"The applicable precedents are clear and unambiguous: There is simply no basis upon which this Court can review and deny the Government’s motion to dismiss, to which the defense has consented."
THREAD on excellent @McAdooGordon amicus brief filed in @GenFlynn case
THREAD on excellent @McAdooGordon amicus brief filed in @GenFlynn case
Note this amicus brief is signed by ~30 "Federal Practitioners" - a bipartisan group of attorneys with extensive experience in the federal court system, including Prosecutors, government attorney's, FBI agents, state Attorneys General, law clerks, Judges & even Congressmen
"Where a court denies a consented motion to dismiss under Rule 48, it is overriding the Executive’s exercise of discretion and thereby is usurping the Executive’s authority"
"The separation of powers precludes a court from second-guessing the prosecutor’s exercise of discretion regardless of the considerations that prompt the executive branch’s decision"
"[the argument of other amici] thus runs headlong into the separation of powers. They are urging this court to do exactly what the Supreme Court has specifically said it cannot do"
"Amici who style themselves as “Former Watergate Prosecutors” incorrectly assert at least twice in their brief to the D.C. Circuit that an “order” of conviction has been entered...e.g “the court has issued an order accepting Flynn’s plea”...The docket is devoid of any such order"
"Some amici argue that [DOJs] Rule 48 motion comes “too late in the day” and that there is no precedent for dismissing after a guilty plea has been secured. [The Supreme Court decision in] Rinaldi constitutes ample precedent"
"Further, in United States v. Stevens, No. 08-231, this Court [Sullivan] granted the Government’s Rule 48 motion to set aside the jury’s [guilty] verdict and dismiss the case"
"The ultimate flaw in the analyses of amici is that they are result-driven. The Court must be guided by neutral principles of law"
"Here, the law is clear; unless the Government is abusing the defendant – which is certainly not the case here – the Court has merely a ministerial act to perform: it grants leave to dismiss"
"The Court is never a partisan for either the prosecution or the defense; it must never assume the mantle of prosecutor or defense counsel"
"There is no basis for the Court to order Gen. Flynn to show cause why he should not be held in contempt for perjury.
Withdrawing a plea, or attempting to do so, is not contemptuous conduct as a matter of law"
Withdrawing a plea, or attempting to do so, is not contemptuous conduct as a matter of law"
"The other arguments against dismissal advanced by amici are equally spurious. For example, it is contended that Gen. Flynn’s admissions of guilt establish his culpability and furnish a basis for the Court to require the case to proceed..."
"But Gen. Flynn had moved to withdraw his plea prior to the Government’s motion to dismiss, and the Government, in moving to dismiss, has explained in detail why it no longer believes that the evidence supports a criminal conviction in this case"
"All of the foregoing issues likely could have been avoided had the information about the FBI investigation that has now spurred the Government’s Rule 48 motion been disclosed to Gen. Flynn and his counsel before he originally entered his guilty plea."
"The information which the Government disclosed about the FBI’s conduct of the investigation was within its *exclusive* possession. There is simply no way that Gen Flynn could have known or uncovered these facts, which undermined an essential element of the charge against him..."
"...without the Government providing them to him. This is the paradigm of why the Constitution requires the Government to disclose such information to the defense"
"Viewed from a “big picture” perspective, the Government’s motion to dismiss was a product of the Court’s ongoing effort, through its Standing [Brady] Order, to promote justice by requiring the Government, at all stages of a criminal proceeding..."
."...to examine its case and disclose information that may affect a defendant’s guilt or punishment. As such, the Government’s motion is a successful, and just, outcome"
/ENDS
/ENDS
