The Justice Department’s startling decision to seek dismissal of charges against Michael Flynn is another of the Trump administration’s outrageous assaults on the rule of law. Flynn pled guilty to lying to investigators in Special Prosecutor Robert Mueller’s probe of Russia’s interference in the 2016 election and is awaiting sentencing. He long has been one of the President’s most loyal foot soldiers, and the President has used Flynn’s case to discredit both the FBI and Mueller’s investigation.
Despite the prospect that he would face serious criticism, in March the President said that he was “strongly considering” pardoning Flynn, who had cooperated with Mueller’s probe before changing his mind and claiming that the FBI treated him unfairly. Flynn, who reaffirmed his guilty plea in 2018, nonetheless moved to withdraw it earlier this year, arguing he hadn’t intentionally lied and that his prosecution was in “bad faith.”
Sparing the President the need to pardon Flynn serves Trump’s political interests, but not the interests of justice. That fact led Justice Department lawyer, Brandon L. Van Grack, who was part of Mueller’s team that brought charges against Flynn, to withdrew from the case rather than go along with yesterday’s Justice Department action.
This is not the first time the department has done the President’s bidding in the Flynn case. Last January, under Attorney General William Barr, officials also stepped in to change the sentencing recommendation. In a controversial move, the government reduced its recommendation from six months in jail to probation.
It is extremely rare for prosecutors to dismiss charges after someone has pled guilty, and this moment warrants public scrutiny.
So long as a plea is voluntary and supported by the weight of the evidence, courts will accept it. When defendants plead guilty, they are warned that they are waiving their rights to trial and appeal. And prosecutors may only legitimately agree to plea deals if they are convinced that doing so serves the interest of justice.
The Justice Department’s decision in Flynn’s case highlights the enormous power of prosecutors in the American criminal justice system. As the late Supreme Court Justice Antonin Scalia once noted, the “Executive has the power (whether or not it has the right) effectively to nullify some provisions of the law by the failure to prosecute.”
The ability to decline prosecution, even when probable cause exists, finds its source in the old British concept of nolle prosequi—literally, “unwilling to pursue”—a writ introduced in the sixteenth century that gave a prosecutor the power to end a prosecution without court inquiry. In English law, the power was exercised only by the attorney general, who could summarily stop any of his subordinates from proceeding with charges. But when the practice made its way to America, the nolle power dispersed, lodging itself in the hands of local prosecutors. This power has its parallel in the prerogative of prosecutors to seek dismissal of charges.
When courts have reviewed such decisions, they have accorded prosecutors wide latitude. As a federal district court noted in 1945 “no power or jurisdiction is vested in this court to control…the exercise by the United States Attorney of the discretion and judgment which the law entrusts to him in the prosecution of persons suspected of the violation of the laws of the United States.” Courts have been reluctant to order prosecutors to bring criminal charges in cases where they did not wish to do so or to deny their requests to dismiss charges after they have been filed.
In 1961, the Federal District Court for the Southern District of New York refused to compel the United States Attorney to prosecute an officer of the New York City police department for illegal wiretapping. The court held that when it comes to the decision not to prosecute or to dismiss charges, it is “not the business of the Courts to tell the United States Attorney to perform what they conceive to be his duties.” The prosecutor never has a “duty to prosecute,” since the attorney is “not a rubber stamp,” and his “problems are not solved by the strict application of an inflexible formula.” “Rather,” the court concluded, “their solution calls for the exercise of judgment.”
What sorts of judgments are involved? Legitimate considerations include the likelihood of conviction, the degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing, and the relative gravity of the offense.
Absent from this list are the political desires of the President.
The President clearly has stated his view that Flynn was unjustly targeted. Last week he said that “What happened to General Michael Flynn, a war hero, should never be allowed to happen to a citizen of the United States again!” He insisted, “It’s a disgrace what happened to General Flynn. It’s a—it was a setup from Day One.”
In yesterday’s filing, the government argued that what Flynn told the FBI “was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” and that it was “conducted without any legitimate investigative basis.”
Yet their decision is so confounded by the political pressure brought to bear in this case as to suggest that their claim is a mere pretext. That claim must now withstand judicial scrutiny. All is not over in this case: D.C. Federal District Court Judge Emmet Sullivan, who is presiding in Flynn’s case, still has to sign off on the government’s motion.
All that stands between General Flynn and the freedom President Trump so clearly wants him to have is Judge Sullivan’s resolve to defend the rule of law by publicly examining the government’s motives as well as its decision and rejecting its request.