As I know a legal brief can be hard for folks to get through, even a short one at 23 pages, I thought I put together this thread to explain the central points that we're making in the amicus brief. To file this kind of brief, you ask the judge for leave to do so with a motion./1
Before you get that motion granted, you draft the brief and it's an attachment to the motion. You have to explain in the motion why you want to file the motion and basically what you're bringing to the discussion. Our motion is here: drive.google.com/file/d/1C9uXGX… /2
You also have to explain who the amici is. Amici is latin for friend basically. It's an old legal form for people/organizations that aren't parties to a case to help the judge decide a question/bring a perspective from those who might be affected by the case but aren't in it. /3
Amici can be anyone or any group, but the idea is that have to have an "interest" of some kind in the case that makes what they have to say helpful to the court. Our amici list is here: drive.google.com/file/d/1WKlrN0… /4
In our case, the amici group is composed of current & former lawyers, clerks & judges who are connected to federal court. In general the interest of the group was to address legal arguments to assist Judge Sullivan in understanding the law as we see it for Flynn's case. /5
Because of our interest in representing clients in federal court, we have a perspective on the roles of the government and the courts in federal cases, whether clients can be held in contempt for alleged perjury, and whether discovery in criminal cases satisfies due process. /6
Broadly, those are the 3 topics in our brief: (1) the separation of powers (the different roles of prosecutors & judges in a case), (2) contempt for perjury, & (3) disclosing exculpatory info to defendants during plea negotiations. Our brief is here: drive.google.com/file/d/1Esf341…
The first issue (separation of powers) in this case concerns when it stops being proper for a prosecutor to dismiss a case. Everyone agrees that can't be done after appeal (unless the court of appeals sends the base back). So, the basic question is where is the cutoff line. /8
Some of the other amici groups argue that the cut-off line is at the guilty plea and some say after that -when the govt has filed its sentencing memo. They think the case is final "enough" at that point that prosecutors shouldn't be able to dismiss if the judge doesn't agree. /9
Our lawyers think it is clear that the cut-off line is when the judge actually enters the order of conviction. In every case that happens after the person pleads or is found guilty & the judge fixes the sentence, including fines, restitution, etc., when the whole case is done./10
That makes sense because sometimes things change between the guilty plea & the sentencing. Sometimes new evidence comes to light even after a jury trial. Sometimes the judge disagrees with a jury verdict & changes it. You have a right to seek to withdraw a plea. /11
Under the normal law, a case is not a final conviction that you can appeal from or that can be used against you in other cases until the court enters the order into the court record. Also, for example, if a person dies between the plea & sentencing, the case is dismissed. /12
Our lawyers think that until the case is actually final, the prosecutor is the one who gets to say that the case will keep going until the judgment order, or instead can chose to stop prosecuting the case. This isn't just a question of procedure, tho but of constitutional law./13
Our constitution divides the government into 3 branches, which are responsible for 3 different powers of government (hence the name - separation of powers). These are: I. legislative - the Congress; II. executive - the President & subordinates; & III. judicial - the courts. /14
To put it simply, the Framers separated the powers into t3 branches so that no 1 branch would have too much power. They operate as checks & balances against each other. The real intent of this is that it makes it difficult for any 1 branch of the govt to become too powerful. /15
The real point of the separation of powers is that it keeps the citizenry from being overpowered by any one branch of government. In a real sense, the separation of powers is a tool to keep us free. That is why it is important in every case, no matter the context. /16
In criminal cases, the executive - the prosecutor - has the exclusive power to charge crimes. The judiciary has the exclusive power to try crimes in court. Most of the time, these powers don't conflict in criminal cases. However, once in a while they do. This is such a case./17
The power to charge crimes carries w/it the powers to continue or stop the case also. This is especially true because the prosecutor is the 1 who has to put on the evidence to prove the case. The court can end a case, but only for legal reasons, not just because it wants to./18
Prosecutors decide all the time not to bring cases or stop them in mid-case & they do so for many reasons. Sometimes it's for law or evidence reasons, but sometimes it's because something makes it unjust to continue or because resources would be better used elsewhere. /19
The court has no role in that process. It's job is not to decide whether to bring, continue or stop cases. It's job is to use its procedures & law to make decisions in the cases that are brought & decide guilt or innocence as appropriate. It also pronounces sentences./20
In federal court, the two roles of the prosecutor & the judge bump up against 1 another in really only one procedural rule - Rule 48. That Rule says the govt can dismiss a case after it's been brought. It does not say at what point that power stops. /21
Even tho the Rule says it authorizes the prosecutor to dismiss cases, the rule isn't really the thing that gives the prosecutor power to do so. It is the Constitution that gives the prosecutor the power. It would be the same if there was no rule at all. /22
In terms of when the power stops, there is a Supreme Court case, Young, that says the prosecutor cannot use the power to stop a case after the defendant has appealed. At that point the judicial branch is doing its job of reviewing the trial for error. /23
That makes sense because once the person has been tried, gotten sentenced, had the judgment entered against him & has appealed, the case is only being checked by the courts of appeals to see if the lower courts did their job correctly; the prosecutor's job is done. /24
Up to the point the case is brought, the decision whether to prosecute is clearly executive. At the end, once judgment has been entered & the case has been appealed, the appeal is clearly judicial. The question in Flynn's case is who has the power in the time in between? /25
Rule 48 says the govt can dismiss the case, with leave of court, after it's been charged. The "leave of court" language did not originally exist in the Rule. It was added in the 40s. Before that the prosecutor had the unlimited executive power as provided in the constitution. /26
Notice that the rule does not say what "leave of court" means, & it doesn't explain why the court would have this new power. There was discussion in the Rules Committee about adding it & 2 theories were offered for adding this new language. /27
When the Supreme Court added the language it did not say why. The Committee is not the Court & comments by the Court to the Committee are not rulings by the Court. Later, in a case called Rinaldi, the Supreme Court says the language was added "without explanation."/28
The Rinaldi Court said the primary reason for the leave of court language is to protect defendants from situations where the govt repeatedly drops & recharges a crime. In that case the court can make the prosecutor drop the charge "with prejudice" so it can't be brought again./29
This makes sense even though it could be seen as a small intrusion on the executive power because the judiciary is supposed to use the judicial power to protect individual rights. Almost all constitutional rights & powers have to accommodate one another when they conflict. /30
In resolving such conflicts, an individual right will usually be deemed the constitutional winner. Here, the judicial intrusion on the executive power is small - 1 case among many gets dismissed, but the executive intrusion on the individual's right to due process is large. /31
In that situation, of course, the defendant is objecting to the dismissal w/o prejudice. In the Flynn type situation, the defendant is agreeing (consenting) to the dismissal. Obviously, in many situations a defendant is perfectly happy to have a case dismissed. /32
But a second scenario (& 1 that had been discussed by the Rules Committee) was what if the defendant is getting the dismissal because of some kind of favoritism w/the prosecutor, rather than a "real" reason. (Of course he agrees!) Some Committee members thought that was bad. /33
It may be bad in a moral or ethical sense, but the question is whether it's constitutional. Not everything that is bad is illegal. Not everything that is legal is good. Not everything that is unconstitutional is bad. Not everything that is constitutional is a good idea. /34
But we have collectively decided that the way the Constitution is put together is what keeps us the most free. So, even if at times an individual result may be undesirable, that still isn't important enough to damage the framework of the Constitution, which is about liberty. /35
One "exception" now or a tiny "bending" of the constitutional rule may seem like a good idea at the time but we may seriously come to regret it later. So, when engaging in legal analysis, the highest priority is placed on constitutional rules. Everything else comes after that./36
Fortunately for the Supreme Court in Rinaldi it didn't have to decide in 1977 if the 2nd scenario was constitutional. It left for another day the question of the judge's role if the defendant consented to the dismissal but the judge thought the public interest might be harmed./37
After 1977, the Supreme Court didn't have to decide a Rule 48 case on separation of powers. In 1973, however, the Court of Appeals had already decided a case called Ammidown, which said a court could review the Govt motion for whether dismissal was in the public interest./38
Since 1977, the Supreme Court has decided a number of separation of powers cases in other scenarios and it has developed this law in a consistent way. In 1985, the Court decided 2 cases together- Heckler and Wayte. 1 is civil; 1 is criminal, but they both decide the same idea./39
Heckler says: "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." Notice - absolute discretion. /40
Wayte is equally clear. It says: "the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Govt's enforcement priorities, & the case's relationship to the Govt's . . . /41
overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake." In other words, whether to bring/continue/stop cases is an expression of many factors for which the executive -not the judiciary- is responsible to the people. /42
These cases are not about Rule 48 & they don't mention Rinaldi or expressly say they overule Rinaldi or Ammidown, BUT THEY DO. This is because their holdings about the separation of powers apply no matter how the executive power to charge, continue or drop a case comes up. /43
When the understanding of the law is clarified, particularly on constitutional issues, the force & application of the clarification applies to any case/circumstance to which the clarification logically applies. A lawyer who can't apply cases this way is not worth listening to./44
The DC Circuit understood this principle & when a case called Fokker came up in 2016 where it needed to interpret a statute, the Court applied Wayte & it used Rule 48 as an analogy to reach its decision. It said the separation of powers precluded the court's review. /45
Again, tho Fokker does not directly say that is overrules Ammidown, it is obvious that the logic of it does so. It says: "Decisions to initiate charges, or to dismiss charges once brought, lie[] at the core of the Executive's duty to see to the faithful execution of the laws."/46
Fokker also says: "the court's w/holding of approval [in Rule 48] would amount to a substantial & unwarranted intrusion on the Executive Branch's fundamental prerogatives." And, the "Judiciary[] lack[s] competence to review the prosecution's initiation & dismissal of charges."/47
Some case opinions are hard to interpret. Fokker isn't. "So understood, the 'leave of court' authority gives no power to a district court to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority."/48
So, if Fokker is so easy to read&understand&apply then why are all these lawyers writing briefs arguing about it, I hear you asking. The most basic reason is that there are people who don't want the govt or Judge Sullivan to dismiss Flynn's case, so they're throwing up chaff./49
1st, they say Ammidown still controls & allows review of the Govt's motion. Wrong. 2nd, they say Rinaldi still controls & allows review of the Govt's motion. Wrong. 3rd, they say that because DOJ's argument on materiality is so unusual, the court should review it. /50
It simply doesn't matter what the other amici or other people think about the DOJ's materiality analysis.The Supreme Court in a case called ICC rejected the idea that "if [an] agency gives a 'reviewable' reason for otherwise unreviewable action, the action becomes reviewable."/51
This means even if a prosecutor says, "We think we are weak on proving intent in this case, so we're dismissing," the judge doesn't get to say, "I make findings about intent all the time. I could review that." A "reviewable" reason doesn't make it constitutionally reviewable. /52
Since none of those reasons work for keeping Flynn's case alive - even tho he & the Govt want to dismiss it - because the pesky Supreme Court has said the executive branch has the power to run itself & do its job, the other amici needed a different argument. /53
The new argument is that somehow the executive branch's power to dismiss a case doesn't last all the way to the end of the actual case but stops somewhere short of the end - either, depending on which brief you're reading, at the plea, or at the plea plus the sentencing memo. /54
This argument is based on no actual case that holds this amazing assertion. And it contradicts all the ordinary rules I explained before that a conviction occurs at the end of the case when the judge enters the judgment order after the sentencing. /55
To support their astonishing new theory, the amici argue that the plea really completes the prosecution, ignoring that a defendant has a right to seek withdrawal & that Flynn has a motion to withdraw his plea pending. /56
In sort of a desperate attempt at an argument, one of the amici even argue that the Govt motion in Flynn's case is just too late in the day & that the Govt cited no case where a Rule 48 motion was filed so late in a case. They ignore that the Rinaldi case dealt was an appeal. /57
Even more unbelievable, they ignore that Judge Sullivan himself handled a famous case a few years ago in which U.S. Senator Ted Stevens was convicted by a jury & the DOJ filed a Rule 48 motion after that because govt misconduct in his case was discovered. /58
The other amici are also confusing two different concepts: (1) acknowledging error & (2) exercising discretion. They cite to the Young case which says the prosecutor can't say on appeal there was error in the case in order to end the case because that's a job for the courts./59
That's true, but admitting error isn't exercising discretion. It's a legal conclusion. Exercising discretion can be based on many factors. The fact that the prosecutor can't do the judge's job on appeal doesn't mean the prosecutor can't do his own job in the trial. /60
In our amicus brief, we explain these issues more fully with cases & analysis. The arguments of the other amici don't hold up under scrutiny. And the reason for that is that the arguments are results-driven. They are trying to fit the outcome already decided on. /61
A judge can't do things that way, so we make the point that a federal judge's role is actually often to protect defendants, including under Rule 48. We quote Federalist 78 where Alexander Hamilton said the essential role of the courts is to guard "the rights of individuals." /62
On the issues of separation of powers & the Govt's motion to dismiss under Rule 48, we conclude that the court has no basis for reviewing the motion & no discretion to deny the motion & must instead give leave to dismiss Gen. Flynn's case. /63
The 2nd and 3rd issues we cover in our brief are much more succinct. The first has to do with whether a trial judge can legally find someone in contempt for alleged perjury. /64
Perjury, as I hope everyone know, is basically a lie under oath in court. It is, of course, a criminal offense. Many don't realize that contempt is also a separate criminal offense. The kind we're talking about here is misbehavior for obstructing the administration of court./65
A federal judge can hold a hearing on a charge of contempt & ask the Govt to prosecute it or appoint a lawyer to prosecute it. The contempt statute is found at 18 U.S.C. 401. It's - I think - the only charge in the federal code charged by a judge instead of a prosecutor. /66
But contempt requires the element of misbehavior, so the Supreme Court said in a case in 1919 called Ex parte Hudgings that to be contemptuous, perjured testimony must also disrupt the judicial proceeding somehow. It has to have "obstructive effect." /67
This of course is a safeguard so that simply because a judge believes a witness was untruthful (whether that is correct or not) & even if the testimony is false, not every "lie" in federal court also becomes a case for contempt (for which the court can give jail.) /68
The D.C. Circuit has a follow-up case also that is called In re Brown, where a guy pretended to be a lawyer thru a whole court proceeding😳but was later found out. The Court said that was seriously fraudulent conduct but since he hadn't obstructed the court it wasn't contempt./69
So under the well established law, there simply is no basis for a show cause order or hearing in this case for contempt for perjury (or anything else). The transcripts of the various proceedings don't show any obstructive conduct by Gen. Flynn. /70
Finally, our brief discussed an aspect of the disclosure of exculpatory evidence (Brady evidence) in this case. As many people know, Judge Sullivan has been a leader in pushing the Govt to make more discovery disclosure to the defense and do so earlier in the case. /71
In this case, he issued his Standing Order on discovery requiring the Govt to disclose discovery to the defense as part of plea negotiations & after the plea. The docket entries of the case show that the Govt made almost no disclosures before the plea (before he had the case.)/72
After the case was assigned to Judge Sullivan, however, there were a series of disclosures throughout the case, culminating in the most recent series of disclosures from USA Jensen's review, which lead to the motion to dismiss. /73
Thus, our brief applauds Judge Sullivan's forward thinking on Brady disclosures as helping to achieve a just result in Gen. Flynn's case. This was important because the kind of evidence disclose here is not the kind that a defense investigation can uncover. /74
Thus, due process really does depend in these circumstances on the courts holding the Govt accountable to its responsibilities to the citizenry under the Constitution. /75
