In Flynn Case, Independent Judge Draws a Line

      In the movie Judgment at Nuremberg, the once respected German jurist Ernst Janning, played by Burt Lancaster, tries to explain away his part in Adolf Hitler’s corruption of the German judiciary. With the trial over, Janning tells the American judge who presided over his conviction, “I never knew it would come to that.”

      Playing the part of the wise American judge Dan Haywood, Spencer Tracy has no sympathy. “Herr Janning,” Tracy responds, “it came to that the first time you sentenced a man to death you knew to be innocent.”

      In Donald Trump’s America, the so-called Department of Justice is seeking to corrupt the federal judiciary not by sending an innocent person to the death chamber but by asking a federal court to let Trump’s former national security adviser Michael Flynn go free after pleading guilty in December 2017 to the crime of lying to federal law enforcement investigators.

      By fortunate coincidence, the Justice Department’s unprecedented plea to dismiss charges against a guilty-pleading defendant was filed before a federal judge, Emmet Sullivan, who — according to a photo caption in The New York Times —  “is known for holding prosecutors to account.” The Times’ profile opened by recalling Sullivan’s actions in 2008 in appointing a special prosecutor to investigate government misconduct in prosecuting the powerful Alaska senator, Ted Stevens, on corruption charges.

      In Flynn’s case, the Trump Justice Department is taking a different tack by admitting supposed wrongdoing after Trump and Attorney General William Barr both publicly questioned the prosecution. Trump and Barr both contend that the Obama administration FBI undertook the investigation on flimsy grounds and in effect tricked the retired three-star general into lying to the feds on matters immaterial to any legitimate criminal case.

      Barr commissioned a review of the case by a former U.S. prosecutor with the clear expectation that the ex-prosecutor, John Dunham, was to lay out grounds for letting Flynn walk. Dunham, a Republican, did what was expected and his report became the basis for the government’s motion to dismiss all charges against Flynn.

      After receiving the government’s unopposed motion to dismiss the prosecution, Sullivan, now in his twenty-sixth year on the U.S. District Court for the District of Columbia, determined that he needed independent advice on how to rule. Sullivan appointed a retired federal judge from New York, John Gleeson, as “amicus” to marshal any legal arguments against granting the motion.

      Gleeson, known like Sullivan for his independence, concluded in a 73-page brief filed on Wednesday [June 10] that the government’s move to dismiss charges against Flynn was “politically motivated” and amounted to “gross prosecutorial abuse.” Gleeson shredded the government’s conclusions about purported misconduct in the prosecution and found them instead to be “obviously pretextual.”

       “The reasons offered by the government are so irregular, and so obviously pretextual, that they are deficient,” Gleeson wrote. The rationales, the former judge continued, “reveal an unconvincing effort to disguise a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.”

      The administration filed its motion in the Flynn case on May 7 under Federal Rule of Criminal Procedure 48, which allows the government to dismiss a prosecution “with the leave of the court.” In this case, however, the government is arguing that a court has no discretion: no authority whatsoever to grant the motion with the government and the defendant in accord.

      Attorneys for Flynn and the administration argued that position in a 90-minute session last week [June 12] before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. The lawyers were asking the appeals court to issue an order — in legal parlance, a “writ of mandamus” — to direct Sullivan to grant the government’s motion without any further review or in-court proceedings.

      With two Republican appointees and one Democratic appointee on the randomly selected panel, judicial handicappers might have been forgiven for expecting the Trump administration to get its way in the case. But instead, Judge Karen Henderson, a veteran jurist appointed to the D.C. Circuit by President George W. Bush, appeared to agree with her Obama-appointed colleague, Robert Wilkins, that Sullivan should be allowed to rule in the Flynn case without interference at this stage.

      Henderson described Sullivan as “an old hand” and “an excellent judge.” Maybe Sullivan appointed “an intemperate amicus,” Henderson suggested, “but that doesn’t mean he’s going to deny the motion.” Instead, she and Wilkins both appeared ready to allow Sullivan to hold the hearing on the motion that he has scheduled a month from now, on July 15. As the junior judge of the panel, Trump appointee Naomi Rao appeared at one point to favor a sort of middle-ground position that would order Sullivan how to proceed without actually ordering him to grant the motion.

      Rao at one point invited the administration’s lawyer, principal deputy solicitor general Jeffrey Wall, to elaborate on the separation-of-powers argument that Sullivan had no authority other than to grant the motion. “It’s not up to courts to probe whether the government has pure or impure motives,” Wall answered.

      Wall noted that Gleeson, in his brief, had made serious charges of misconduct against both Trump and Barr. Given the political environment, he warned that any hearing on the motion “threatens to be a public spectacle” that could tarnish both the judiciary and the executive. In truth, however, Trump and Barr have already tarnished the executive’s standing beyond repair and Sullivan deserves commendation for standing up for the independent judiciary.