Jun 1, 2020

Michael Flynn Litigation — Robert Jackson, Prosecutorial Discretion, Rights and Fairness Battle the Democratic Party Faction

Robert Jackson
There are occasions in legal-political battle where one side is corrupt, malicious and unlawful and the other side is, in a phrase, on the side of angels.

Such a case is being litigated now in a federal criminal case in the United States Court of Appeals for the District of Columbia Circuit, (United States of America v. Michael T. Flynn).

Among the extraordinary features of this case is the fact that the United States of America and the defendant, Michael T. Flynn, both have petitioned the presiding federal district court to drop the case in the interest of justice.

But an outlaw U.S. Dist Judge, Emmet Sullivan, is working to prosecute the case by proxy, despite the facts that he is also the presiding judge, and the lawful prosecutors have determined there has not been a commission of crime and that the case is rife with law enforcement misconduct.

One can agree with this finding of the U.S. Dept of Justice, but political factions who want Flynn found guilty of a crime do not have legal authority in a court of law, except with Sullivan. [See UNITED STATES OF AMERICA, v. FOKKER SERVICES B.V., APPELLANT (No. 15-3016, 15-3017), Judge Sri Srinivasa: "The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences."]

Sullivan is tearing up American jurisprudence in his bizarre conduct that, if left uncorrected in appellate court, threatens criminal justice every bit as much as Sullivan's reputation as a jurist, which is in tatters.

But Sullivan is taking his cues from the Washington Post, the New York Times and the Democratic Party, so rights, liberty and justice will have to wait for defendant Flynn — whose only crime appears to be political unorthodoxy.

Writes Glenn Greenwald in The Intercept:

[T]he Justice Department filed a motion seeking to dismiss the prosecution of Flynn based, in part, on newly discovered documents revealing that the conduct of the FBI, under the leadership of Director James Comey and his now-disgraced Deputy Andrew McCabe (who himself was forced to leave the Bureau after being caught lying to agents), was improper and motivated by corrupt objectives. That motion prompted histrionic howls of outrage from the same political officials and their media allies who have spent the last three years pushing maximalist Russiagate conspiracy theories. ...

More disturbingly, liberals and Democrats — as part of their movement toward venerating these security state agencies — have completely jettisoned long-standing, core principles about the criminal justice system, including questioning whether lying to the FBI should be a crime at all and recognizing that innocent people are often forced to plead guilty — in order to justify both the Flynn prosecution and the broader Mueller probe.

The appellate court — hearing Flynn's May 19 Petition for a Writ of Mandamus that seeks an order that Sullivan or another judge dispatch the case — is the repository of rigorous legal argument and historical disquisition, specifically ample reference to the jurist Robert Jackson's writings on prosecutorial discretion and the corrupt use of the office of the prosecutor.

Former United States Attorney General Edwin Meese III and the Conservative Legal Defense and Education Fund in Support of Petitioner amicus brief today lays out a brief history of Flynn's case and the edifice of justice exemplified in the writings of Judge Jackson.

States the Meese brief (pp 3-4, Statement of the Case):

On January 29, 2020, General Flynn filed a Motion to Dismiss Case for Egregious Government Misconduct and in the Interest of Justice. That same month, Attorney General William P. Barr tasked Jeffrey Jensen, U.S. Attorney for the Eastern District of Missouri, to conduct a review of how the Flynn case had been handled by the Department of Justice. During the week of May 4, 2020, Jensen recommended to the Attorney General that the prosecution be dismissed. On Thursday, May7, 2020, the Department of Justice moved to dismiss the charges with prejudice against Flynn.

On Monday, May 11, 2020, the Washington Post published an op-ed highly critical of the Department’s May 7, 2020 motion, accusing the government of an attempt to corrupt Judge Sullivan and calling for the appointment of independent counsel to act as amicus on behalf of the court.

On Tuesday, May 12, 2020, the day after the Washington Post article appeared, Judge Sullivan said that he would allow third parties to weigh in on the Flynn case, and advised that he was proceeding under the provisions relating to amicus briefs in Local Civil Rules. He also stated that “at the appropriate time”he would set a schedule for interested parties to comment on the case.

Then, on Wednesday, May 13, 2020, just two days after the Washington Post op-ed, Judge Sullivan appointed the co-author of that article, retired District Judge John Gleeson, as amicus curiae: (i) to present the argument opposing the Department of Justice motion to dismiss, and (ii) to “address whether the Court should issue an Order to Show Cause why Mr. Flynn should not beheld in criminal contempt for perjury.”

On Tuesday, May 19, 2020, General Flynn filed a 44-page Emergency Petition for a Writ of Mandamus in this Court asking that:  (i) the prosecution against General Flynn be dismissed as the Department of Justice had requested;(ii) the district court order appointing an amicus curiae be vacated; and (iii) the case in district court be reassigned from Judge Sullivan.

On Thursday, May 21, 2020, a three-judge panel from the D.C. Circuit issued an order requiring Judge Sullivan to respond in 10 days (i.e., by June 1,2020) addressing the petitioner’s request and inviting the Department of Justice to respond “in its discretion within the same 10-day period” regarding whether Sullivan should be reassigned. The order requested Judge Sullivan to provide information regarding his decision not to immediately grant the DOJ request to dismiss the case against General Flynn.

Four new filings were received by the Court today, June 1.

An argument by Meese prominently notes Jackson's commitment to a society protecting free citizens by a prosecutor who pursues and advocates truth without regard to Party, or any other external interest, (pp 4-12).

Writes Meese: "the citizen’s safety lies in the prosecutor who ... seeks truth and not victims, who serves the law and not factional purposes, and who approaches [the] task with humility," (The Federal Prosecutor: An address by Robert H. Jackson, Attorney General of the United States, April 1, 1940)

State the brief:


The Government’s Motion to Dismiss (“Gov’t Motion”) filed in District Court, and two of the amicus briefs filed herein, have all cited former Attorney General and Associate Justice of the U.S. Supreme Court Robert H. Jackson in support of opposing claims.

The Government’s Motion to Dismiss cited Justice Jackson’s famous April1, 1940 address to U.S. Attorneys for the proposition that “the citizen’s safety lies in the prosecutor who ... seeks truth and not victims, who serves the law and not factional purposes, and who approaches [the] task with humility.” Gov’t Motion at 19. Supporting the Petition for Mandamus seeking dismissal, the amicus brief filed by the States of Ohio, et al. cited a 1940 law review article by Justice Jackson to describe the discretionary power of prosecutors:  “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” Ohio, et al.Amicus Brief at 4. That brief contrasted actions of government investigators “discovering the commission of a crime and then looking for the man who has committed it,” with what it believes occurred here—“picking the man and then searching the law books ...to pin some offense on him.” Id. at 5.

Opposing the petition for mandamus, the amicus brief filed by the Watergate Group relied on a third 1940 quotation from Justice Jackson that the safety of both citizens and of the Republic “‘lies in the prosecutor who . . .serves the law and not factional purposes.’” Watergate Group Amicus Brief at16.

This amicus brief offers some further thoughts on the lessons to be learned from Justice Jackson’s guidance that can be applied to help decide this case. Long an admirer of Justice Jackson, in 2005, Attorney General Meese wrote a law review article entitled “Robert H. Jackson, Public Servant,” 68 ALBANYL.REV.777 (2005), which traced Jackson’s illustrious career from trial attorney, to General Counsel of the Bureau of Revenue, to Assistant Attorney General for the Antitrust Division, to Solicitor General of the United States, and then, in 1940, being sworn in as our nation’s 57th Attorney General, and his subsequent service as an Associate Justice of the U.S. Supreme Court, and Chief Prosecutor at the Nuremberg Trials following World War II.

During Justice Jackson’s brief tenure as Attorney General, he made a lasting contribution to the Department of Justice in promoting fairness in the administration of justice and in protecting constitutional rights. In his Albany Law Review article, former Attorney General Meese identified the central lessons to be learned from Justice Jackson’s April 1, 1940 remarks as follows:

Jackson recognized the power of the government lawyers sitting before him: The prosecutor, he said, has more control over life, liberty, and reputation than any other person in America.... He pointed out the tremendous discretion that is held by prosecution the ability to decide whether to investigate, order arrests, seek an indictment by a grand jury, present a case for trial or dismiss it, and even to make recommendations on sentencing and parole. He went on to say that: While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. [Id. at 18.]

Based on Justice Jackson’s lessons, as amplified by subsequent developments, three observations are offered for the court’s consideration.

First, Justice Jackson’s article articulated a principle that is applicable to the authority of the government to dismiss the case against General Flynn, when he identified among a federal prosecutor’s powers —the decision to present a case for trial or dismiss it.

Second, Justice Jackson knew that those who wield this great prosecutorial power can, from time to time, act “from malice or other base motives.” If prosecutors can abuse their power, who has responsibility to correct that injustice? Some of the amicus briefs filed herein erroneously would entrust that power exclusively in the federal judiciary. In truth, in the first instance, that responsibility and power is vested in the Attorney General of the United States. Although each federal prosecutor has a measure of authority to act for the United States, “The Attorney General s the head of the Department of Justice.” 28 U.S.C. § 503. Except with respect to certain discrete matters not involved here: “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General....” 28 U.S.C. § 509. Here, the Attorney General assumed that duty, tasked an experienced prosecutor with investigating the matter, and then took decisive action to fulfill his duty with the filing of the government’s motion to dismiss.

Third, in the 44 years between the time Attorney General Jackson left that office in 1941 and the time Attorney General Meese assumed that position in 1985, and even more since then, the power of the federal prosecutor has only grown.2 An experienced retired appellate federal judge explained the way the federal criminal justice system now works that few could dispute:

2 In 1998, former Attorney General Meese chaired a Task Force of the American Bar Association’s Criminal Justice Section which reported on The Federalization of Criminal Law. That report, issued 22 years ago, found it impossible to determine exactly how many federal crimes could be prosecuted,but that several thousand were on the-books. Id. at 2.  Although the overwhelming number of prosecutions occurred at the state level, members of Congress found it increasingly difficult to resist the temptation to respond to each wrongdoing reported in the media by criminalizing more and more types of conduct, resulting in an explosion of new federal crimes.

The machinery of federal criminal investigation and prosecution,with its grand juries, wiretaps, DNA tests, bulldog prosecutors, pretrial detention, broad definition of conspiracy, heavy sentences(the threat of which can be and is used to turn criminals into informants against their accomplices), and army of FBI agents, is very powerful; there is a fear that fed enough time and money, it can nail anybody. There is some truth to this, since there are literally thousands of federal criminal laws, many of them at once broad, vague, obscure, and under enforced. [R. Posner, An Affair of State at 87 (Harvard Univ. Press: 1999).]

Of even more direct relevance here, Senior District Judge Jed S. Rakoff explained some of the reasons that people plead guilty:

The... suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a“contract of adhesion” in which one party can effectively force its will on the other party....  [T]he prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led to a significant number of defendants to plead guilty to crimes they never actually committed. [Jed S. Rakoff, “Why Innocent People Plead Guilty,” The New York Review of Books (Nov. 20, 2014).]

This is what happened to General Flynn. See Petition for Mandamus at 3 n.1 and 27 for a discussion of threats to prosecute his son.

While the prosecution of General Flynn was originated by a Special Counsel, the prosecution still was brought on behalf of the U.S. Department of Justice. The Motion to Dismiss charges against General Flynn was filed by the United States Attorney for the District of Columbia, on the authority of the Attorney General of the United States. In that detailed, 20-page motion, the Department of Justice explained its view that General Flynn had actually pled guilty to a crime that did not exist since his statement was not “materially” false with respect to a matter under investigation, as required by the statute, as there was “no legitimate investigative basis.” Gov’t Motion at 1-2. That motion went on to detail improprieties within the FBI in the investigation and prosecution of General Flynn. Id. at3-10. The motion was unusual but not extraordinary, as it was filed consistent with established Department protocols:

Under the Principles of Federal Prosecution, the Government should not prosecute a defendant “unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.” Justice Manual 9-27.220. [Motion to Dismiss at 12.]

In such a circumstance, it was the responsibility of the Attorney General to act in accord with the principles laid out by Justice Jackson to terminate a baseless prosecution in the interest of justice.

An amicus brief was filed by Lawyers Defending American Democracy (“LDAD”), an organization formed in 2019, whose first official action was to call for the resignation of Attorney General William Barr. LDAD’s brief asserted that the Flynn petition raised “grave rule of law issues[,] threaten[ing] public confidence in the administration of justice that this and other Article III courts have sought to foster for more than two centuries.”LDAD Amicus Brief at 1.  This is a most remarkable claim for a court system whose job is to “say what the law is” and only, then, with respect to cases and controversies. The duty of courts is not to “foster public confidence,” but to administer the law impartially. See Deuteronomy 1:17. If the courts do the latter, they will inspire the public’s confidence. If courts aspire to do more, then law will become what the judges say it is, and that will lead the nation into judicial supremacy where the people are ruled by judges, not by the rule of law. LDAD seemingly would prefer a world without separation of powers, where the judicial process is the only way that justice may be administered and achieved. 3 See LDAD Amicus Brief at 5.

3 Likewise, LDAD appears to believe that Judge Sullivan must conduct some evidentiary hearing before he rules on the motion to dismiss.  But, as the Fifth Circuit noted, “If [United States v. Ammidown, 497 F.2d 615 (D.C. Cir.1973)] is read to place the burden on the prosecutor to prove that dismissal is in the public interest, however, then it is contrary to our rule enunciated in Cowan and to the Supreme Court’s holding in Rinaldi.” United States v. Hamm, 659F.3d 624, 631 n.23 (5th Cir. 1981) (en banc).

General Flynn’s case illustrates how the discretionary acts of the Executive Branch can protect the constitutional rights of criminal defendants, 4 by means of prosecutorial discretion. ...
I do not believe Robert Jackson would fair well today as an attorney general as the Democratic Party has become a Party-first movement.

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