Bozelko column: Drop the charges against Michael Flynn already
Columns share an author’s personal perspective.
The case of United States v. Army Lt. Gen. Michael Flynn slogs on.
In December 2017, Flynn pleaded guilty to charges of lying to FBI agents investigating his communications with a Russian ambassador. Several other motions and postponements prevented Flynn from being sentenced for over two years, and then the Department of Justice sought to drop all charges against him in early May.
On Aug. 11, a hearing before the DC Court of Appeals — this time sitting en banc, or with all the judges — caused legal experts to speculate that the Appeals Court is going to let Judge Emmet Sullivan decide the motion to dismiss the charges, which means that almost four months dedicated to this most infamous drop are just a prelude.
The discussion of the case has been so complicated — even the judge had to hire a lawyer in this mess — and so political that the most fundamental issues in the Flynn fiasco have been obscured. There are two of them. One is whether a judge can stop a prosecutor from dropping charges against a defendant, and the other is whether the actions of pleading guilty and then claiming innocence constitute perjury.
The lawyers involved would likely counter that my explanation is oversimplified, but I don’t think it is. Even if my take on the case doesn’t trace every legal argument attorneys have presented, it’s still valid — and, quite frankly, the reasons why Flynn should be free from this today.
All the Department of Justice is trying to do is drop a case it initiated. Defending a client against a criminal case is a huge task. Bringing one against an accused requires less effort, but there’s still work involved. I doubt it’s ever been this hard for the government to unhand a defendant.
I’ve looked and I can find only two instances of judges refusing to dismiss charges when the government sought to cease its own plans. One is from Norfolk, Virginia, where the city court sought last year to dismiss marijuana possession cases. The other occurred in Boston, where a judge tried to prevent Suffolk County District Attorney Rachael Rollins from entering a “nolle prosequi” in charges of civil disobedience against protesters at a “Straight Pride” parade.
There may be more, but I can say this isn’t common.
Generally, if prosecutors don’t want none, there won’t be none. In fact, that’s one of the problems with modern criminal cases; power is so overconcentrated on the government side that it’s rarely a fair fight. The entire movement to elect and install “progressive prosecutors” exists so that they do exactly what the Department of Justice is doing to Flynn: decline to try to convict someone. It’s almost guaranteed that judges grant these motions. In fact, as one journalist covering the marijuana case in Norfolk reported: “Prosecutors’ motions to dismiss or drop charges are typically formalities. They don’t generally like giving up on cases, so when they make what amounts to an admission of defeat, judges almost always grant them.”
Sullivan’s resisting this habit of the courts. If the current charges against Flynn did go away, Judge Sullivan wanted Flynn charged with perjury because he pleaded guilty and then claimed innocence.
If Flynn committed perjury, then so did I when I entered a guilty plea under the Alford Doctrine to avoid the so-called trial penalty — facing more prison time when someone elects to exercise their rights to a trial. Defendants regularly enter guilty pleas and profess innocence; it’s been approved by the Supreme Court of the United States for the last 50 years, since the court decided the case of Alford v. North Carolina in 1970. If it’s perjury, it’s news to them.
I’m shocked that the briefing on Judge Sullivan’s plans never included a mention of the Alford Doctrine. Flynn’s plea wasn’t a so-called “Alford Plea,” but he’s among the 90% to 95% of defendants who raise a white flag when they’re up against the government. Pleading guilty out of one side of your mouth while disavowing responsibility out of the other is as common in criminal courtrooms as practicing law.
Attorneys for Judge Sullivan allege some hinky stuff happening in Attorney General William Barr’s office, or undue influence over or by President Trump with Flynn. I’m willing to concede it’s possible that misconduct motivates much of this and Judge Sullivan’s tenacity in seeing Flynn prosecuted is an attempt to protect the process from corruption.
But that doesn’t change that he doesn’t really have the power to do that. Again, that’s the problem with our outmoded system: Prosecutors have the discretion to dismiss charges or decline to prosecute — as well as pursue cases that should never be brought. The fact that Flynn had already entered a guilty plea doesn’t make him a liar necessarily. It makes him pragmatic according to Supreme Court precedent.
I’m not staking any of this on Flynn’s innocence. I don’t have an opinion on whether he’s guilty or not. I simply know the law and the practical realities of being prosecuted. The DC Court of Appeals needs to stop the case of United States v. Michael Flynn … yesterday.
Chandra Bozelko writes the award-winning blog Prison Diaries. You can follow her on Twitter at @ChandraBozelko and email her at firstname.lastname@example.org.