal “adequately protects the public interest,” and to refuse the prosecutor’s request if it does not.

Interestingly, the four attorneys do better in addressing precedent than others supporting Sullivan’s actions have done, but they only address one — Fokker Services. They note that Fokker expressly referenced Ammidown and works within that precedent, and that Fokker dealt with pretrial issues rather than a case in which the defendant had pleaded guilty — twice. In Ammidown, the court ruled that a judge suspecting something amiss with a prosecution withdrawal “should not be content with a mere conclusory statement by the prosecutor that dismissal is in the public interest.”

Of course, the prosecution in this case says something a bit different than this. An independent investigation by a career US Attorney in the DoJ uncovered investigative and prosecutorial misconduct, including disclosure violations and plea deal aspects that were never disclosed to the court. Furthermore, Crespo et al never address the more recent precedent of Sineneng-Smith, in which the Supreme Court held 9-0 that courts can’t resort to amici briefs and outside panels when it comes to criminal cases and issues not raised by either party within them:

Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the First Amendment. In accord with the amici’s arguments, the Ninth Circuit held that §1324(a)(1)(A)(iv) is unconstitutionally overbroad.

Held: The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.

The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243. That principle forecloses the controlling role the Ninth Circuit took on in this case.

The reason Crespo et al never addresses this precedent — established less than two weeks ago — is likely because it completely defeats their argument. If Sullivan wanted to reject the government’s motion, he probably has that theoretical authority under Rule 48, but only under extraordinary circumstances, and without appointing special masters. The form Sullivan adopted is precluded under Sineneng-Smith, and the substance is contradicted by the evidence of previous prosecutorial and investigative misconduct.

Besides, as Turley argues, Sullivan has gone even beyond that boundary. He has proposed charging Flynn himself with a crime of perjury through the device of his special master for the case, an action which amounts to “gross judicial overreach” on Sullivan’s part. Adding amici briefs makes this resemble “mob rule” more than Article III judgment, Turley writes:

Under Sullivan’s theory, any time a defendant seeks such a dismissal (even with the support of the prosecutors) he could face a judicially mandated perjury charge. Faced with evidence of prosecutorial wrongdoing (which often arises after a trial), defense counsel (like myself) would have to warn clients that the court might just swap one crime for another. …

Consider the scenario. Sullivan knows that such a charge would not be prosecuted by the Justice Department. However, Criminal Procedure Rule 42 states that such cases are to be prosecuted by the government, but “if the government declines the request, the court must appoint another attorney to prosecute the contempt.”

So what is Sullivan going to do? He cannot force the Justice Department to prosecute a case that it considers to be unethical. He would have to enlist his own outside prosecutor after creating his own dispute with outside parties. If Flynn is convicted, Sullivan will have to order the Bureau of Prisons to incarcerate someone who was convicted by judicial design.

Further, Turley argues, Sullivan’s not doing this out of concern over cronyism. Sullivan’s trying to save face after embarrassing himself in earlier hearings in a case that should never have been brought in the first place:

Ironically, Sullivan is largely responsible for the current posture of the case. Flynn was supposed to be sentenced in December 2018 before the hearing took a bizarre turn. Using the flag in the courtroom as a prop, Sullivan incorrectly accused Flynn of being “an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out.” He then questioned whether Flynn should have been charged with treason.

Flynn faced a relatively minor single count of false statements with the likelihood of no jail time — but Sullivan was suggesting that he could have been charged with treason, subject to the death penalty.

That alone would probably serve for a reversal based on judicial animus, especially given the circumstances: prosecutors had noted their satisfaction with Flynn’s cooperation and had no objection to executing the sentencing portion of the deal at that time. Sullivan bullied Flynn into a continuance instead. After the DoJ sawed off the limb onto which Sullivan climbed, it certainly appears that the judge wants some like-minded legal scholars to break his fall and hoist him back up onto another one.

Sullivan might find quite a few, too, unless a higher court puts an end to Sullivan’s circus soon. Turley gets the best of this argument, and the court that just issued Sineneng-Smith is almost certain to concur — if it gets that far.

Addendum: Sidney Powell has filed for a writ of mandamus with the DC Circuit Court of Appeals, writes Red State’s Shipwreckedcrew:

As anticipated, defense counsel Sidney Powell has filed a Petition for Writ of Mandamus with the United States Court of Appeals for the District of Columbia Circuit. …

A “petition for writ” is a legal vehicle through which a party seeks to have a higher court direct that a lower court take specific action as set forth in the petition, on the basis that existing legal authority compels the lower court to act in a manner sought by the moving party, and the lower court has no discretion or authority to act in any other manner.  It seeks an order from the higher court “mandating” that the lower court take the specific action requested in the petition.

The petition filed by Gen. Flynn’s counsel makes three specific requests for relief:  1) that the motion by the government to dismiss the prosecution of Gen. Flynn be granted; 2) that the orders entered by Judge Sullivan allowing the submission of amicus briefs be vacated; and 3) that the case be reassigned to a different judge in the District of Columbia District Court for any further proceedings in the case.

Be sure to read the whole thing. Ship offers some criticism of Powell’s arguments but thinks she hit a home run overall.