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Acting Solicitor General Tells Full D.C. Circuit That Barr Has Secret Reasons for Dismissing Michael Flynn Case


WASHINGTON, DC - JULY 28: U.S. Attorney General William Barr testifies before the House Judiciary Committee in the Congressional Auditorium at the U.S. Capitol Visitors Center July 28, 2020 in Washington, DC. In his first congressional testimony in more than a year, Barr faced questions from the committee about his deployment of federal law enforcement agents to Portland, Oregon, and other cities in response to Black Lives Matter protests; his role in using federal agents to violently clear protesters from Lafayette Square near the White House last month before a photo opportunity for President Donald Trump in front of a church; his intervention in court cases involving Trump's allies Roger Stone and Michael Flynn; and other issues.

During oral arguments before all active judges sitting on the U.S. Court of Appeals for the D.C. Circuit on Tuesday, Acting U.S. Solicitor General Jeffrey Wall raised several interesting points about the involvement of Attorney General William Barr in the trajectory of the government’s prosecution of former National Security Advisor Michael Flynn.

Wall said Barr was directly involved with the case and had secret reasons for seeking the case’s dismissal. Wall argued that the judiciary cannot probe the government’s reasons to seek the dismissal of the Flynn case; he even wildly argued (in response to a hypothetical) that the judiciary would be forced under the law to dismiss a case where direct evidence proved a prosecutor had been bribed by a defendant to seek the case’s dismissal.

The legal issue is whether U.S. District Judge Emmet Sullivan, who is overseeing the Flynn case, can be forced to dismiss the case without a hearing to probe the government’s sudden about-face as to Flynn. Flynn pleaded guilty and was poised to be sentenced. Flynn shockingly moved to withdraw his plea; the government even more shockingly moved to dismiss the case.

Circuit Judge David S. Tatel (a Bill Clinton appointee) asked Wall just how far Judge Sullivan could dig into the government’s rationale for asking to toss the case under Rule 48(a) of the Federal Rules of Criminal Procedure. Tatel cited other court matters (such as Batson hearings involving race-based decisions to strike jurors) which allow judges to probe the thinking of prosecutors. Circuit Judge Merrick Garland (another Clinton appointee) pushed further.

Wall recapped the government’s stated reasons for dismissing the case, citing three such reasons. First, newly discovered evidence of misconduct resulted in a decision by the government that it could not prove beyond a reasonable doubt that Flynn’s lies to the authorities were material. Second, the interests of justice were no longer served, in the government’s view, by continuing to prosecute Flynn. The third reason was never fully marked or fleshed out, because Wall said this: “The attorney general of course sees this in the context of nonpublic information from other investigations, like . . . ”

Garland interrupted. Then, Wall went further, suggesting there “may” have been reasons Attorney General William Barr personally used to toss the Flynn case — secret reasons which were never uttered to the court.

“It may be possible the Attorney General had before him information that he was not able to share with the court, and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the executive branch,” Wall said of the DOJ’s inner workings.

Garland then explored what, perhaps, the DOJ might say if a judge started to ask for specific rationale for dropping the case. The government has argued profusely that Judge Sullivan does not have the power to probe the decisions of prosecutors under a Rule 48(a) hearing — in part because the Constitution separates the prosecutorial function of government (the executive branch) from the judicial branch.

Wall circled back to the notion that justice was no longer served by Flynn’s continued prosecution by indicating Barr himself pulled the plug on the case.  “The Attorney General made that decision or that judgment on the basis of lots of information; some of it is public and fleshed out in the motion [to dismiss]; some of it is not.”

That statement seemed to confirm what the previous one merely suggested.

Wall then circled back to the oft-repeated complaint about Sullivan’s process for appointing former judge John Gleeson as an amicus in the matter.

“After Judge Gleeson wrote his Op-Ed calling for a factual inquiry, he [Gleeson] was immediately appointed as an amicus as part of a process the district court has now explained to this court was meant to probe our motives,” Wall said, again balking that the government objected to any probe into its motives beyond what it stated on the record. Such motives, he argued, were the function of prosecutorial discretion.

Wall seemed to slip up with that explanation by almost referencing President Donald Trump himself — but then backtracked quickly.

“There has been an order setting up a process to make us defend the executive — the exercise of a core executive duty.  And, I think — to be fair, I think it doesn’t take seriously the harms to a coequal branch from a situation like that where we are called in to have questions and accusations thrown our way that we’ve got to respond to.”

Wall didn’t think prosecutors should have to face questions or even accusations of prosecutorial impropriety, perhaps done at the bidding of Trump himself.

Garland rubbished the presumption by reminding Wall that he himself faced accusations “every day” when he was an assistant U.S. attorney. Part of the job of being a prosecutor, Garland said, was to face such questions from defense attorneys and from judges.

“I don’t understand how merely being the subject of accusations from the other side or even from the judge who often questioned what the government was doing” was a huge problem, Garland suggested. “If each of those was a separation of powers case, we would have a large number of mandamus cases in this circuit.”

In other words, Garland suggested that Rule 48(a) should allow some inquiry by a judge into precisely why a defendant would plead guilty, why the government would urge sentencing, and then, suddenly, reverse course.

Circuit Judge Thomas B. Griffith (a George W. Bush appointee) then asked Wall how the courts should react in cases where favoritism was being displayed to a politically powerful defendant.

Wall said a hearing should not even be held in such matters.

“No,” Wall said; “that is a concern that is not the domain of Rule 48.  That has political . . . ”

Griffith cut him off to cite authority for the assertion; Wall listed a few cases.

“It doesn’t matter what the — the district court may believe that the government has a bad motive, and that bad motive could be all sorts of things, favoritism or something else, but everybody agrees that the United States can’t be made to bring a prosecution even if it should; even if it’s motive for not commencing one is irregular or impermissible,” Wall said.  “And the same is exactly true of dismissing or making a prosecution; there are checks on that; plenty of checks . . . ”

Griffith then asked Wall to define the “outer limits” of what Judge Sullivan could do.

Wall said Sullivan could make inquiries to understand the legal nature and substance of the motion, but nothing more as to the “substantive matter” underlying the motion.

Griffith asked Wall what sort of hearing would be appropriate in the Flynn case.

“On these facts, I don’t think there is an appropriate hearing that could be had,” Wall responded.

In other words, no more discussion at the district court level was permissible in Wall’s view.  He explained that Sullivan understood the law.

“He wants a hearing to probe our motives; no sort of hearing like that is going to be permissible,” Wall said.

Circuit Judge Patricia Millett, a Barack Obama appointee, asked more questions; Wall confirmed that Barr was directly involved with the Flynn case.

“The attorney general was involved here,” Wall said.

Wall further argued that a judge would be forced to dismiss a case under Rule 48(a) and Article II and Article III of the Constitution if the court was being lied to by the government in its motion to dismiss.  (This argument referenced a previous hypothetical from Judge Robert L. Wilkins about whether a judge would be forced to drop a case at the request of a prosecutor who evidence proved had been bribed by a defendant.) Wall said that the only remedy in such an obscene perversion of justice would be sanctions and contempt:  the judge would be forced by the law to drop the case.  Even if the prosecutor was bribed.

That is the official position of the U.S. Government.

Circuit Judge Cornelia Pillard continued the discussion by asking about the inherent constitutional role of the court in preventing the abuse of its own processes.  Despite asking for Flynn to be sentenced and then asking Flynn not to be sentences, Wall said the government was not asking the court to contradict itself because the attorney general (Barr) found it no longer in the interests of the United States to continue the case against Flynn.

“Exactly!  Exactly!  It’s just striking and remarkable:  what is the government worried about?” Pillard questioned, again referencing the government’s recalcitrance in having its thought process examined by the judiciary.

[Image via Chip Somodevilla/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.