Judge Gleeson Takes Liberties In His Citation to Appeals Court and SCOTUS Decisions

AP Photo/Manuel Balce Ceneta
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Michael Flynn, President Donald Trump’s former national security adviser, leaves the federal court with his lawyer Sidney Powell, left, following a status conference with Judge Emmet Sullivan, in Washington, Tuesday, Sept. 10, 2019. (AP Photo/Manuel Balce Ceneta)

This passage from Judge Gleeson at P. 31 caught my attention:

Faced with “clear evidence” that prosecutors have failed to perform their official duties in good faith, courts may pierce the presumption of regularity and deny leave of court under Rule 48(a) if doing so is necessary to vindicate fundamental judicial interests. See, e.g., Fokker, 818, F.3d at 741 (quoting United States v. Armstrong, 517 U.S. 456, 465 (1996)).”

He cites to the Fokker Services decision, specifically p. 741 of that decision, where the Fokker Services decision quotes the United States Supreme Court case in U.S. Armstrong, at p. 465.  That caught my attention because I have read and re-read Fokker Services probably 20 times, and I never had saw anything like that in my review and break-down of the case.  Also, I’m very familiar with Armstrong because it was decided in my 3rd year as a prosecutor, and the language from that Supreme Court decision was widely used in briefing various issues that were then regularly raised by defense attroneys in drug cases, which I did a lot of.

If you read p.741 of the Fokker Services case, you find two instances where the opinion refers to the Armstrong case.  The Fokker Services cases states:

The Executive’s primacy in criminal charging decisions is long settled. That authority stems from the Constitution’s delegation of “take Care” duties, U.S. Const. art. II, § 3, and the pardon power, id. § 2, to the Executive Branch. See United States v. Armstrong, 517 U.S. 456, 464,… 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.”…  The Supreme Court thus has repeatedly emphasized that “[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.” ….

Correspondingly, “judicial authority is … at its most limited” when reviewing the Executive’s exercise of discretion over charging determinations….  The Executive routinely undertakes those assessments and is well equipped to do so. By contrast, the Judiciary, as the Supreme Court has explained, generally is not “competent to undertake” that sort of inquiry…. Indeed, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” … “Judicial supervision in this area” would also “entail[ ] systemic costs.” … It could “chill law enforcement,” cause delay, and “impair the performance of a core executive constitutional function.” Armstrong, 517 U.S. at 465,…  As a result, “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.” Id. at 464



Assuming that the Gleeson brief meant to refer to p. 464, and not p. 465 of Armstrong, this “dense” bit of legal analysis still doesn’t stand up to scrutiny because Fokker Services does not say — as Gleeson claims — that “clear evidence” of improper motives by prosecutors allow a court to “pierce the presumption of regularity” and deny a Rule 48(a) motion to dismiss.

The quotation by Fokker Services of the language from the Armstrong deals with the “presumption of regularity”, not the scope of discretion under Rule 48(a) to deny leave of court.   What was at stake in Armstrong explains why the Armstrong standard for “piercing the presumption of regularity” cannot be transposed to a Rule 48(a) motion.  The “presumption of regularity” applies to the “respect” or “deference” that one branch owes to another branch on an issue that is committed to the other branch to decide.  Because charging decisions are committed to the executive branch, the judicial branch must apply a “presumption of regularity” to all such decisions.  In Armstrong the question was whether the defendant’s allegations were sufficient to overcome the “presumption” such that they could “look behind” the decisions to analyze the executive branch’s motivation in charging them — exactly what Judge Sullivan wants to do regarding the DOJ motion to dismiss.


The defendants in Armstrong claimed that they were singled out for prosecution for drug crimes on the basis that they were African-American — they were challenging the charging decisions of the Executive Branch on the basis that their constitutional rights were violated.  The Supreme Court held that while the discretionary authority of the Executive over charging decisions was almost absolute, that discretion was limited by “constitutional constraints.”  It wrote:

One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment… is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification,” … A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law….  In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.”

When Fokker Services referenced Armstrong’s “clear evidence” of prosecutorial wrongdoing, and “piercing” the “presumption of regularity”, the Court was reviewing the existing “landscape” of recognized permissible bases for judicial review of proseuctorial charging decisions.  Fokker Services never said — as Judge Gleeson claims — that the language from Armstrong applied to scope of discretionary review under Rule 48(a).  Armstrong had nothing to do with Rule 48(a), and Armstrong involved the one specific area where prosecutorial charging decisions are — without question — subject to judicial scrutiny.


The “clear evidence” of prosecutorial wrongdoing alleged in Armstrong — which was never established — had to do with allegations that the defendants’ constitutional right to Due Process under the Fifth Amendment had been violated by the executive’s charging decisions.

Nothing in Fokker Services or Armstrong supports the claim made by Judge Gleeson that “clear evidence” of something far less than constitutional violations in making charging decisions is a sufficient basis for the denial of a Rule 48(a) motion to dismiss.


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