Judge Sullivan Can Reject the Government’s Motion to Drop Flynn’s Case

In the wake of Attorney General William Barr’s unprecedented decision to drop the Department of Justice’s years-long prosecution of former Trump national security advisor Michael Flynn, many are asking: Is this the end of the case? Two recent orders issued by Judge Emmet Sullivan, the judge presiding over Flynn’s prosecution, make clear the answer is no.

First, exercising the court’s inherent authority, Judge Sullivan indicated on May 12 that he will welcome amicus curiae briefs from anyone who may have a “perspective that can help the court beyond” what “the parties are able to provide,” given that both Flynn and the government are now seeking the same outcome. Then, the next day, Judge Sullivan appointed an independent lawyer—former federal prosecutor and U.S. District Court Judge John Gleeson—to advise him as to whether he should grant the department’s request to dismiss the case. (Prior to Judge Sullivan’s order, Judge Gleeson co-authored a Washington Post op-ed arguing that the court should carefully review the government’s motion).
Some commentators have questioned whether Judge Sullivan has the authority to deny the government’s motion. In the immediate aftermath of the Justice Department’s motion, the early conventional wisdom—including on Lawfare—seemed to be that precedent allowed the judge virtually no leeway. Since then, some scholars, including Noah Feldman and Larry Tribe, have countered the claim that Sullivan’s role is to be a potted plant. But to our knowledge, no one has offered a detailed analysis of the legal issues that Judge Sullivan now confronts.

Two of us, along with colleagues at Protect Democracy, represent over 960 former federal prosecutors and former high-ranking Justice Department officials (the number continues to grow). On their behalf, we plan to seek leave to file an amicus brief in the Flynn case—a current draft of which readers can find here—once a briefing schedule is set.

Our conclusion is clear: Judge Sullivan does not merely have the authority to review the Department’s motion to dismiss. As courts have described it, he has a “duty” to ensure that the dismissal is in “the public interest” and is not “tainted by impropriety” or “bad faith.” And if, after careful review, he finds that the motion is in fact tainted, his duty is equally clear: He must deny it.

Given the unique circumstances of this case—including the nature of Flynn’s actions, the Justice Department’s remarkable reversal, and the facially implausible arguments the department has offered to support that reversal—Judge Sullivan’s obligation to conduct a thorough inquiry into the government’s decision is of the utmost importance. Assisted by Judge Gleeson, he should conduct an evidentiary hearing into the circumstances surrounding the government’s change of heart. And if that hearing confirms what the already available public record seems to show, Judge Sullivan should reject the government’s motion and proceed to exercise the judiciary’s core task at the end of every criminal case in which the defendant has already pleaded guilty: impose a sentence.

Rule 48(a) Requires Judges to Reject a Dismissal that Is Not “in the Public Interest”

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.”

Frampton’s conclusion is supported by the history of Rule 48’s adoption. When the rule was first submitted to the Supreme Court for approval, it codified the prosecutor’s unchecked common law power to dismiss a case. But the Supreme Court sent that proposed draft back to the drafting committee, with a citation to the high court’s own recent opinion in Young v. United States. In that case, the court declared that the judiciary—in conjunction with the executive branch—assumes a special role in ensuring that the criminal law is justly administered. The court wrote: 

The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing officers. . . . [T]he proper administration of the criminal law cannot be left merely to the stipulation of parties. (emphases added)

Subsequently,the Supreme Court inserted the phrase “by leave of court” when it issued the final version of Rule 48. As one of the leading decisions interpreting Rule 48 observes, this drafting history makes it “manifestly clear that the Supreme Court intended to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice.”

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. 

Ammidown remains the touchstone opinion interpreting the scope of trial courts’ authority under Rule 48. The Supreme Court has cited Ammidown with approval in its own case law interpreting Rule 48, and Judge Sullivan himself cited Ammidown as his circuit’s primary Rule 48 precedent in a 2019 opinion resolving a prosecutorial-harassment claim. The D.C. Circuit also continues to treat Ammidown as the circuit’s seminal Rule 48 opinion—including in a more recent opinion, United States v. Fokker Services.  

Some commentators have read Fokker as effectively wiping out Judge Sullivan’s authority to deny the government’s request in Flynn’s case, given that opinion’s sweeping assertion that “decisions to dismiss pending criminal charges … lie squarely within the ken of prosecutorial discretion,” leaving no “substantial role for courts.” But it would be a mistake to overread this passage. Fokker concerned a trial court’s authority under the Speedy Trial Act to interfere with a proposed deferred prosecution agreement, essentially a form of pretrial probation in which a case is put on hold for a year or more while the prosecutor monitors the defendant’s behavior. No Rule 48 motion was filed in that case, which means the court of appeals had no occasion to revisit or alter its governing opinion in Ammidown.

More importantly, what Fokker Services says about Rule 48—read in its proper context—actually supports the proposition that Judge Sullivan has the authority to review the government’s request in Flynn’s case. Indeed, the Fokker Services court drew a sharp distinction between cases in a pretrial posture—like all deferred prosecution agreements—and cases like Flynn’s in which a defendant has pleaded guilty and the court is called upon to impose a sentence. In drawing this distinction, the Fokker Services court repeatedly cited Ammidown with approval, reaffirming that opinion’s primary place in the doctrinal framework. And as Ammidown makes clear, a trial court in Judge Sullivan’s position “should not be content with a mere conclusory statement by the prosecutor that dismissal is in the public interest.” Rather, as the Supreme Court later explained in its own leading case on the subject, the trial court must conduct an “examination of the record” in order to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.”

Appellate case law interpreting this standard is sparse, presumably because the overwhelming majority of prosecutorial requests to drop cases are not tainted with impropriety. But while there do not appear to be cases in which appellate courts have prevented the Justice Department from dropping cases for reasons other than prosecutorial harassment—and while appellate courts have sometimes overruled district courts for rejecting prosecutors’ Rule 48 motions—the courts have consistently held that trial judges have a responsibility to consider whether a dismissal motion fails to “serve due and legitimate prosecutorial interests,” represents a marked “departure from sound prosecutorial principle,” is based on “a sham or a deception,” is “tainted by bad faith,” or is driven by base personal interests. The courts of appeals, in other words, have gone out of their way to insist that trial court judges not only can but should be vigilant against extreme cases of prosecutorial abuse—and and have thus always held out the possibility of a case so extreme that such a move would be necessary. This is that case.

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