Flynn: The Dismissal and What Might Happen

Mark Rubin

Today, the Justice Department announced its intent to dismiss its case against Michael Flynn. Recall that the United States of America charged Mr. Flynn with a violation of 18 U.S.C. § 1001 (False Statements). Mr. Flynn’s sin: lying to the FBI about contacts with Russian governmental officials before January 20, 2017.

Mr. Flynn pled guilty, cooperated with the government for a while for the purpose of lessening his sentence and, on January 14, 2020, filed a motion to withdraw his guilty plea. Now, the government says never mind and more – the Justice Department has trashed the FBI and President Trump accuses the Obama Administration of treason, even though it was his own Justice Department which has been prosecuting Mr. Flynn since November 30, 2017.

The Justice Department, as it happens, cannot unilaterally dismiss a criminal case. Rule 48, Federal Rules of Criminal Procedure, states:

The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.

[Housekeeping: First, the Flynn case started with a criminal information, and it is not important what that is. Second, the second sentence does not apply here, and it exists to protect against double jeopardy.]

Case law says, generally, that the court must grant the government’s motion, absent a really good reason. One case refers to a standard of “manifestly against the public interest” as a standard. Good faith is also mentioned, but it is clear that in most instances where the government seeks leave to dismiss, procedural advantage might be the motivating factor.

In U.S. v. Hastings, 447 F. Supp. 534 (E.D. Ark. 1977), the court noted the fact that Rule 48 provides no measurable standard for granting or not granting a dismissal. Every case differs and good faith matters greatly.

I can find no case like Flynn, in connection with the government seeking a dismissal. None!

The motion, of course, will not have any opposition. That, alone, though, does not mean District Judge Emmet Sullivan dismisses the case. He’s been more than a little ornery in this matter, and the Flynn side’s actions have pleased him not at all. (Best one I saw, sort of? Apparently, Mr. Flynn sought leave to file an Epiphany. Because Judge Sullivan denied the motion, the docket make the document unavailable. That said, in almost 39 years as a lawyer, I have never seen a motion associated with an epiphany.)

I want to be clear about a couple of things. First, innocent until proven guilty applies here, although the guilty plea makes that whole issue irrelevant. Second, this person, this Michael Flynn fellow, deserves nothing but contempt from us. He violated laws knowingly, he had been cozying up to Vladimir Putin and his ilk for years, and he disgraced the uniform he wore.

This thing stinks to high heaven! Really reeks! But the Supreme Court adopts rules of procedure for good reasons. Admittedly, Rule 48 does not exist for a situation like this one – remember, Michael Flynn  pled guilty already – but its plain language applies. (Not to be ignored here is this question: if Judge Sullivan denies the government’s motion, what happens next? Who continues the case?)

I welcome thoughts from readers who know criminal better than I do. Be well and stay safe, everybody.

Mark