The Cases Judge Sullivan Will Likely Rely On — They Won’t Save Him in the End.

I’ve received a lot of positive feedback in my first couple weeks of writing here on the stories where I’ve tried to translate legal principles into everyday language.  It’s something I’ve done for nearly 30 years, and when you talk about the law for a living, you learn through trial and error how to use language that your audience understands, and not all discussions are directed at federal judges or other lawyers.

I had started writing this story in anticipation of seeing some amicus briefs begin to be filed, and previewing the arguments that were likely to be made.  From my perspective, the arguments will be ultimately unavailing because the case law they will rely upon does not lead to the outcome they seek.

But the Order from the DC Circuit Court of Appeals entered yesterday directing Judge Sullivan to personally respond to the Petition for Mandamus on the specific issue of the application of Rule 48(a) in light of the Circuit Court’s 2016 decision in U.S. v. Fokker Services means that Judge Sullivan himself will likely turn to the two cases I had in mind to analyze, and we will see sooner rather than later the arguments that will be made by Judge Sullivan in trying to keep his options open with respect to ruling on the Rule 48(a) motion to dismiss filed by the Department of Justice.

I’m going to do two stories over the next two days that discuss the prior court decisions that are likely to be heavily relied upon by Judge Sullivan to argue that he is compelled to conduct the searching inquiry he proposes to do into the decision-making that led to the DOJ motion to dismiss.

The first case is titled United States v. Cowan.  My next story will be about United States v. Ammidown.   These two cases are likely going to be a central feature of Judge Sullivan’s response, because both cases are mentioned by the Supreme Court in Footnote 15 of Rinaldi v. United States, the Supreme Court decision in 1977 where the Court last took up the issue of a dismissal motion under Rule 48(a).  Both cases involved lower court decisions where the judges undertook to determine whether similar motions made by the government in each case were improper, and whether the nature of the impropriety was such that the motions should be denied in the interests of justice.  Judge Sullivan will likely copy the arguments that have been made online by pundits advocating on his behalf that the Supreme Court made reference to both cases, acknowledged what the trial court judges did in each case, and did not express disapproval.

I’m not going to go back through Rinaldi, but if you want to know a bit more about that case, I wrote about it in my story “Recent Decision of the Court of Appeals for DC Circuit Show Sullivan Must Dismiss Flynn Case.” But in Footnote 15, the Court in Rinaldi wrote as follows:

But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest. See United States v. Cowan, 524 F.2d 504 (CA5 1975); United States v. Ammidown, 162 U.S.App.D.C. 28, 33, 497 F.2d 615, 620 (1973).

The first thing to understand about these citations is that the Cowan case was in the Fifth Circuit Court of Appeals, and originated in a district court in Texas.  The Ammidown decision, however, is from the same DC Court of Appeals that the Flynn case would go to.  A district judge like Judge Sullivan can consider the Cowan case to be “persuasive” authority if he agrees with its rationale, but he is not bound to do so, whereas Judge Sullivan must follow rulings from the DC Circuit Court such as the decision in Ammidown because such a case is “binding precedent” on lower courts in the DC Circuit such as Judge Sullivan’s court.

Cowan is an historically interesting case because of the facts, as it grows out of the Watergate scandal.  There were two defendants in the Cowan case, and unfortunately for ease or reference, the defendant who is relevant for our purposes here was not Cowan — it was the second defendant named Jacobson.  I’m going to refer to him simply as “the defendant”, and by that reference I am referring to Jacobsen.

The defendant was indicted on multiple felony charges in the Northern District of Texas involving allegations that he and others defrauded a federally insured Savings & Loan.  After that indictment was filed, but unknown to the Court in Texas, the defendant began cooperating with the Watergate Special Prosecution Force in Washington D.C.  As part of his cooperation with the Watergate prosecutors, an agreement was reached whereby the defendant would plead guilty to one count of bribery of a public official in Washington, he would not be prosecuted in Washington for any other crimes he may have committed, and the charges in the Texas indictment would be dismissed.  This arrangement was unknown to the district judge in Texas until shortly before the scheduled trial date when the U.S. Attorney in Texas filed a motion to dismiss the indictment under Rule 48(a).

As you might have guessed, the district judge in Texas wasn’t too keen on the agreement and he denied the motion to dismiss under Rule 48(a).  Upon denial of the motion to dismiss, the United States Attorney filed its notice of intention not to prosecute, and the district judge responded by asserting its inherent power to protect the public interest in extraordinary circumstances, and appointed private special prosecutors.

On appeal, the Fifth Circuit identified the dispute over the scope of the district court’s authority under Rule 48(a) as a question not previously addressed by any federal appeals court:

[N]o federal appellate court has come face to face with the asserted power of the district court under 48(a) to grant or withhold leave to dismiss a criminal prosecution once begun. The question is squarely presented here for the first time as a controversy between the Executive and Judicial Branches of government involving opposing asserted powers under the Rule.

The Court next noted there was little case authority to guide its decision:

In situations like these history has its claims, and we think it is appropriate to review it. Before the adoption of 48(a), more than thirty states had, by statute or judicial decision, modified the common law to give courts a responsible role in the dismissal of a pending criminal proceeding by requiring an “order” or “leave” or “consent” of court. The state case law interpreting this change is sparse, but what there is of it consistently affirms the power and duty of the court to exercise discretion to grant or withhold leave to dismiss pending criminal prosecutions in “the public interest.”

Take note there that the Court states this is a “case of first impression”, meaning there are no prior cases in any federal appeals court dealing with the issue of the scope of a district court’s ability to deny a motion made by the government under Rule 48(a).  When it looked to decisions from state courts on similar statutory language, it conceded the case law there is “sparse,” but what case law there is consistently supports the view that “the public interest” must be served by the decision to grant or deny a motion to dismiss.  So the Cowan court was largely writing on a “blank canvas”.

Next the Court looked to the communications between the Advisory Committee that drafted the original Federal Rules of Procedure, and the Supreme Court which had to approve them before they were sent to Congress.  At one point the Supreme Court noted for the Advisory Committee that Rule 48(a) should be revised in a manner that took into account its decision in Young v. United States, wherein the Court had stated even when the government confessed error in an appeal of a criminal matter, it was still for the Court to determine the impact of that error on the proceeding.  Ultimately it was the Supreme Court that inserted the phrase “with leave of court” into Rule 48(a), but it did so without an explicit explanation of what the phrase meant.  But the court in Cowan stated as follows:

It seems manifest that the Supreme Court intended to make a significant change in the common law rule by vesting in the courts the power and the duty to exercise a discretion for the protection of the public interest.

That is the language that the anti-Flynn advocates will seize upon to argue that Judge Sullivan must carefully examine — and after he does, reject — the rationale set forth by the Department of Justice in the motion to dismiss.  But such an argument ignores the remainder of the Cowan decision.  Ultimately the Fifth Circuit determined that the district court committed reversible error in not granting the government’s motion to dismiss.  But the explanation for why the district court was wrong is instructive here.

The Supreme Court’s deliberate insertion of the phrase “by leave of court,” the phrase itself denoting judicial choice, must be taken in the context of the Court’s contemporaneous Young decision…. Viewed in this light, we think it manifestly clear that the Supreme Court intended to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice. It is against this background that we consider the overpowering effect of the Doctrine of Separation of Powers.

This the portion of the Cowan decision that actually undercuts what the anti-Flynn advocates argue.  While the Fifth Circuit did confirm that the district court judge had discretion in ruling on a Rule 48(a) motion by the government, the Court made it clear that disagreement with the reasons set forth by the government in its motion was not enough of a basis upon which to deny the motion “in the public interest” because of “separation of powers” concerns.

The rule was not promulgated to shift absolute power from the Executive to the Judicial Branch. Rather, it was intended as a power to check power. The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest.

It next turned to the reasons expressed by the district court for denying the government’s motion to dismiss, and found them wanting because the stated reasons only revealed a disagreement on the part of the trial court judge with the justifications for the dismissal offered by the government.

We think this appraisal of the whole matter misapprehends the relative roles of the Executive and the Judiciary under 48(a). The considerations which prompted Judge Hill to overrule the motion to dismiss are, in our judgment, legally insufficient to overcome the presumption of the government’s good faith and establish its betrayal of the public interest.

We cannot agree with Judge Hill’s view that this motion lacked specificity of evidentiary proof. The representations in the motion and the supporting memorandum were not merely conclusory; they specified the investigation being pursued in the District of Columbia and the necessity of obtaining Jacobsen’s cooperation under the plea agreement calling for dismissal of the Texas charges. We are convinced that this is legally sufficient to justify leave of court to dismiss the Texas charges against Jacobsen in consideration of his guilty plea in the District of Columbia.

The upshot of the Court’s ruling is that in order to justify denying a motion to dismiss under Rule 48(a), the district court must do something other than simply express disagreement with the reasons set forth in the motion.  The representations made by the government, if supported by references to facts and evidence in the case, carry a presumption of legitimacy given separation of powers considerations, and that presumption must be respected.

In sum, it was within the province of the two prosecutorial arms of the government to weigh the relative importance of two separate prosecutions in two separate districts and dispose of them as practical considerations seemed to dictate. Nothing in this record overcomes the presumption that they did so in good faith for substantial reasons sufficiently articulated in the motion to dismiss.

When faced with a properly grounded motion to dismiss under Rule 48(a), where an adequate basis in fact or law is set forth by the government for the motion, the words “with leave of court” in the Rule do not stand for the proposition that the district court is empowered to launch a wide-ranging inquiry into the propriety or accuracy of what has been represented.

The DOJ motion to dismiss the prosecution of Gen. Flynn is supported by multiple exhibits, and within the motion it is conceded by the Department that Gen. Flynn’s rights to certain evidence were not complied with, and that the factual basis underpinning his admission of guilt was likely faulty.  It’s not the role of Judge Sullivan to take over the position of DOJ and come to his own conclusions about whether those representations are right or wrong.  His role is to consider the representations, determine if they are adequate for the purpose for which they are presented — to justify dismissal of the case — and act accordingly.