Criminal Justice & the Rule of Law

Oral Argument Summary: U.S. v. Flynn

Anna Salvatore, Benjamin Wittes
Tuesday, September 29, 2020, 9:13 PM

We sat through a four hour hearing in the Flynn case, so you don’t have to.


Michael Flynn at a campaign rally for Donald Trump at the Phoenix Convention Center, 2016 (Gage Skidmore/ BY-SA 2.0/

Published by The Lawfare Institute
in Cooperation With

It is one month before the presidential election; it has been three years since the Michael Flynn case began; and there have been two D.C. Circuit decisions since Judge Emmet G. Sullivan first scheduled today’s hearing on whether to grant the government’s motion to dismiss its case against the former national security adviser.

It being 2020, this hearing takes place remotely. According to the conference call line, there are 500 people listening—more than would fit in Judge Sullivan’s courtroom. The hearing is also very long. It begins around 11:00 am and doesn’t end until just after 4:00 pm. It is also repetitive.

And yet in its own way, it presents squarely and usefully a nationwide debate about the rule of law.

Sidney Powell, the lawyer for Flynn, plays the role of the table-banging Fox News pundit—furiously denouncing the witch hunt against her client that was hatched by Barack Obama and executed by his entire administration and, as she put it, continues to this day. Arguing for the government, Hashim Mooppan and Kenneth Kohl presented the more respectable, Bill Barr version of this story: the department soberly reviewed an errant prosecution, found it wanting and, in the highest traditions of the department, decided not to proceed with it. Court-appointed amicus curiae John Gleeson, meanwhile, stands in for those of us who gape with horror at what seems like an obviously political effort to benefit the president’s crony.

And Judge Sullivan presides, clearly troubled yet not quite signaling whether he is prepared to take on case law that gives the government great leeway in dropping cases.

Sullivan begins by announcing that he will go over the arguments before him on the motion, and then will ask the attorneys if he misstated anything. He says he will not focus on whether there’s a live case or controversy, since the D.C. Circuit has already addressed that. He won’t focus on whether Flynn should be held in criminal contempt of court for perjury. And he won’t focus on whether the court has the authority to appoint an amicus in a case like this.

His focus, he says, will be limited to the “essence of the controversy.” The government wants to dismiss the case against Flynn, despite his having pled guilty—twice. In moving to dismiss, the government has said that continued prosecution of Flynn would not serve the interests of justice—especially, the Justice Department lawyers claim, given recent information concerning the supposed bias of FBI officials. The government argues that Flynn’s false statements in his January 2017 FBI interview were not material to a properly predicated investigation, and the government no longer believes it can prove the falsity of his statements beyond a reasonable doubt.

The Judge Sets the Table

Judge Sullivan summarizes the history of the case at some length.

Flynn pled guilty to making false statements to the FBI in violation of 18 U.S.C. § 1001. Flynn then entered the plea before U.S. District Court for the District of Columbia Judge Rudolph Contreras, but the case was reassigned to Sullivan’s court following Contreras’s recusal.In a subsequent colloquy, Flynn maintained and reiterated his guilty plea. Rather than imposing a sentence in December 2018, Judge Sullivan says he followed his usual practice of delaying sentencing until Flynn completed his cooperation with prosecutors. This is important, Sullivan says, because the court must ensure that the person cooperating receives the entire benefit of his bargain with the government.

According to Sullivan, Flynn chose not to cooperate fully with the government in mid-2019. Flynn filed a motion to compel certain material under Brady v. Maryland. So Judge Sullivan (as he does in every criminal case) issued his standing Brady order. In his motions at this time, Sullivan recounts, Flynn asserted his innocence for the first time and alleged prosecutorial misconduct. Sullivan, the judge recounts, denied his Brady motions and ruled that his false statements to the FBI were, in fact, material.

Flynn moved to withdraw his guilty plea in January 2020. At that time, he submitted a declaration saying that he didn’t lie to FBI agents, as well as a motion to dismiss his case. In February, the government opposed his motion to dismiss and denied his allegations about the conduct of FBI officials.

Sullivan continues to summarize the case history, how the government flipped positions and came to support Flynn’s motion and how he appointed former Judge Gleeson as amicus to oppose the motion to dismiss.

Sullivan says he wants to focus today’s argument on Rule 48A of the Federal Rules of Criminal Procedure, which provides that the attorney general may by leave of court file a dismissal of an indictment, information, or complaint. Gleeson, Sullivan summarizes, argues that based on the text and history of the rule, the court plays a limited but vital rule in deciding whether to dismiss the motion, regardless of whether the motion is unopposed (as it is in Flynn’s case). If judges only had discretion when motions are unopposed, the argument goes, then the judge’s power would often be meaningless. Sullivan notes Gleeson’s argument that the prosecutor’s requirement to obtain leave of court was passed specifically to guard against politically corrupt dismissals.

Per Sullivan’s summary of the argument, Gleeson says that the executive doesn’t have absolute authority over prosecution if it’s seeking to dismiss charges for corrupt, politically motivated reasons. The judge will not automatically agree with a prosecutor’s claim that dismissal is in the public interest, but shall instead demand specific and substantial reasons. Although the court will follow the prosecutor’s wishes in “the overwhelming number of cases,” Rule 48A does not mean that the trial court will serve as a rubber stamp for the prosecutor.

He then turns to the government’s arguments: The government, he says, agrees that he has discretion to review a motion for leave of court; but the government argues that courts should interpret Rule 48A to give the executive branch full power to dismiss charges. To the government, judicial intervention is only necessary when the defendant objects to dismissal; it argues that Rule 48A is meant to protect the individual from prosecutorial harassment. The government contends that prosecuting someone in federal court is an executive authority, so when prosecutors decide to drop a case and the defendant doesn’t dispute that move, the court’s role is limited to determining whether it is really getting the considered institutional view of the executive branch.

The parties also have significant factual disputes. To the government, Flynn’s false statements were not material to Crossfire Hurricane, the investigation into the Trump campaign’s improper dealings with Russia. There was no proper basis to continue a counterintelligence investigation or open a criminal investigation into Flynn, and it’s not clear that his statements were actually false.

To Gleeson, by contrast, the false statements made by Flynn were clearly false and clearly material. Gleeson also argues that the government’s reasons for seeking the case’s dismissal are obviously pretextual. Even if Flynn is not guilty of an underlying crime, his lies could be and were still material—and Gleeson says that the lies went to the heart of Crossfire Hurricane. Still rehashing the contents of Gleeson’s briefs, Sullivan says it’s implausible that the government can’t determine if Flynn is guilty beyond a reasonable doubt. Flynn has already pleaded guilty, after all. Plus, Gleeson argues that the government’s actions constitute gross prosecutorial abuse. He notes how the president has been closely following these proceedings and is personally invested in ending Flynn’s prosecution, and he mentions how the president’s tweets try to break down the independence of the judiciary.

Following this lengthy recitation of the facts and the arguments, Sullivan asks each party to correct him on anything he got wrong with respect to their arguments.

The Government’s Quibbles

He starts with government counsel Mooppan, who has four points in response to Sullivan’s hour-long summary. He doesn’t get far before a tech glitch has him echoing badly, and Sullivan calls a recess so Mooppan can fix his tech. The court reconvenes half an hour later. And Mooppan begins anew.

First, he argues, the D.C. Circuit’s recent en banc decision doesn’t go as far as Sullivan suggests in resolving the jurisdictional question of whether there is a case or controversy before the court. Although the court said (in a footnote) that Flynn’s case isn’t moot until Sullivan grants the motion to dismiss, its decision didn’t answer the question of whether Article III requires Sullivan to grant the motion. When the prosecutor and defendant agree on a dismissal, he contends, there is no longer an Article III controversy, and the case no longer can be heard in court. Sullivan, in other words, has jurisdiction only to realize that he has no jurisdiction.

Second, he argues, while Judge Sullivan should not be a rubber stamp in reviewing 48A motions, he should be rubbery and stampish. Mooppan agrees with Gleeson’s historical concerns about an individual prosecutor being bribed or politically motivated. In those situations, he acknowledges, the court has a role to play. But the role is limited—to make sure the decision to dismiss is a considered decision of the executive branch as a whole, not as the rogue decision of one prosecutor.

Third, Mooppan asserts that the court cannot second-guess the executive branch’s authoritative position. Mooppan cites Nixon v. U.S., saying that the government has exclusive authority in deciding whether to prosecute. Then he cites Fokker Services, a D.C. Circuit opinion from 2016 which contended that Rule 48 gives judges no authority to dismiss leave of court motions based on disagreement over charges.

Finally, Mooppan takes issue with Gleeson’s account of the government’s position on materiality. Judge Gleeson has emphasized that materiality standard is objective, he says. It doesn’t matter whether the government was actually misled. But the critical point here, says Mooppan, is not the formal law of materiality. It is not whether the court could convict or not. The critical point is whether the government wants to pursue a prosecution given the degree of materiality. That is not a question for a court to review, he argues.

He then turns the argument over to Kohl to address the delicate issue of whether the government’s position was, in fact, taken in good faith.

Kohl asserts that there was no corrupt motive for seeking the dismissal of Flynn’s case. The office is “completely unafraid” to discuss why they wanted to dismiss the case.

He emphasizes that once the government finds some evidence of wrongdoing, it’s obliged to conduct a proper investigation. He cites findings from Jeff Jensen, a U.S. attorney in Missouri whom Barr asked to review the case, to argue that the investigation was conducted to “get Trump.” Kohl tells the court, “We don’t throw the evidence on the wall to see what sticks.” He mentions that FBI agents, and Comey himself, couldn’t tell definitively whether Flynn knew he was lying. Kohl also cites text messages by former FBI agent Peter Strzok saying the investigation into Flynn was an “insurance policy” to blunt the effects of Trump, as well as court findings that the FBI mishandled surveillance of Carter Page. He notes the various inspector general findings against various FBI officials.

Kohl reminds Judge Sullivan that the government would need witnesses in order to prosecute this case; there is no recording of Flynn’s responses in his Jan 2017 interview. Who could the Justice Department call as witnesses: Strzok, whom the inspector general described as harboring bias? Deputy Director Andy McCabe, whom the inspector general accused of lying? Kohl asked Judge Sullivan to consider whether the government had ever been forced to continue a prosecution under such circumstances.

Sullivan now turns to a June 2019 letter which Sidney Powell, now Flynn’s attorney, wrote to Attorney General Barr and his deputy asking them to dismiss the case against her client. He reads part of the letter aloud and then notes that Powell, at the time she had written it, had not yet entered an appearance in the case. He wants to know about the propriety of this letter, which he said hasn’t received much public attention. It was, after all, a letter to the attorney general on behalf of a client represented by another counsel asking for his intervention in a criminal case—an intervention that did, in fact, materialize. Wasn’t it “highly unusual” to see a letter from someone who wasn’t, in fact, Flynn’s official attorney reaching out to the attorney general and asking for new prosecutors to be appointed?

Kohl says that the Justice Department chose to review Flynn’s case because of growing evidence of FBI misconduct, as well as the fact that Flynn moved to withdraw his guilty plea. It wasn’t because of the letter.

Sullivan asks whether Kohl knows this or whether he’s speculating. Kohl says he does not know for sure about high-level decision-making at the Justice Department. He has not spoken to the attorney general about the letter, he says. But he doesn’t think it’s a problem for a lawyer or citizen to raise questions about misconduct in a criminal prosecution, in any event.

Sullivan now asks if Barr ever responded to the letter. Was there any kind of meeting between Barr and Powell? Powell interrupts and says she can address this question, but Sullivan replies that he didn’t ask her. Kohl claims he’s unsure of whether there was a meeting between Barr and the attorney.

Sidney Powell’s Objections—and Admissions

Now it’s Powell’s turn.

The attorney for Flynn claims that Barr did not respond to her letter, nor did he ever meet with her. Then, apropos of nothing, she states that she hasn’t spoken with the president either “other than an update into the status of the litigation.”

There is a collective gasp among the 500 people on the conference call. You can hear it over the mute function that has all but a few of them in listen-only mode.

“What?” asks Judge Sullivan, speaking for the masses.

Powell says she can’t discuss the issue, as she claims that any of her conversations with the president are protected by executive privilege. Sullivan reminds Powell that she doesn’t work for the government; there is no executive privilege for lawyers representing private parties or for anyone outside the government.

Powell, in response, admits that she recently spoke personally to Trump and requested that he not pardon her client.

It is a magical kind of a courtroom moment. Here Judge Gleeson has been trying to argue that there’s been political interference in the case, but he’s largely had to rely on the implausibility of the government’s stated reasons for its positions to justify the claim—along with dozens of presidential tweets. But here’s the lawyer for the defendant announcing that she has been briefing the president personally on the status of the litigation.

An incredulous Sullivan asks how many discussions Powell has had with the president about Flynn’s case. She can’t recall the exact number, she says, but she insists that only one meeting was about the status of Flynn’s litigation, and this discussion happened after she petitioned the D.C. Circuit for emergency mandamus relief this spring. When Sullivan wonders aloud if Powell asked the president to appoint new attorneys to the case, she responds, “Oh heavens, no.” She says that the New York Times has reported that she has had five meetings with the president, and she doesn’t resist much when the judge asks her whether that’s accurate.

Sullivan then asks whether it was ethically appropriate for Powell to write her June letter for Flynn despite her not yet having entered an appearance in court on his behalf. Powell responds that she represented Flynn at the time, and that Flynn had already fired his counsel from Covington & Burling.

At Sullivan’s invitation, Powell now launches into her main objections to his summary of the case. In her view, Gleeson should not have been appointed as amicus in a criminal case. He’s not a party in the case, and she wants all evidence of his existence purged from the courthouse. Powell then accuses Judge Sullivan of exhibiting political bias when he chose the latest possible date for a hearing.

Sullivan replies that he was being mindful in case Flynn wanted to file a cert petition following the en banc D.C. Circuit ruling. He chose the latest date on a list provided by Powell to avoid the appearance of acting before the D.C. Circuit returned jurisdiction to his court. He says that the late date wasn’t intended to disadvantage Flynn.

Powell, however, is undeterred. She next levels a couple other accusations against Sullivan; that he’s a hack because he allowed Peter Strzok’s attorney to file evidence, and because he said in his opening summary that Flynn had chosen not to cooperate with the government.

Sullivan says that if she wants to file a motion for him to recuse, she has a week to do so. She appears eager to take him up on the offer.

Sullivan turns briefly to Gleeson and asks him if he has any comments on the judge’s summary. Gleeson says it is comprehensive and accurate.

Sullivan Questions Government Counsel

So Sullivan moves on to questioning the government counsel. What happens, he asks, if he denies the motion for leave of court? He then asks about the status of the ineffective assistance of counsel issue.

Kohl says that Flynn’s motion to withdraw his guilty plea has not been resolved, and he suggests that it would have to be granted. He understands the court’s point that sentencing has already commenced, but he argues that motions to withdraw a guilty plea are liberally granted in the D.C. Circuit. He also says that the Justice Department has reviewed the records from Covington—Flynn’s jilted ex-firm—and says the Department noticed a concerning “understanding” among the Covington lawyers that Flynn’s son would not be prosecuted if Flynn cooperated. Judge Sullivan may need to examine that, he says.

Mooppan hops in to argue that Rule 48A does not apply differently pre-plea versus post-plea. If Flynn has valid grounds to withdraw his guilty plea, and if the prosecutors don’t want to pursue him, there’s simply no way for the case to go forward. An appellate court has never upheld the denial of a Rule 48 motion to which a defendant agrees, Mooppan insists.

Sullivan asks Mooppan what stops the judge from dismissing the case without prejudice—a decision that would allow Flynn to be prosecuted in the future if the Justice Department changed its mind. Mooppan replies that there’s no constitutional requirement to dismiss a Rule 48 with prejudice, but in this specific case it would be an abuse of discretion for Sullivan to dismiss without prejudice.

But Flynn has admitted to uncharged criminal conduct under the Foreign Agents Registration Act (FARA), Sullivan notes. As part of his plea agreement, the government agreed not to charge him further. Would it be appropriate for a future Attorney General to prosecute Flynn for this conduct, Sullivan asks? He warns listeners that this question is not an indication of how he feels, but rather a legal question he doesn’t know the answer to.

Mooppan responds that any dismissal by Judge Sullivan, with or without prejudice, only applies to Flynn’s charged conduct, meaning that the government could theoretically still prosecute Flynn under FARA.

Judge Sullivan next points out that he has already addressed the materiality of Flynn's false statements to the FBI. Why is the government revisiting this question now?

Once Flynn moved to withdraw his plea, responds Kohl, the question became whether the Justice Department could prove his guilt. Series of documents discovered by Jensen’s review showed that FBI agents, even at the time, thought Flynn’s interview was not plausibly related to Crossfire Hurricane. That’s why lawyers started talking about the relevance of the Logan Act to Flynn’s conduct.

Kohl adds that one member of the FBI leadership ruminated in his notes “what our goal” is in prosecuting Flynn—was it to get him fired?—and former FBI Director James Comey said in one meeting that Flynn’s call with Russian Ambassador Kislyak appeared legitimate. So what investigation were Flynn’s false statements material to? To Kohl, then, Flynn’s false statements didn’t impede an investigation and were thus immaterial. And materiality was on the table again because Flynn’s withdrawal of his plea meant that the government had to contemplate proving the case at trial.

Sullivan notes that the motion to dismiss Flynn’s case comes from a new team of attorneys appointed by a new attorney general. What inference should he draw from this fact? He asks too why the Justice Department didn’t file an earlier motion for reconsideration of his earlier rulings on materiality and Brady matters.

Kohl says the team rethought its handling of the case after the inspector general reports made its witnesses implausible. The more they looked at the case, the more the team became convinced that the case was done. Most recently, an FBI agent named Bill Barnett came forward and said he didn’t see a reason to interview Flynn.

Sullivan now mentions an “unsettling” recent filing by Strzok’s attorney: notes by Strzok with handwritten dates that appear to have been added by other people. He wants certifications from the Justice Department about the notes so he can be confident that documents represent what the government claims they represent.

Then, changing directions, Sullivan asks the government lawyers how much weight he should give to the dozens of presidential tweets calling Flynn’s prosecution a witch hunt. Communications between Barr and the president are privileged, Mooppan argues. But he is authorized to say that Barr’s decision in this case was not based on talks with Trump or on tweets.

Still concerned about slanted actions by government lawyers, Sullivan asks whether he should take into account the fact that “not one attorney from the special counsel’s office signed onto the motion to dismiss.” Mooppan says the absence of those names is totally irrelevant. Career lawyers in the U.S. attorney’s office have signed onto the motion, he notes. The position of any one government lawyer is not the issue, he contends. The government’s move to dismiss is the position of the executive branch itself.

The conversation now turns back to case law. Sullivan wonders why he should follow the language of Fokker Services and not Ammidown, a 1973 D.C. Circuit Case which suggested that trial judges can deny leave of court motions under somewhat broader rationales. Mooppan says that in Fokker Services, the D.C. Circuit ruled that the leave of court requirement doesn’t allow judges to dismiss motions based on disagreements with the prosecution. Even though the opinion was about deferred prosecution agreements—a different issue—Mooppan says that the opinion still discussed the limits and applications of Rule 48. Meanwhile, he says Ammidown is “the exact opposite,” because its mentions of the leave of court requirement were dicta.

Mooppan added that he disagrees with Judge Gleeson’s interpretation of Rule 48’s history. Yes, the drafters of the rule were worried about rogue individual prosecutors giving breaks to prominent people. Yet when the executive branch makes an authoritative decision to dismiss a case—when the Attorney General agrees with the prosecution team, for example—that has to be the end of the case.

Gleeson’s Turn

Gleeson has been quiet for a long time. Because he didn’t take issue with any aspect of Sullivan’s summary, he largely hasn’t spoken so far. But now it’s his turn. And he has a lot to say—as he quickly announces.

But first, Sullivan has some questions for him. On what authority can the court decline to grant a motion to dismiss with prejudice?

Gleeson says Sullivan has authority to do this, but calls it an “oddity.” When the government makes a motion under Rule 48A to dismiss a case, the default is always dismissal without prejudice. Here the government is erecting an entirely new set of rules for the case against Flynn. Its conduct is even more egregious, he argues, because Flynn made multiple false statements about his calls with Kislyak, so there remains a lot of material to be investigated.

Sullivan asks whether there should be an evidentiary hearing.

“You don’t need one,” Gleeson answers. Part of a judge’s job is to ask for the real reasons behind the prosecutors’ actions, as well the factual basis for the reasons. The stated reasons here are so painfully pretextual, Gleenson argues, that the government keeps needing to produce more of them. Sometimes factual hearings may be needed, but here the deceit leaps from the page.

Gleeson first attacks the notion that the court will have to grant Flynn’s motion to withdraw his guilty plea if he denies the government’s motion to dismiss. Of course a court wouldn’t accept a guilty plea from someone who says he’s innocent, he scoffs, referring to government counsel’s contention Sullivan wouldn’t be able to let Flynn’s guilty plea stand. But Flynn has pleaded guilty twice. You can’t plead guilty, show up for sentencing, as Flynn did, to “see how the wind was blowing,” and then withdraw a plea that was entered and accepted twice. Gleeson notes that Sullivan didn’t appoint him amicus to discuss Flynn’s motion to withdraw his plea, but that adds that it has no merit.

Sullivan asks him about the president’s tweets.

The government’s stated reasons for dismissing the case are hollow, Gleeson contends. The prosecutorial team doesn’t want us to know the real reasons. But the president’s tweets are evidence that Flynn has a friend in the highest possible place who wants the Justice Department to shut down the case and actively lobbies for it. After highlighting a few of Trump’s most egregious tweets, Gleeson says the only possible inference from the government’s exceedingly unusual motion is that it was in response to presidential pressure.

Gleeson now turns to the government’s arguments about the separation of powers. He says the text of Rule 48A gives the judge the authority to review the motion to dismiss the case. Though it’s true that the executive has “unreviewable power” on whether to bring criminal charges in the first instance, once it invokes the judicial power by bringing the case, the judiciary has some say. The separation of powers isn’t offended when a court finds that prosecutors failed to discharge their duties in good faith.

Gleeson says he embraces Fokker Services. He takes issue with the government’s characterization of the relationship between the two Rule 48A cases. It doesn’t make sense that Fokker Services, which cites Ammidown approvingly, in any way overruled Ammidown. He characterizes the former opinion as permitting the court to scrutinize and evaluate leave of court motions before granting them.

He then addresses the history of Rule 48A, which he says was unfairly denigrated by his adversary, and begins lecturing about the 1924 case which inspired the rule. In that case, the district judge didn’t accuse a rogue prosecutor of erring; rather, after a rich young Montana man was allowed to walk free for his crimes, the judge said that “few things are more pernicious than the disparate treatment of defendants who have friends in high places.” In the early 20th century, the law didn’t require the prosecutor to give reasons for dismissal. Gleeson details the drafting history of the rule to show that the Supreme Court expressly added the leave of court requirement, intending specifically for the prosecutor to provide a fact-based statement of its reasons for dismissal.

Sullivan asks Gleeson about judges’ discretion in Rule 48A cases. Gleeson responds that the judicial branch has an independent interest in not serving as "an instrument" for "unseemly" bad faith actions by the government.

Gleeson emphasizes that the government must explain its ostensible reasons for ending a prosecution. The executive’s right to end cases, he says, is a qualified one. If the government could just give opaque reasons without explanation for dismissing a case, that would remove the purpose of the leave of court requirement.

Gleeson now walks through the government’s stated reasons for dismissing the Flynn case. He starts with the materiality issues. The FBI interviewed Flynn because it was investigating possible ties between the Trump campaign and Russia. When the FBI asked about his calls with Kisylak, he lied. What could be more material to an investigation of coordination between the Trump campaign and Russia than lying about coordination between the Trump campaign and Russia?

Gleeson notes that according to the government itself, Flynn’s statements were material. The government said that, and Sullivan agreed, in December 2019.

He next attacks the idea that a supposed absence of proper predication for the investigation might be a problem. Predication just is not a prerequisite for conducting a voluntary interview. In this case, Gleeson says the government has manufactured a materiality standard just for Flynn.

Gleeson is on a roll. The argument that the government can’t prove Flynn’s guilt simply “can’t be taken seriously,” he says. Flynn has already pleaded guilty. He also attacks the notion that the government might have trouble proving the case. Flynn outright lied about his calls with Kislyak, said Gleeson, emphasizing how implausible it would be for Flynn to forget after a month asking personal favors of the Russian ambassador. This is an easy case, he argues.

Gleeson next brings up the supposed issue of agent bias. News flash: agents are sometimes biased.

If the government wants Sullivan to grant the motion, based in part on the political bias of agents, what about other cases in which there’s race-based or political bias? Will those cases be dismissed even when the defendant isn’t well-connected? He notes that the government’s normal position is to resist examinations of such matters, insisting that the evidence proves what it proves.

When the government moves to dismiss a case, Gleeson says, it’s entitled to substantial deference. But while the power to initiate a prosecution is absolute, once the prosecution is commenced, the power to dismiss is qualified. The judge is not only entitled but obligated to demand the prosecution’s reasons for dismissal. And though the judge must presume that the state reasons are for real, he doesn’t have to “act like you were born yesterday.”

There’s a simple solution if the president wants this case to go away, Gleeson concludes. He should use the pardon power, which is a legitimate action, instead of this damaging course of events in which the department creates rules for Flynn and implicates the judiciary in them.

Wrapping Up

We’re wrapping up now. Gleeson has been talking for a long time—and the judge is clearly tired.

But he still has questions for Powell, Flynn’s attorney: If her client wants to withdraw his guilty plea, then why did he twice plead guilty under oath?

Powell claims that Flynn’s old lawyers had grave conflicts of interest, as they had a hand in the FARA filings for which he had potential exposure. His old counsel were ineffective: they didn’t inform Flynn about his plea colloquy and only told him to say “no” if given the chance to withdraw his plea. And even given all this, his first plea was invalid because Judge Contreras should have recused because of his relationship with Strzok.

Powell proceeds to rant against partisan bias in the case. She asserts that the government didn’t give her the names of agents on the case for 16 months. She accuses Comey of “getting” Flynn, and through him Trump, by continuing a prosecution against Flynn after finding there was no wrongdoing. She claims that Sally Yates pushed the investigation. To dismiss Flynn’s case without prejudice, she tells the judge, means he will be subjected to further harassment.

Sullivan turns back to the government one more time to respond to Gleeson. Mooppan says the executive branch has exclusive authority and absolute discretion whether to prosecute a case. No ambiguity there. And he adds that Fokker Services’ reasoning about the judge having to approve leave of court motions is not dicta. In a case where the defendant agrees with the government, the judge has a “very narrow” role to play—just ensuring that the prosecutors’ reasons are the authoritative statement of the executive branch.

Kohl adds that it’s troubling that three Office of Inspector General investigations tended to discredit potential witnesses. Prosecutors should not pursue a case when they believe a defendant may well be guilty. They should do so only when they believe with confidence that the defendant is guilty.

Closing out the four-hour-long hearing, Gleeson reiterates his skepticism that the government will ever again be so mindful of bias by its agents. The rules concocted here, he argues, are only for the benefit of the president’s friend and former national security adviser.

Gleeson briefly touches upon the possibility that if Sullivan denies the government motion, the prosecutors might decide to stop pursuing Flynn. He concludes that this would be an enormous disrespect to the court.

Sullivan announces that he will take all of these arguments under advisement, and that mindful of the D.C. Circuit’s admonition to act quickly, he will rule soon.

Stay tuned.

Anna Salvatore is a rising freshman at Princeton University. She previously served as the editor in chief of High School SCOTUS, a legal blog written by teenagers. She is now a fall intern at Lawfare.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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