507 F.Supp.3d 116
D.D.C.2020Background
- Michael T. Flynn, former National Security Advisor, was charged with making materially false statements to the FBI about his December 2016 calls with the Russian ambassador and pled guilty (twice) to 18 U.S.C. § 1001(a)(2).
- The FBI opened an investigation into Flynn (Crossfire Razor) as part of the broader Crossfire Hurricane counterintelligence inquiry; the FBI interviewed Flynn at the White House on Jan. 24, 2017.
- In May 2020 the Department of Justice moved to dismiss the information under Fed. R. Crim. P. 48(a), asserting doubts about proving materiality and falsity; Flynn consented and sought immediate dismissal.
- The court appointed amicus curiae (John Gleeson) to oppose the Rule 48(a) motion and investigate possible prosecutorial impropriety; the D.C. Circuit addressed mandamus petitions and ultimately denied relief en banc.
- President Trump issued a full, unconditional pardon to Flynn on November 25, 2020; Flynn accepted and the government filed a consent motion to dismiss the case as moot.
- The district court concluded it had discretion to review unopposed Rule 48(a) motions and found the government's new justifications suspect, but because Flynn accepted the presidential pardon the court dismissed the case as moot and denied the Rule 48(a) motion as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Court's authority to review an unopposed Rule 48(a) motion | The court's role is narrow—principally to protect a defendant from prosecutorial harassment; deference to Executive branch charging decisions | Flynn: consented to dismissal; urged immediate grant of the motion | Court held it has discretion to review unopposed Rule 48(a) motions (judicial "leave" is not purely ministerial) |
| Standard for denying leave under Rule 48(a) | Court should defer to Executive and require only that dismissal reflect considered view of the Executive | Amicus/Gleeson: court may deny if reasons are insubstantial or prosecution abused its discretion | Court adopted the Ammidown standard: may deny if reasons are not substantial or if prosecutor abused discretion |
| Adequacy/regularity of DOJ's reasons (materiality and falsity) | DOJ: evidence problems—statements not material under a narrowed view; falsity and proof issues; impeachment and record inconsistencies | Amicus and amici: DOJ's new positions are pretextual, contradict prior litigation positions and the record; presidential involvement raises appearance of improper motive | Court found government explanations dubious and potentially pretextual, but did not finally resolve Rule 48(a) denial on the merits because of mootness |
| Effect of presidential pardon on proceedings | DOJ and Flynn: pardon renders prosecution moot; consent to dismissal | Flynn accepted pardon and moved to dismiss as moot | Court held the pardon (accepted by Flynn) rendered the case moot and granted the consent motion to dismiss; Rule 48(a) motion denied as moot |
Key Cases Cited
- Rinaldi v. United States, 434 U.S. 22 (1977) (recognizes "leave of court" in Rule 48(a) vests judicial discretion to protect public interest)
- United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) (court may review unopposed dismissals to prevent abuse and protect public interest)
- United States v. Cowan, 524 F.2d 504 (5th Cir. 1975) (Rule 48(a) history supports judicial oversight to check prosecutorial power)
- United States v. Moore, 612 F.3d 698 (D.C. Cir. 2010) (materiality under § 1001: statement has natural tendency or is capable of influencing agency function)
- United States v. Verrusio, 762 F.3d 1 (D.C. Cir. 2014) (materiality requires that a falsehood be capable of affecting the agency's general function)
- Brogan v. United States, 522 U.S. 398 (1998) (a witness’s belief about falsity is irrelevant to § 1001 liability)
- Burdick v. United States, 236 U.S. 79 (1915) (a presidential pardon generally must be accepted to be effective)
- Ex parte Garland, 71 U.S. 333 (1866) (pardon power is broad and not subject to legislative control)
- United States v. Klein, 80 U.S. 128 (1871) (pardon power is "granted without limit")
- In re Flynn, 973 F.3d 74 (D.C. Cir. 2020) (en banc denial of mandamus; court declined to compel immediate grant of DOJ's Rule 48(a) motion)