Nearly 1,200 former federal prosecutors and “former high-ranking supervisory officials” with the U.S. Department of Justice (DOJ) signed their names to a brief calling for the judge overseeing the case against former national security advisor Michael Flynn to use his full discretion and to not simply roll over to accommodate the current DOJ’s motion to dismiss the case.
Filed on Wednesday with the U.S. District Court for the District of Columbia, the brief implores Judge Emmet Sullivan to conduct “a searching review of the government’s request” in order “to protect the public interest in the even-handed enforcement of our laws.” The signatures themselves went on for 45 pages.
“I used to be a public defender, which means my job was to go up against prosecutors, not to represent them,” the brief’s author Harvard Law Professor Andrew Crespo said in a statement. “But the rule of law and the norm against political interference at the Department of Justice need defending, too.”
The document is heavy on rhetorical flourish and prose which evokes the notion that America has long been a nation dedicated to the “rule of law,” an arguable idea but a favored phrase of the anti-President Donald Trump resistance in recent years. Critics of the 45th president insist he has pushed the limits of the law to a degree far surpassing any of his most recent predecessors.
“Driven by their respect for the [DOJ] and the rule of law, and drawing on their nearly 14,300 cumulative years of experience enforcing the federal criminal laws, [the former DOJ employees] seek to aid the Court in its resolution of the pending motion to dismiss,” the filing notes in a preliminary section. “Because the government and [Flynn] agree that the case should be dismissed, the Court lacks the benefit of opposing interests as it considers the questions now before it. [The former employees] hope to assist in filling that gap.”
Styled as an amicus brief, the “friends of the court” filing does not explicitly ask for Judge Sullivan to throw the book at Flynn but strongly leans in that direction.
“[I]f after considering the government’s arguments and gathering evidence, the Court concludes that the motion to dismiss is motivated by improper political considerations or otherwise contravenes the public interest, the Court should deny the motion and proceed in due course to sentencing,” the brief suggests.
Legally, the filing relies upon an uncontroversial reading of Federal Rule of Criminal Procedure 48(a), a piece of constitutional common law promulgated by the Supreme Court in 1944. Prior to the high court’s creation of that rule, federal prosecutors “had unfettered discretion to terminate any criminal case, at any time and for any reason,” the filing helpfully notes.
And, in Flynn’s case, the nation’s foremost federal prosecutor, Barr, has instructed his underlings to drop the charges.
The rule, however, changed all that and notes, in relevant part:
The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.
“While a court should ordinarily grant a motion for leave under Rule 48, the text, history, and judicial interpretation of the Rule confirm that a court must reject a prosecutor’s request to dismiss a case if it determines that dismissal would be contrary to the public interest,” the brief argues. “Unique features of this case underscore the need for such judicial review, given the special risk that the government’s motion would not faithfully execute, but rather would frustrate, the fair administration of the criminal law.”
Flynn’s prosecution originally appeared to be a fairly boilerplate application of the Federal Bureau of Investigation’s (FBI) time-honored and well-honed law enforcement techniques that would read as entrapment to most people but from which the agency derives most of its high-profile prosecutions and, thus, legitimacy. The FBI was previously criticized by civil libertarians for entrapping several Muslims by essentially creating crimes from scratch — and few people in the U.S. political or media establishments cared due to the “War on Terror.”
Flynn’s prosecution was very much of a piece with that mindset; the former general was ensnared in then-special counsel Robert Mueller‘s investigation, and the calls for scalps were palpable due to the evidence-optional climate in the country over Russian electoral interference and conspiracy.
Eventually, however, Mueller failed to deliver the goods long promised on the 45th president and the Trump administration was, in turn, emboldened to fight back on that years-long investigatory effort. In recent weeks, allegedly exculpatory material was released that showed the FBI wasn’t particularly interested in Flynn in the first place and that they were aware he wasn’t actually violating the law by speaking with then-Russian ambassador Sergey Kislyak. Additional criticism mounted after former FBI Director James Comey said in a recorded interview that he thought he could simply get away with sending agents into the White House to interview Flynn without following the usual steps of, e.g., asking the White House counsel.
Wednesday’s 79-page amicus brief argues, oppositely, that Flynn’s lies about the conversation were material because the FBI was engaged in a counterintelligence operation against the Trump 2016 campaign at the time he made those allegedly verboten utterances.
“[T]he government’s extraordinary argument that it is lawful for a witness (a government employee, no less) to lie to the FBI about contacts with a high-ranking representative of a hostile foreign power simply cannot hold water,” the filing asserts. “Indeed, the argument is so transparently untenable that it would seemingly make sense only as pretext for some other, unstated rationale for seeking dismissal of this case.”
The conclusion circles back to the purple prose of Washington:
A democracy governed by the rule of law requires a Justice Department that acts evenhandedly when exercising its vast powers. There is ample evidence that under its current political leadership the Department has been weaponized to do the opposite: to punish the President’s opponents and reward his friends. The government’s motion to dismiss the prosecution of a presidential ally who has twice confessed to serious crimes is yet another step down this dangerous path. The career officials who carry out the Department’s work and whom the President routinely maligns cannot speak in their own defense. But this Court has both the authority and the obligation to ensure that federal law-enforcement power is exercised in the interest of the people— the public interest—as the Constitution requires. We respectfully ask the Court to do so.
But the gargantuan wrangling effort to collect those nearly 1,200 names has its detractors — even among high-profile critics of the Trump administration’s policies.
A legal blogger known to Twitter only as @bmaz has been ridiculing the amicus brief even before it was published — calling into question both the argument and the motivations of those who recently gained an appreciation of alleged injustice.
“Gonna start work on an internet petition, er ‘amicus brief’ as the high holy ‘former federal prosecutors’, current or Watergate, relentlessly do,” he wrote on Tuesday. “The one I envision is ‘These people spent careers ignoring evidence and root science to lock defendants up, but only now are bitching.'” The language became more vulgar from there:
Seriously, if you’re a high holy “former federal prosecutor” and think that signing the equivalent of a dumbass internet letter is meaningful, step back, look in the mirror, consider just how much injustice you caused in your career, and shut the fuck up. Your preening is tiring. https://t.co/pYdQCiRvWO
— bmaz (@bmaz) May 18, 2020
It’s so sweet that the holier than thou “Former Federal Prosecutors”, momentary and preening god like @GTConway3d types and whatnot are interested now because of Flynn. Decades have been spent on this issue, and none of you sudden advocates were there. You were on the other side. https://t.co/pYdQCiRvWO
— bmaz (@bmaz) May 18, 2020
Law&Crime circled back to bmaz after he got a chance to survey the document in question.
“The brief is crap,” he said. “Did some 1L or 2Ls write it?”
[Image via Aaron P. Bernstein/Getty Images]
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