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USA v. Flynn Part III: David Markus Urges Court to Promptly Permit the Dismissal of Flynn indictment -- Don Samuel Disagrees

by: Don Samuel -- David Markus

There are very few criminal defense lawyers who I admire more than David Markus in Miami. His blog is inspirational. So is his intellect and fierce advocacy. He has written an opinion piece in the Washington Post expressing his view that the judge in DC should promptly permit the dismissal of the Flynn indictment. I am reprinting David's argument below. But I disagree with his conclusion. In the next post, I will explain the basis for my disagreement. Here is David's argument:

​U.S. District Judge Emmet G. Sullivan on Tuesday took action to delay the Justice Department’s move to drop charges against former national security adviser Michael Flynn. Sullivan says he expects legal experts and independent groups to weigh in on the department’s decision not to prosecute Flynn for lying to the FBI.

The judge’s ruling was a mistake: He should have immediately dismissed the case. Sullivan certainly should not heed those urging him to deny the Justice Department motion, which would force prosecutors and Flynn to a sentencing hearing or a trial that neither party wants. John Gleeson, a former judge, and two others thoughtfully argued this week that Sullivan should do just that. And on the heels of that opinion, Sullivan has appointed Gleeson to argue against the motion to dismiss and to explore whether Flynn should be held in contempt.

Judges, though, have no special interest in forcing prosecutors to prosecute. The nation’s court system is meant to adjudicate disputes between parties and to protect defendants from overreaching prosecutors. It is an adversary system, meaning that each side is responsible for presenting its own case.

In the case under discussion, the dispute was initiated by the federal government against Flynn. The charge was fairly limited as far as federal prosecutions go, a sole count of making a false statement, which carries a maximum five-year sentence (low by federal standards). Flynn had pleaded guilty to this charge and the prosecution had asked for no jail time.

But Flynn later filed a motion to vacate that plea agreement based on a number of arguments, including that recently disclosed documents show his innocence. After those documents came to light, the Justice Department filed its motion to dismiss. Because that ends the parties’ dispute and because granting the dismissal does not implicate the defendant’s rights, Sullivan should have simply granted the motion without further action.

Instead, now he has appointed a former prosecutor and judge to formally oppose the dismissal and intends to hear from third parties about the government’s decision to dismiss. That sets a dangerous precedent. Do we want judges asking prosecutors about the reasons for dismissal in an ordinary case or going so far as to appoint special prosecutors when a coequal branch has declined a case? There is simply no legal basis to get into the reason why the case is being dropped, even if it appears the reason was political.

Those arguing for Sullivan to force prosecutors and Flynn into a sentencing hearing say that because Flynn already had been adjudicated guilty, the judge should not dismiss the case. Like 90 percent of federal defendants, however, Flynn pleaded guilty instead of proceeding to trial. And not only that, but he agreed to waive his right to appeal, to waive any constitutional defects to his conviction and to become a government informant.

Defendants give in to those demands in the federal system because of the inordinate power that prosecutors have to influence a defendant’s ultimate sentence. If Flynn, who has no criminal record and the ability to hire good lawyers, would sign a deal such as this, imagine the pressure exerted on less-powerful defendants to give up all their rights. The reality is that deals like this are commonly signed in federal courts by the innocent as well as the guilty.

The critical question is not Flynn’s guilt or innocence. The point is that both sides want to vacate his plea deal and dismiss the charges. And no jury ever considered evidence of Flynn’s guilt. The only time that judges should weigh in on prosecutorial decision-making is when the executive branch overreaches in a case. In other words, the judiciary is meant to act as a check on prosecutorial power and to protect defendants, not to act as a check on prosecutors being too lenient.

Consider a recent Justice Department attempt in California to force a defendant to waive his right to later ask for compassionate release. In that case, Allan Funez Osorto and the Justice Department executed a plea agreement in which Osorto agreed not to ask Judge Charles Breyer for compassionate release for 180 days, even though the statute only requires waiting for 30 days.

Breyer rejected the deal, saying, “It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table.”

The judge added that if a defendant doesn’t take an offered deal, “he does so at his peril,” because “on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on.” Breyer was right to check the government’s immense power, and Sullivan would be wrong to compel them to use it.

In the Flynn case, critics of the attorney general’s decision to drop the prosecution say it was likely political. They may be right. But those political issues will play out with the American public. The legal question is pretty straightforward. The Justice Department brought the case. It’s the department’s prerogative to drop the case, especially where Flynn also wants to vacate his guilty plea. That’s how the adversary system works.