There are two ways to approach an open question. The first is to ask the straightforward question: Can this be done? It’s not only an honest approach, but one designed to get an answer, if an answer can be given. There isn’t always an answer, of course.
The other way is to ask the “begged” question, where the premise is presumed to be true and, upon that premise, the questioner challenges the answerer to explain why it’s wrong. This is the question that is not only dishonest, but so insufferably entangled in its own fallaciousness that undoing the false premise could require a tome (plus a depth of understanding that the questioner can’t possibly acquire). Only then does the answerer reach the point of addressing the negative synergy of the challenge of why it doesn’t produce an outcome that need not bear any connection, causal or otherwise, between premise and challenge.
Too theoretical, confusing and esoteric for you? Fair enough. Think of what Judge Sullivan is looking at in appointing former AUSA and judge John Gleeson as his friend in deciding what to do in the Flynn case. If the question was asked, “can Judge Sullivan do this?” the answer is short and sweet. Yes. Yes he can.
There are two reasons why, the first being that there’s nothing that says he can’t, and the second being that there is caselaw, notably US v. Fokker Services and US v. Sineneng-Smith,* that permits a judge, where neither the government nor defense will bring to the court arguments questioning a position, a “friend of the court” can be appointed to do so in order to maintain the integrity of the proceedings. This arises because, while the charging decision lies entirely within the discretion of the prosecutor, once the court’s authority is invoked, the uncharging implicates the court’s authority and the integrity of judicial process.
Most of the time this happens, it’s not a problem. When, for example, a prosecutor comes back into court to dismiss a case where a conviction has been obtained, and approved, with direct evidence of error, DNA proving the defendant was the wrong person for example, the judge knows why the prosecution joins with the defense in seeking relief. The judge also knows what went awry in the process and that the court’s integrity wasn’t the problem.
Similarly, in cases like Ted Stevens’ prosecution, when the prosecution comes forward to admit its misconduct in affirmatively concealing information and evidence that exculpated the defendant, that would have been used to prove he was actually innocent, the position is the similar to DNA evidence. The judge knows what went wrong and what the implications of the misconduct were.
Notably, while exculpatory evidence falls within the overall ambit of Brady material, which the prosecution is theoretically required to disclose, Brady is a far broader concept than just exculpatory material. It has a subset called Giglio material, which is information or evidence that can be used to challenge the witnesses against the defendant. This goes even further to include information that would lead to the discovery of such information, even if the information itself is neither exculpatory nor tends to impeach a prosecution witness.
There is a lot wrong, in the sense of inexplicable, about the Flynn prosecution, raising myriad questions about what happened, why and whether it legally changes the outcome. It’s nothing like a DNA exoneration or the Ted Stevens case. It’s got nothing to do with the government’s charging authority, as it’s two guilty pleas, and lost challenges to the pleas, down the road. And there is nothing to show anything either wrong or out of the ordinary about how the case was investigated and prosecuted.
It’s worth stopping at this point, as many will rightfully argue that there’s a huge problem with how the case was investigated and prosecuted, and they have a point. Except that it’s not that there’s no problem, but that the problems are ordinary. Just because they’re new to you doesn’t make them new, and the manner in which the questioning of Flynn proceeded, with FBI agents fully aware of the answers to the questions posed to him in advance, thus created the “perjury trap,” is the way almost every such interview goes.
I agree that it’s wrong, but it’s neither more nor less wrong than it is in every other case of its type. They always play this game, and it’s received judicial approval over and over. And over. If you think it’s a terrible way to proceed, as I do, then we’re all on board and the government should end this disgraceful trap. But that’s not about Flynn, but this improper practice. Had the government moved to dismiss every § 1001 case at the same time as Flynn’s, perhaps it would have sufficed for the purpose of explaining to Judge Sullivan why his efforts and invocation of his authority came to naught, and bringing him into the fold. But the government didn’t.
Lawprof Carissa Byrne Hessick does the heavy lifting of debunking the whole “Judge Sullivan is unethical or political” nonsense. He’s not. But if the government wants to invoke Rule 48(a) and dismiss a post-conviction case, the government must get leave of court, which means that Judge Sullivan is required to first ascertain the propriety of the government’s motion to dismiss. If the government’s explanation is unavailing, then what would he base his decision on?
Enter, John Gleeson. I won’t entertain anyone questioning Gleeson’s integrity or qualifications, no matter what some lunatic told you about him. But here’s the part that has yet to enter into the discussion. Gleeson may well come back to Judge Sullivan with a conclusion that Flynn should not be charged with perjury for his guilty pleas under oath, as that too is a regular occurrence and a product of governmental coercion that puts a defendant in an untenable position.
And Gleeson may similarly argue to Judge Sullivan that while the Flynn conviction received the favorable post-conviction review and consideration it did as a result of his friendship with the administration, it doesn’t mean the government’s acquiescence in dismissal is wrong. What it means is that the government has a whole lot of other cases to review and dismiss that every bit as worthy of dismissal as Flynn’s. It’s all in how you ask the question.
Should Flynn’s case be dismissed? Yes. Should all cases like Flynn’s be dismissed as well. Absolutely. And maybe Judge Sullivan’s appointment of John Gleeson as amicus is going to produce the principled outcome that we can all agree on. Rather than attack Judge Sullivan for doing his job, or John Gleeson for being put in the middle, why not wait to see what comes of it before assuming it’s got to be bad for whatever team you’re on.
*My appreciation to Greg Prickett for an email discussing these cases.
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