5/15/2020
by: Don Samuel
In the previous post, I copied David Markus's argument (printed in the Washington Post) in favor of a prompt dismissal of the Flynn indictment. I disagree. Here are my reasons:
I have some disagreements with David Markus’s post (or maybe “disagreements” is not the right word; maybe I should say that the relationship between the judiciary and the parties is more complicated than he portrays). There are various times that a judge rejects an agreement between the parties. Most notably at sentencing. If, as David suggests, the judge is only on the bench to adjudicate disputes between the parties, then why do judges routinely reject agreements as to sentences? Why are “binding pleas” so rare in federal court. If two lawyers, both of sound mind and discretion have reached an agreement regarding how a dispute should be resolved, then the judge should just say, “thank you” and go back to chambers. But that is not what happens. There are other contexts in which the court does more than just resolve disputes between two parties – that is, when judges reject agreements – such as tolling the speedy trial clock for the “ends of justice.” Why do these things occur? Because judges have a duty to the public to ensure once the court’s jurisdiction is invoked, the proceedings thereafter meet certain standards that are in the public interest, not just the procedures, but also the outcomes. The public has a right to know; the public has a right to understand; the public has a right to be protected (from dangerous people and from dangerous prosecutors who need to be exposed).
I don’t know what Judge Sullivan will ultimately decide. But as a member of the public, I want to know what happened. I don’t trust the current attorney general to provide an accurate dispassionate explanation; I very much trusted the former Administration’s AG and the prosecutors who initiated this case. I don’t trust the defense lawyer in this case (the defense lawyer has no duty to me to be honest, of course). David and I both know that 99% of the time, the court will permit a dismissal pursuant to Rule 48. And that is because there is a good reason to dismiss the case. But I don’t know if there is a good reason in this case. And as a member of the public, I want to know. I want to know if the prior DOJ is as diabolical as Trump portrays ("ObamaGate" he is screaming), or not. (I think I know the answer, but I would like there to be a public answer, not AG Barr’s unreliable and dishonest claims). In the end, perhaps it is right to dismiss the case. But not because the judge is powerless to ask “why?”