United States v. Flynn ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
MICHAEL T. FLYNN, Crim. Action No. 17-232 (EGS)
Defendant.
MEMORANDUM OPINION
Pending before the Court are: (1) the government’s motion
to dismiss the criminal information against Mr. Flynn with
prejudice pursuant to Federal Rule of Criminal Procedure 48(a),
see Gov’t’s Mot. Dismiss Criminal Information Against Def.
Michael T. Flynn (“Gov’t’s Mot. Dismiss”), ECF No. 198; and (2)
the government’s notice of executive grant of clemency and
consent motion to dismiss this case as moot, see Notice
Executive Grant Clemency Consent Mot. Dismiss Moot (“Consent
Mot. Dismiss”), ECF No. 308. Upon careful consideration of the
motions, the applicable law, the entire record herein, and for
the reasons explained below, the Court DENIES AS MOOT the
government’s motion to dismiss pursuant to Rule 48(a), and
GRANTS the government’s consent motion based on the presidential
pardon and DISMISSES this case AS MOOT.
I. Background
Mr. Flynn served as a surrogate and national security
advisor for then-candidate Donald J. Trump during the 2016
presidential campaign. Statement of Offense (“SOF”), ECF No. 4
at 1 ¶ 1. 1 After the November 2016 election, Mr. Flynn became a
senior member of the President-Elect’s Transition Team. Id. Mr.
Flynn served as the National Security Advisor to President Trump
from January 22, 2017 until he resigned on February 13, 2017.
Ex. 1 to Def.’s Reply Mot. Compel, ECF No. 133-1 at 1-2.
A. The FBI Investigation Into Mr. Flynn’s Activities
The criminal conduct underlying the offense, as set forth
in the Information, was admitted to by Mr. Flynn when he entered
his guilty pleas in this case. See, e.g., Information, ECF No. 1
at 1-2; Plea Hr’g Tr. (Dec. 1, 2017), ECF No. 16 at 18-19;
Sentencing Hr’g Tr. (Dec. 18, 2018), ECF No. 103 at 9-10. The
Information, which was filed on November 30, 2017, charged Mr.
Flynn with one count of willfully and knowingly making
materially false statements to the Federal Bureau of
Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a)(2),
during his interview with two FBI agents on January 24, 2017 in
the White House. See Information, ECF No. 1 at 1-2; see also
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
Sentencing Hr’g Tr., ECF No. 103 at 32. Under oath and with the
advice of counsel, Mr. Flynn pled guilty to the crime on
December 1, 2017. Plea Hr’g Tr., ECF No. 16 at 30-31; see also
Plea Agreement, ECF No. 3 at 10.
According to the record evidence in this case, on July 31,
2016, the FBI opened an investigation, code-named “Crossfire
Hurricane,” into the Russian Federation’s (“Russia”) efforts to
interfere in the 2016 election, which included determining the
existence of any links between Russia and individuals associated
with the Trump campaign. SOF, ECF No. 4 at 1 ¶ 1. 2 Among other
things, the Crossfire Hurricane investigation set out to
determine who, if anyone, from the campaign may have “been in a
2 On May 17, 2017, then-Acting Attorney General Rod J. Rosenstein
appointed Robert S. Mueller, III to serve as Special Counsel for
the United States Department of Justice and authorized the
Special Counsel to investigate the Russian government’s efforts
to interfere in the 2016 election, including any matters arising
from that investigation. Special Counsel Robert S. Mueller, III,
U.S. Dep’t of Justice, Report On The Investigation Into Russian
Interference In The 2016 Presidential Election, Vol. I of II
(“Mueller Report”) (Mar. 2019), ECF No. 79-1 at 19. The Special
Counsel was duly authorized to prosecute federal crimes arising
from the investigation. Id. The Special Counsel concluded that
Russia interfered in the 2016 presidential election in two
principal ways: (1) carrying out a social media campaign
favoring then-candidate Trump and disparaging then-candidate
Hillary Rodham Clinton; and (2) “conduct[ing] computer-intrusion
operations against entities, employees, and volunteers working
on the Clinton Campaign and then releas[ing] stolen documents.”
Id. at 9. The Special Counsel’s “investigation also identified
numerous links between the Russian government and the Trump
Campaign.” Id.3
position to have received the alleged offer of assistance from
Russia.” Ex. 1 to Amicus Br., ECF No. 225-1 at 13.
Against this backdrop, and “as part of the larger Crossfire
Hurricane umbrella,” the FBI launched an investigation into Mr.
Flynn on August 16, 2016, in order to determine whether he was
“being directed and controlled by and/or coordinating activities
with the Russian Federation in a manner which may be a threat to
the national security and/or possibly a violation of the Foreign
Agents Registration Act, [18 U.S.C. § 951 et seq.], or other
related statutes.” See Ex. 2 to Gov’t’s Mot. Dismiss, ECF No.
198-3 at 2-3. The communication describing the opening of the
investigation into Mr. Flynn, code-named “Crossfire Razor,”
noted that: (1) Mr. Flynn was “an adviser to the Trump team on
foreign policy issues”; (2) he had “ties to various state-
affiliated entities of the Russian Federation”; (3) he had
“traveled to Russia in December 2014”; and (4) he had “an active
TS/SCI clearance.” Id. At some point prior to January 4, 2017,
though, the FBI drafted a “Closing Communication” to close the
case, noting that certain investigative steps had yielded “no
derogatory information” on Mr. Flynn and that the “FBI is
closing this investigation.” See Ex. 1 to Gov’t’s Mot. Dismiss,
ECF No. 198-2 at 2, 5. The document also stated: “If new
information is identified or reported to the FBI regarding the
activities of CROSSFIRE RAZOR, the FBI will consider reopening
4
the investigation if warranted.” Id. at 5. Despite the written
communication, the case was not closed at that time. See Gov’t’s
Mot. Dismiss, ECF No. 198 at 4.
On December 21, 2016, Egypt introduced a resolution to the
United Nations (“U.N.”) Security Council regarding Israeli
settlements, and the vote on the resolution was scheduled for
December 22, 2016. SOF, ECF No. 4 at 4 ¶ 4. On December 29,
2016, then-President Barack H. Obama imposed sanctions on Russia
for its interference in the 2016 presidential election. See id.at 2 ¶ 3(a). Before the President-Elect was sworn into office
and prior to the closing of Crossfire Razor, Mr. Flynn engaged
in conversations with the then-Russian Ambassador between
December 22, 2016 and December 31, 2016. Id. at 2-5 ¶¶ 3-4.
Based on these communications, the FBI continued its
investigation into Mr. Flynn and did not close the investigation
of him. See Gov’t’s Mot. Dismiss, ECF No. 198 at 4-7.
As the investigation continued, Mr. Flynn made a series of
materially false statements to FBI investigators during an
interview at the White House on January 24, 2017 about his
conversations with the Russian Ambassador. SOF, ECF No. 4 at 1-2
¶ 2 (stating that “[Mr.] FLYNN’s false statements and omissions
impeded and otherwise had a material impact on the FBI’s ongoing
investigation into the existence of any links or coordination
between individuals associated with the [Trump] Campaign and
5
Russia’s efforts to interfere with the 2016 presidential
election”); see id. at 2-5 ¶¶ 3-4; see also Information, ECF No.
1 at 1-2. Mr. Flynn admitted to lying to the FBI about his
request on or about December 29, 2016 to the Russian Ambassador
that Russia refrain from escalating the situation in response to
the sanctions imposed by the United States against Russia, and
about the Russian Ambassador telling Mr. Flynn that Russia
decided to moderate its response to the sanctions. SOF, ECF No.
4 at 2-3 ¶ 3. In addition, Mr. Flynn admitted to making false
statements to the FBI about his request on or about December 22,
2016 to the Russian Ambassador that Russia vote against or delay
Egypt’s resolution to the U.N. Security Council, that the
Russian Ambassador never described to Mr. Flynn Russia’s
response to his request, that Mr. Flynn did not request certain
countries to take a particular position on the resolution, and
that Mr. Flynn only asked the countries for their respective
positions on the vote. Id. at 4-5 ¶ 4.
Separately, Mr. Flynn also admitted to making false
statements in the documents that he submitted to the United
States Department of Justice on March 7, 2017 under the Foreign
Agents Registration Act, 22 U.S.C. §§ 611–621 (“FARA”). Id. at 5
¶ 5; see also Addendum to Gov’t’s Mem. in Aid of Sentencing, ECF
No. 75 at 3 (stating that “[Mr. Flynn] stipulated and agreed
that he violated FARA by making materially false statements” in
6
the FARA filings). Those FARA filings concerned a project that
Mr. Flynn and his company, Flynn Intel Group, Inc. (“FIG”),
performed on behalf of the Republic of Turkey. SOF, ECF No. 4 at
5 ¶ 5. Mr. Flynn, however, was not charged with any FARA
violations. See Information, ECF No. 1 at 1; see also Status
Hr’g Tr. (Sept. 10, 2019), ECF No. 114 at 20. For purposes of
sentencing, Mr. Flynn did not dispute the relevance of the FARA
references in the government’s description of the nature and
circumstances of his offense. See Gov’t’s Mem. in Aid of
Sentencing, ECF No. 46 at 3-5; see also Def.’s Mem. in Aid of
Sentencing, ECF No. 50 at 12. Indeed, the government confirmed
that Mr. Flynn could have been charged with making false
statements in the FARA filings. Sentencing Hr’g Tr., ECF No. 103
at 28. Under the terms of the Plea Agreement, the government
agreed not to further prosecute Mr. Flynn for the criminal
conduct described in the SOF. Plea Agreement, ECF No. 3 at 2 ¶
3. In the final analysis, the government did not charge Mr.
Flynn with violating the Logan Act, 18 U.S.C. § 953, or with
being a foreign agent. See Information, ECF No. 1 at 1.
B. Mr. Flynn’s Guilty Pleas And Subsequent Motion To
Withdraw His Guilty Plea
On November 30, 2017, Mr. Flynn entered into a plea
agreement with the government upon the advice of counsel. See
Plea Agreement, ECF No. 3 at 10. Judge Rudolph Contreras
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accepted Mr. Flynn’s guilty plea on December 1, 2017, finding
that Mr. Flynn entered the plea knowingly, voluntarily, and
intelligently with the advice of counsel. Plea Hr’g Tr., ECF No.
16 at 4, 30-31.
On December 7, 2017, this case was randomly reassigned to
this Court. See generally Docket for Crim. Action No. 17-232. On
December 18, 2018, this Court accepted Mr. Flynn’s guilty plea a
second time. Sentencing Hr’g Tr., ECF No. 103 at 5, 16. During
that hearing, the Court extended the plea colloquy in view of
Mr. Flynn’s statements in his sentencing memorandum, which
raised questions as to whether Mr. Flynn sought to challenge the
conditions of the FBI interview. See generally Def.’s Mem. in
Aid of Sentencing, ECF No. 50 at 6-18. Under oath, Mr. Flynn
confirmed that his rights were not violated as a result of the
circumstances of his January 24, 2017 FBI interview and the
allegations of misconduct against FBI officials. Id. at 11-12.
And Mr. Flynn declined the Court’s invitation for the
appointment of independent counsel to advise him. Id. at 9-10.
Noting that the Court’s usual practice is to impose a
sentence only after the completion of a defendant’s cooperation,
the Court granted Mr. Flynn’s request to continue the sentencing
hearing to allow him to further cooperate with the government
after considering defense counsel’s representations that Mr.
Flynn was prepared to continue his cooperation in the criminal
8
case in the Eastern District of Virginia. Id. at 47-48. The
trial in that case was scheduled to begin in July 2019. See
Joint Status Report, ECF No. 71 at 1; see also Status Hr’g Tr.
(June 24, 2019), ECF No. 94 at 5-6. In June 2019, Mr. Flynn
retained new counsel. See Min. Order (June 14, 2019). Mr. Flynn
did not testify at the trial in the Eastern District of
Virginia. See, e.g., Min. Order (July 9, 2019); Gov’t’s Resp. to
Order of the Court, ECF No. 97 at 1-2; Def.’s Resp. to Order of
the Court, ECF No. 98 at 1-11; Def.’s Suppl. Status Report, ECF
No. 121 at 1.
Thereafter, in August 2019 and October 2019, respectively,
Mr. Flynn filed motions to compel the production of certain
materials pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and
the Court’s Standing Brady Order. See generally Def.’s Br. in
Supp. of Def.’s Mot. to Compel Produc. of Brady Material & Mot.
for Order to Show Cause, ECF No. 109; Def.’s Redacted Mot. to
Compel & Mot. for Order to Show Cause, ECF No. 111; Def.’s
Sealed Mot. to Compel Produc. of Brady Material, ECF No. 112;
Def.’s Suppl., ECF No. 116; Def.’s Mot. to Compel Newly
Discovered Brady Evid., ECF No. 124. In these motions, Mr. Flynn
asserted his innocence for the first time in this case, alleged
prosecutorial misconduct, and sought dismissal. In December
2019, the Court issued a Memorandum Opinion and separate Order
denying Mr. Flynn’s Brady motions, finding that Mr. Flynn failed
9
to establish a single Brady violation, and holding that Mr.
Flynn’s false statements to the FBI were material within the
meaning of 18 U.S.C. § 1001(a) for the purpose of resolving
those motions. See Order, ECF No. 143; Mem. Op., ECF No. 144 at
53, 92.
As the Court and the parties prepared to proceed with
sentencing, in January 2020, Mr. Flynn moved to withdraw his
guilty plea. See Mot. Withdraw Guilty Plea, ECF No. 151; Suppl.
Mot. Withdraw Guilty Plea, ECF No. 160-2. On January 29, 2020,
Mr. Flynn filed a motion to dismiss for alleged egregious
government misconduct and in the interest of justice. See Mot.
Dismiss Case Egregious Gov’t Misconduct, ECF No. 162. In
February 2020, the government opposed Mr. Flynn’s motion to
dismiss, stating that Mr. Flynn “relies on allegations that do
not pertain to his case, that the Court already rejected, and
that have no relevance to his false statements to the FBI on
January 24, 2017.” Gov’t’s Response Def.’s Mot. Dismiss, ECF No.
169 at 11. The government did not file a response to Mr. Flynn’s
motions to withdraw his guilty pleas due to its incomplete
review of Mr. Flynn’s former counsel’s productions relevant to
Mr. Flynn’s claims of ineffective assistance of counsel, as well
as a dispute between Mr. Flynn and his former counsel. See Mot.
Continue Briefing, ECF No. 165; see also Min. Order (Feb. 10,
2020).
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C. The Government’s Motion To Dismiss
On May 7, 2020, the government filed a motion to dismiss
the criminal information against Mr. Flynn with prejudice
pursuant to Federal Rule of Criminal Procedure 48(a). See
Gov’t’s Mot. Dismiss, ECF No. 198 at 12. For the first time in
this case, the government claimed that: (1) Mr. Flynn’s false
statements to the FBI agents were not “material” to any
investigation; (2) the government is doubtful that it could
prove the falsity of Mr. Flynn’s statements; and (3) the
government has no “substantial federal interest in penalizing a
defendant for a crime that it is not satisfied occurred and that
it does not believe it can prove beyond a reasonable doubt.” Id.
at 1-2.
On the same day, and with the consent of the government,
Mr. Flynn filed a motion to withdraw all of his pending motions
without prejudice. See id. at 10 n.3; Michael Flynn’s Mot.
Withdraw Pending Mots., ECF No. 199. Mr. Flynn also filed a
notice of consent to the government’s Rule 48(a) motion on May
12, 2020, demanding the immediate dismissal of this case with
prejudice. See Michael Flynn’s Consent Gov’t’s Mot. Dismiss, ECF
No. 202. On May 13, 2020, the Court appointed John Gleeson (“Mr.
Gleeson”) as amicus curiae to present arguments in opposition to
the government’s Rule 48(a) motion and to address whether Mr.
Flynn should be held in criminal contempt for perjury pursuant
11
to 18 U.S.C. § 401; Federal Rule of Criminal Procedure 42; the
Court’s inherent authority; and any other applicable statutes,
rules, or controlling law. 3 See Order Appointing Amicus Curiae,
ECF No. 205. 4 On May 19, 2020, the Court set a briefing schedule
and scheduled oral argument for July 16, 2020, adding that the
order was subject to a motion for reconsideration, for good
cause shown. See Min. Order (May 19, 2020). 5 Thereafter, Mr.
Gleeson filed his brief on June 10, 2020. See Amicus Br., ECF
No. 225. Mr. Flynn filed his response and two supplemental
responses, and the government filed its response. See Gov’t’s
Reply, ECF No. 227; Mem. Opp’n, ECF No. 228; Suppl., ECF No.
231; Suppl., ECF No. 237. Mr. Gleeson filed his reply brief on
September 11, 2020. See Amicus Reply Br., ECF No. 243.
3 The Court is persuaded by the arguments presented that issuing
an Order to Show Cause would amount to an atypical action and so
does not address this issue in this Memorandum Opinion.
4 The Court appreciates the thorough, careful, and thoughtful
analysis provided by Court-appointed amicus curiae.
5 Pursuant to this schedule, the following amici submitted
briefs: Separation of Powers Scholars; National Association of
Criminal Defense Lawyers; Former Federal Prosecutors and High-
Ranking Department of Justice Officials; Opening Arguments
Media, LLC; We Who Serve-VSO; Kamil Ekim Alptekin; Steady State
and Former National Security Officials; Federal Practitioners;
Chairman and Members of the Committee on the Judiciary, U.S.
House of Representatives; Lawyers Defending American Democracy;
Watergate Prosecutors; Citizens United, Citizens United
Foundation, and Presidential Coalition, LLC; the States of Ohio,
Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana,
Mississippi, Missouri, Oklahoma, South Carolina, Texas, Utah,
and West Virginia; and Criminal Law Professors. The Court
appreciates the perspectives expressed by amici.
12
D. Mr. Flynn’s Mandamus Petition
On the same day that the Court set the briefing schedule on
the government’s motion, Mr. Flynn filed an emergency petition
for a writ of mandamus in the United States Court of Appeals for
the District of Columbia Circuit (“D.C. Circuit”), seeking an
order to: (1) direct the Court to grant the government’s
unopposed Rule 48(a) motion; (2) vacate the Court’s Order
appointing amicus curiae; and (3) reassign the case to a
different district judge for any further proceedings. See Pet.
Writ Mandamus, In re Flynn, No. 20-5143 (D.C. Cir. May 19,
2020). Two days later, the D.C. Circuit ordered this Court to
file a response and invited the government, in its discretion,
to file a response. See Per Curiam Order, In re Flynn, No. 20-
5143 (D.C. Cir. May 21, 2020). The government and this Court
filed their responses on June 1, 2020. See Judge Sullivan
Response, In re Flynn, No. 20-5143 (D.C. Cir. June 1, 2020);
Gov’t’s Response, In re Flynn, No. 20-5143 (D.C. Cir. June 1,
2020).
On June 24, 2020, a divided panel of the D.C. Circuit
granted in part Mr. Flynn’s petition and directed the Court to
grant the government’s unopposed Rule 48(a) motion. In re Flynn,
961 F.3d 1215, 1223, 1227 (D.C. Cir. 2020). The panel majority
declined to reassign the case to a new judge, id. at 1223; and
vacated as moot the Order appointing Mr. Gleeson as amicus
13
curiae, id. at 1227. The Clerk of Court docketed the June 24,
2020 Order in this case. See USCA Order, ECF No. 233.
On July 9, 2020, this Court filed a petition for rehearing
en banc, see Pet. Reh’g En Banc, In re Flynn, No. 20-5143 (D.C.
Cir. June 9, 2020); to which both Mr. Flynn and the government
filed a response, Flynn Response, In re Flynn, No. 20-5143 (D.C.
Cir. June 20, 2020); Gov’t’s Response, In re Flynn, No. 20-5143
(D.C. Cir. June 20, 2020).
On July 30, 2020, the D.C. Circuit ordered the case to be
heard en banc based on a suggestion of a member of the court,
and vacated its June 24, 2020 order. See Per Curiam Order, In re
Flynn, No. 20-5143 (D.C. Cir. July 30, 2020); see also In re
Flynn, 973 F.3d 74, 77 n.1 (D.C. Cir. 2020). Following oral
argument, on August 31, 2020, the D.C. Circuit denied Mr.
Flynn’s petition for a writ of mandamus. The D.C. Circuit, per
curiam, denied Mr. Flynn’s requests to compel the immediate
grant of the government’s motion and to vacate the Court’s
appointment of amicus because Petitioner had not established
that he has “no other adequate means to attain the relief he
desires.” In re Flynn, 973 F.3d at 79. The D.C. Circuit also
declined to mandate that the case be reassigned to a different
district judge because Mr. Flynn had not established a clear and
indisputable right to reassignment. Id. at 78, 82. The D.C.
Circuit further held that the case is not moot. Id. at 78 n.2.
14
E. Resumption Of Hearing On The Government’s Motion To
Dismiss
Following the D.C. Circuit’s denial of Mr. Flynn’s mandamus
petition and pursuant to this Court’s September 1, 2020 Minute
Order, the parties filed a joint status report proposing
deadlines for further briefing on the government’s Rule 48(a)
motion, as well as proposed dates for a hearing on the motion.
See Joint Status Report, ECF No. 238. The parties also agreed
that the Court need not wait until the D.C. Circuit’s Order
denying mandamus relief became effective on September 21, 2020 —
21 days after its issuance, pursuant to Circuit Rule 41(a)(3) —
to proceed with briefing. Id. at 2.
In accordance with the parties’ proposed hearing date and
briefing schedule, which the Court granted, see Min. Order
(Sept. 4, 2020), Mr. Gleeson filed his reply brief on September
11, 2020, see Amicus Reply Br., ECF No. 243. The government
filed a supplement, see Gov’t’s Suppl., ECF No. 249; and Mr.
Flynn filed three supplements, see Suppl., ECF No. 248; Suppl.,
ECF No. 251; Suppl., ECF No. 257. The Court heard oral argument
on the government’s Rule 48(a) motion on September 29, 2020.
Following the motion hearing, Mr. Flynn filed a supplement in
support of the government’s Rule 48(a) motion, see Suppl., ECF
No. 264; and Mr. Gleeson filed a supplement to his briefing, see
Amicus Suppl., ECF No. 265. Mr. Flynn also filed a motion for
15
recusal and other relief. See Mot. for Recusal, ECF No. 261. In
that motion Mr. Flynn requested, among other things, that the
Court grant the government’s motion to dismiss pursuant to Rule
48(a) and that, upon dismissal of the case, the Court recuse
itself from further proceedings. After the Court dismisses the
case as moot pursuant to the presidential pardon, the Court will
deny the motion for recusal as moot.
D. The President Pardons Mr. Flynn
On November 25, 2020, President Trump granted Mr. Flynn a
“full and unconditional pardon” for: (1) “the charge of making
false statements to Federal investigators,” in violation of 18
U.S.C. § 1001, as charged in the Information in this case; (2)
“any and all possible offenses arising from the facts set forth
in the Information and Statement of Offense” filed in this case
“or that might arise, or be charged, claimed, or asserted, in
connection with the proceedings” in this case; (3) “any and all
possible offenses within the investigatory authority or
jurisdiction of the Special Counsel appointed on May 17, 2017,
including the initial Appointment Order No. 3915-2017 and
subsequent memoranda regarding the Special Counsel’s
investigatory authority”; and (4) “any and all possible offenses
arising out of facts and circumstances known to, identified by,
or in any manner related to the investigation of the Special
Counsel, including, but not limited to, any grand jury
16
proceedings” in this District or in the United States District
Court for the Eastern District of Virginia. Ex. 1 to Consent
Mot. Dismiss, ECF No. 308-1 at 1; see also Donald Trump
(@realDonaldTrump), Twitter (Nov. 25, 2020, 4:08 PM),
https://twitter.com/realDonaldTrump/status/1331706255212228608. 6
Mr. Flynn accepted the pardon, and Mr. Flynn and the
government subsequently moved to dismiss this case as moot. See
Consent Mot. Dismiss, ECF No. 308 at 2.
II. Legal Standards And Analyses
A. Federal Rule Of Criminal Procedure Rule 48(a)
1. The Court Has Discretion To Review The Unopposed
Rule 48(a) Motion
Rule 48(a) provides that the “government may, with leave of
court, dismiss an indictment, information, or complaint.” Fed.
R. Crim. P. 48(a). Based on its terms, the “leave of court”
requirement “obviously vest[s] some discretion in the court.”
Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977). As the
D.C. Circuit has recognized, the “requirement of judicial leave
. . . gives the court a role in dismissals following
indictment.” United States v. Ammidown, 497 F.2d 615, 620-21
6 The Court takes judicial notice of President Trump’s tweet as
the veracity of this statement “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b)(2); see Hawaii v. Trump, 859
F.3d 741, 773 n.14 (9th Cir. 2017), vacated on other grounds,
138 S. Ct. 377 (2017).
17
(D.C. Cir. 1973). The government, however, casts doubt on the
authority of courts to review a Rule 48(a) motion to dismiss
when the defendant in the case does not oppose the motion. The
government argues that the rule “ordinarily allows a court to
review a motion to dismiss only to protect the interests of the
defendant.” Gov’t’s Reply, ECF No. 227 at 17. Yet the text and
history of Rule 48(a), as well as precedent in this and other
circuits, demonstrate that courts have the authority to review
unopposed Rule 48(a) motions as well.
“[T]he history of the Rule belies the notion that its only
scope and purpose is the protection of the defendant.” United
States v. Cowan, 524 F.2d 504, 512 (5th Cir. 1975). Before Rule
48(a)’s passage in 1944, “federal prosecutors wielded the power
to drop criminal charges,” or enter a nolle prosequi, “at will.”
See Thomas Ward Frampton, Why Do Rule 48(a) Dismissals Require
“Leave of Court”?, 73 Stan. L. Rev. Online 28, 30 (2020).
However, the perception that prosecutors were seeking dismissals
for politically well-connected defendants led some judges to
“feel complicit in dealings they deemed corrupt.” Id.; see,
e.g., United States v. Woody, 2 F.2d 262, 262-63 (D. Mont. 1924)
(finding that the prosecution had moved to dismiss the case for
reasons that “savor[ed] altogether too much of some variety of
prestige and influence (family, friends, or money) that too
often enables their possessors to violate the laws with
18
impunity; whereas persons lacking them must suffer all the
penalties,” but “reluctantly” dismissing the case because leave
of court was not required).
In 1941, the Supreme Court appointed an Advisory Committee
to create rules of criminal procedure, and the Committee took
into consideration such concerns. Frampton, Why Do Rule 48(a)
Dismissals Require “Leave of Court”?, supra, at 31-32. As
originally proposed by the Advisory Committee, Rule 48(a)
allowed a prosecutor to dismiss without leave of court but
required that the prosecutor state reasons for seeking
dismissal. Id. at 34. The Supreme Court, in response to the
draft rule, pointed out that the proposed “rule apparently gives
the Attorney General or the United States Attorney unqualified
authority to nolle pros a case without consent of the court,”
inquiring “[i]s this now the law, and in any event should it be
the law, any more than that the Government can confess error in
a criminal case without the consent of the court?” Id. at 34-35;
see also Cowan, 524 F.2d at 510. The Supreme Court, in its note,
directed the Committee’s attention to Young v. United States,
315 U.S. 257 (1942), which held that the fact that a prosecutor
confesses error in a case “does not relieve th[e] Court of the
performance of the judicial function.” 315 U.S. at 258. In the
opinion, the Supreme Court explained that “[t]he public interest
that a result be reached which promotes a well-ordered society
19
is foremost in every criminal proceeding. The interest is
entrusted to our consideration and protection as well as that of
the enforcing officers.” Id. at 259.
Despite the Supreme Court’s concerns, the Advisory
Committee’s final draft of Rule 48(a) again required only that
prosecutors submit a statement of reasons for dismissal. See
Frampton, Why Do Rule 48(a) Dismissals Require “Leave of
Court”?, supra, at 36-37. However, in promulgating the rule, the
Supreme Court deleted this requirement and added the requirement
that the prosecutor obtain leave of court. Id. at 37; see also
Ammidown, 497 F.2d at 620. In so doing, the Court made it
“manifestly clear that [it] intended to clothe the federal
courts with a discretion broad enough to protect the public
interest in the fair administration of criminal justice.” Cowan,
524 F.2d at 512.
This Circuit’s precedent is consistent with this history.
For example, in Ammidown, the D.C. Circuit acknowledged that
Rule 48(a) “gives the court a role” when “the defendant concurs
in the dismissal but the court is concerned whether the action
sufficiently protects the public.” 497 F.2d at 620. The D.C.
Circuit explained that courts carry out this role in such a
situation “to prevent abuse of the uncontrolled power of
dismissal previously enjoyed by prosecutors.” Id. (citation
omitted). Despite this language in Ammidown, however, the
20
government relies on United States v. Fokker Services B.V., 818
F.3d 733 (D.C. Cir. 2016), to argue that judicial intervention
is warranted only when the defendant objects to dismissal
because “the ‘principal object of the leave of court
requirement’ has been understood to be a narrow one—‘to protect
a defendant against prosecutorial harassment.’” Gov’t’s Reply,
ECF No. 227 at 20-21 (quoting Fokker, 818 F.3d at 742).
But Fokker does not address the Court’s authority to
consider an unopposed Rule 48(a) motion; it involved a deferred
prosecution agreement rather than a guilty plea. Fokker, 818
F.3d at 737. Fokker also does not suggest that courts may only
review opposed Rule 48(a) motions for prosecutorial harassment—
the case simply quotes language from Rinaldi, stating that
preventing harassment is the principal object of the rule. Id.
at 742 (quoting Rinaldi, 434 U.S. at 29 n.15).
Furthermore, the Court’s authority to consider the
unopposed Rule 48(a) motion here is not contrary to the Supreme
Court’s decision in Rinaldi. In Rinaldi, the Court reviewed an
agreement between the defendant and government to dismiss an
indictment based on the government’s violation of a federal
policy precluding multiple prosecutions for the same act. 434
U.S. at 24-25. The Supreme Court, in a footnote, stated:
The words “leave of court” were inserted in
Rule 48(a) without explanation. While they
obviously vest some discretion in the court,
21
the circumstances in which that discretion may
properly be exercised have not been delineated
by this Court. The principal object of the
“leave of court” requirement is apparently to
protect a defendant against prosecutorial
harassment, e. g., charging, dismissing, and
recharging, when the Government moves to
dismiss an indictment over the defendant’s
objection. . . . 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). It is unnecessary to decide whether
the court has discretion under these
circumstances, since, even assuming it does,
the result in this case remains the same.
Id. at 29 n.15. Significantly, the Rinaldi court thus left this
question open, while also recognizing that courts, including the
D.C. Circuit, have reviewed unopposed Rule 48(a) motions. Id.;
see also Ammidown, 497 F.2d at 620 (noting that the “primary
concern, at least as discerned by subsequent decisions of other
federal courts, was that of protecting a defendant from
harassment,” but nonetheless finding that the court has a role
in reviewing unopposed Rule 48(a) motions).
At the September 29, 2020 motion hearing, the government
emphasized a different aspect of its argument. It conceded that
the Court should not act as a rubber stamp and that it has a
role to play when presented with an unopposed Rule 48(a) motion.
Hr’g Tr., ECF No. 266 at 40:9-12. But, in the government’s view,
22
this role is limited to determining whether “the decision to
dismiss is the considered view, the authoritative view of the
Executive Branch as a whole,” id.; rather than being the “rogue”
decision of an individual prosecutor, id. at 99:16-23. 7 The
government argued that this standard appropriately reconciles
the concerns about favoritism and pretext that led to the “leave
of court” language in the Rule with the separation of powers
principal that “the Executive Branch has exclusive authority and
absolute discretion to decide whether to prosecute a case.”
United States v. Nixon, 418 U.S. 683, 693 (1974) (citation
omitted); see also Fokker, 818 F.3d at 742 (“[D]ecisions to
dismiss pending charges . . . lie squarely within the ken of
prosecutorial discretion.”). The Court is not persuaded by the
government’s argument, however, because it fails to acknowledge
the possibility that the “considered view of the Executive
Branch as a whole” could be contrary to the public interest.
7 At oral argument during the en banc mandamus proceedings, the
government took the remarkable position that even if,
hypothetically, it was undisputed that the Attorney General of
the United States accepted a bribe in exchange for dismissing a
case, a district court would have no authority under Rule 48(a)
to deny the government’s motion once the court ascertained that
the government stood by its decision to dismiss the case. Oral
Argument at 1:53, In re Flynn, No. 20-5143 (D.C. Cir. Aug. 11,
2020),
https://www.cadc.uscourts.gov/recordings/recordings.nsf/DocsByRD
ate?OpenView&count=100&SKey=202008.
23
Accordingly, the Court is persuaded that it has discretion
to consider the unopposed Rule 48(a) motion before it.
2. The Court May Review Rule 48(a) Motions For
Deficient Reasoning Or Prosecutorial Abuse
While courts have a role in considering Rule 48(a) motions,
they are limited to narrow circumstances in which they may
exercise their discretion in denying leave to dismiss. See
Fokker, 818 F.3d at 742. After all, “decisions to dismiss
pending criminal charges . . . lie squarely within the ken of
prosecutorial discretion” and “at the core of the Executive’s
duty to see to the faithful execution of the laws.” Id. at 741-
42 (citations omitted). But, as explained above, this Circuit’s
precedent does not hold that Rule 48(a) confers unqualified
power or discretion on the Executive Branch. See id. at 741-42
(explaining that the “presumption of regularity” applies to
prosecutorial decisions only in the “absence of clear evidence
to the contrary”); see also Cowan, 524 F.2d at 513 (stating that
the “leave of court” phrase “was intended to modify and
condition the absolute power of the Executive, consistently with
the Framer’s concept of Separation of Powers, by erecting a
check on the abuse of Executive prerogatives”).
Instead, consistent with our system of checks and balances,
courts are tasked with making their own determination on whether
dismissal would be in the “public interest,” Rinaldi, 434 U.S.
24at 29 n.15; in order to uphold the “crucial” responsibility of
“maintaining [the] public perception of fairness and integrity
in the justice system,” Rosales-Mireles v. United States, 138 S.
Ct. 1897, 1907 (2018); see also Mistretta v. United States, 488
U.S. 361, 407 (1989) (“The legitimacy of the Judicial Branch
ultimately depends on its reputation for impartiality and
nonpartisanship.”). The court’s role is not “to serve merely as
a rubber stamp for the prosecutor’s decision,” even when “the
defendant concurs in the dismissal.” Ammidown, 497 F.2d at 620,
622. Rather, it is the court’s “duty to exercise a discretion
for the protection of the public interest.” Cowan, 524 F.2d at
511. The trial court therefore conducts an “examination of the
record” to ensure that the government’s “efforts to terminate
the prosecution [are not] tainted with impropriety.” Rinaldi,
434 U.S. at 30.
With the above principles in mind, in response to the
government’s motion to dismiss under Rule 48(a), the Court holds
that a judge may deny an unopposed Rule 48(a) motion if, after
an examination of the record, (1) she is not “satisfied that the
reasons advanced for the proposed dismissal are substantial”; or
(2) she finds that the prosecutor has otherwise “abused his
discretion.” Ammidown, 497 F.2d at 620-22.
First, in exercising its role pursuant to Rule 48(a), “the
court will not be content with a mere conclusory statement by
25
the prosecutor that dismissal is in the public interest, but
will require a statement of reasons and the underlying factual
basis.” Id. at 620. Rule 48(a) “contemplates exposure of the
reasons for dismissal ‘in order to prevent abuse of the
uncontrolled power of dismissal previously enjoyed by
prosecutors,’ and in pursuance of this purpose ‘to gain the
Court’s favorable discretion, it should be satisfied that the
reasons advanced for the proposed dismissal are substantial.’”
Id. “Thus, to honor the purpose of the rule, the trial court at
the very least must know the prosecutor’s reasons for seeking to
dismiss the indictment and the facts underlying the prosecutor’s
decision.” United States v. Derr, 726 F.2d 617, 619 (10th Cir.
1984); see also United States v. Greater Blouse, Skirt &
Neckwear Contractors Ass’n, 228 F. Supp. 483, 486 (S.D.N.Y.
1964) (“[T]o gain the Court’s favorable discretion, it should be
satisfied that the reasons advanced for the proposed dismissal
are substantial and the real grounds upon which the application
is based.”).
Second, a court may deny a Rule 48(a) motion upon a finding
of abuse of prosecutorial discretion where dismissal would be
“contrary to the public interest.” See In re Richards, 213 F.3d
773, 787 (3d Cir. 2000). In conducting this analysis, the court
determines whether the government’s “efforts to terminate the
prosecution [are] tainted with impropriety.” Rinaldi, 434 U.S.
26at 30. However, courts must be mindful not to “second-guess the
underlying charging decisions” or “impose [their] own views
about the adequacy of the underlying criminal charges” because
“their conception of the public interest differs from that of
the prosecuting attorney.” Fokker, 818 F.3d at 744-45 (citations
omitted). Examples of prosecutorial impropriety would include
where dismissal “does not serve due and legitimate prosecutorial
interests,” Ammidown, 497 F.2d at 622; where dismissal “was a
sham or a deception,” Cowan, 524 F.2d at 514; and where the
prosecutor’s dismissal was based on “acceptance of a bribe,
personal dislike of the victim, and dissatisfaction with the
jury impaneled,” United States v. Smith, 55 F.3d 157, 159 (4th
Cir. 1995). In addition, as indicated by the history of Rule
48(a), the corrupt dismissal of politically well-connected
individuals would also constitute an abuse of discretion. See
Woody, 2 F.2d at 262.
3. Whether To Deny Leave In This Case Is A Close
Question, But Is Mooted By Mr. Flynn’s Acceptance
Of The President’s Pardon
As an initial matter, the Court does not find that the
government’s submission is a mere conclusory statement of the
reasons for dismissal, and so denial of leave would not be
warranted on this ground. The majority of the cases finding
denial of leave appropriate based on “conclusory statements”
most often involve motions providing only one or two sentences
27
referring generally to the “public interest.” See, e.g., Derr,
726 F.2d at 619 (affirming denial of leave to dismiss when the
government offered no reasons for dismissal other than that it
would “best meet the ends of justice”). Here, on the other hand,
the government has sought to justify its decision to seek
dismissal by providing several reasons and facts underlying its
decision. See id.However, while not conclusory, many of the government’s
reasons for why it has decided to reverse course and seek
dismissal in this case appear pretextual, particularly in view
of the surrounding circumstances. For example, Mr. Flynn was
serving as an adviser to President Trump’s transition team
during the events that gave rise to the conviction here, and, as
this case has progressed, President Trump has not hidden the
extent of his interest in this case. According to Mr. Gleeson,
between March 2017 and June 2020, President Trump tweeted or
retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF
No. 225 at 66. This commentary has “made clear that the
President has been closely following the proceedings, is
personally invested in ensuring that [Mr.] Flynn’s prosecution
ends, and has deep animosity toward those who investigated and
prosecuted [Mr.] Flynn.” Id.At the September 29, 2020 motion hearing, Mr. Flynn’s
counsel, in response to the Court’s question, stated that she
28
had, within weeks of the proceeding, provided the President with
a brief update on the status of the litigation. Hr’g Tr., ECF
No. 266 at 56:18-20. Counsel further stated that she requested
that the President not issue a pardon. Id. at 56:23-24. However,
the President has now pardoned Mr. Flynn for the actions that
instigated this case, among other things. Ex. 1 to Consent Mot.
Dismiss, ECF No. 308-1 at 1. And simultaneous to the President’s
“running commentary,” many of the President’s remarks have also
been viewed as suggesting a breakdown in the “traditional
independence of the Justice Department from the President.” See,
e.g., Amicus Br., ECF No. 225 at 67-68; id. at 68 (quoting
Excerpts from Trump’s Interview with the Times, N.Y. Times (Dec.
28, 2017), https://www.nytimes.com/2017/12/28/us/politics/trump-
interview-excerpts.html) (reporting President Trump’s statement
that he enjoys the “absolute right to do what I want to do with
the Justice Department”).
Given this context, the new legal positions the government
took in its Rule 48(a) motion and at the motion hearing raise
questions regarding its motives in moving to dismiss. The
government advances two primary reasons 8 justifying dismissing
8 The government also asserted that dismissal is warranted
because “the interests of justice do not support continuing the
prosecution.” Gov’t’s Reply, ECF No. 227 at 9. Because the
majority of the government’s apparent reasons underlying this
rationale “are just the same facts that are legally irrelevant
to its materiality and falsity assertions,” Amicus Reply Br.,
29
the case based on its assessment of the strength of the case:
(1) it would be difficult to prove the materiality of Mr.
Flynn’s false statements beyond a reasonable doubt; and (2) it
would be difficult to prove the falsity of those statements
beyond a reasonable doubt. See Gov’t’s Reply, ECF No. 227 at 31.
As explained below, the Court finds both stated rationales
dubious to say the least, arguably overcoming the strong
presumption of regularity that usually attaches to prosecutorial
decisions.
a. Materiality
The government’s first rationale is that it believes that
Mr. Flynn’s false “statements were not ‘material’ to any viable
counterintelligence investigation—or any investigation for that
matter—initiated by the FBI.” Gov’t’s Mot. Dismiss, ECF No. 198
at 13; see also Gov’t’s Reply, ECF No. 227 at 34-35. In making
its arguments, however, the government relies on a newly-minted
definition of “materiality” that is more circumscribed than the
standard in this Circuit. The government describes the
materiality threshold as requiring more than “mere ‘relevance’”;
rather, the false statement must have “probative weight” and be
“reasonably likely to influence the tribunal in making a
determination required to be made.” Gov’t’s Mot. Dismiss, ECF
ECF No. 243 at 24, the Court does not address this argument
separately.
30
No. 198 at 12-13 (quoting Weinstock v. United States, 231 F.2d
699, 701 (D.C. Cir. 1956)). Therefore, “[t]he materiality
threshold thus ensures that misstatements to investigators are
criminalized only when linked to the particular ‘subject of
[their] investigation.’” Id. at 13 (quoting United States v.
Kim, 808 F. Supp. 2d 44, 59 (D.D.C. 2011)).
However, that is not the law. Rather, “[a] lie influencing
the possibility that an investigation might commence stands in
no better posture under § 1001 than a lie distorting an
investigation already in progress.” See United States v. Hansen,
772 F.2d 940, 949-50 (D.C. Cir. 1985) (“Application of § 1001
does not require judges to function as amateur sleuths,
inquiring whether information specifically requested and
unquestionably relevant to the department’s or agency’s charge
would really be enough to alert a reasonably clever investigator
that wrongdoing was afoot.”). Instead, the standard asks only
whether Mr. Flynn’s statements were “capable of affecting” the
“general function” of the FBI when it interviewed him. United
States v. Verrusio, 762 F.3d 1, 21 (D.C. Cir. 2014). As the D.C.
Circuit held in United States v. Moore, 612 F.3d 698 (D.C. Cir.
2010), “a statement is material if it has a natural tendency to
influence, or is capable of influencing, either a discrete
decision or any other function of the agency to which it was
addressed.” 612 F.3d at 701 (emphasis added); see also United
31
States v. Rodgers, 466 U.S. 475, 479 (1984) (calling the
application of 18 U.S.C. § 1001 “sweeping”). “Proof of actual
reliance on the statement is not required; the Government need
only make a reasonable showing of its potential effects.” United
States v. Diggs, 613 F.2d 988, 999 (D.C. Cir. 1979); see Moore,
612 F.3d at 702 (holding that defendant’s false statement “was
capable of affecting the Postal Service’s general function of
tracking packages and identifying the recipients of packages
entrusted to it” and defendant’s false information “could have
impeded the ability of the Postal Service to investigate the
trafficking of narcotics through the mails”).
Given the materiality threshold’s expansive scope, the
government’s new use of the narrowed definition of “materiality”
is perplexing, particularly given that the government has
previously argued in this case that the materiality standard
required only that a statement have a “natural tendency to
influence, or [be] capable of influencing.” See Gov’t’s Surreply
Def.’s Reply Support Mot. Compel, ECF No. 132 at 10-11. The
government, for its part, offers no response as to why it relies
on this new, more stringent definition. Nor does the government
direct the Court’s attention to any other case in which it has
advanced this highly-constrained interpretation of materiality
as applied to a false statements case.
32
Notably, during the September 29, 2020 motion hearing, the
government seemed to suggest that, when moving for dismissal of
an action pursuant to Rule 48(a), the government need not refer
to the correct materiality standard at all when determining
whether a false statement is “material.” See Hr’g Tr., ECF No.
266 at 78:21-79:3 (“[W]hen we move to dismiss, the question in
our mind is not what is the legal standard of materiality for
whether the evidence here will be sufficient to sustain a
conviction on appeal. The question is whether we, the Department
of Justice, think this evidence is material . . . .”). In view
of the government’s previous argument in this case that Mr.
Flynn’s false statements were “absolutely material” because his
false statements “went to the heart” of the FBI’s investigation,
the government’s about-face, without explanation, raises
concerns about the regularity of its decision-making process.
Furthermore, Rule 48(a)’s “leave of court” standard
requires the court to consider the objective reasonableness of
the government’s justification for seeking dismissal. Where, as
here, the government justifies its motion by ignoring applicable
law to now question the strength of its case, substantial doubt
arises about the government’s stated reasons for seeking
dismissal.
Several of the government’s arguments regarding materiality
also appear to be irrelevant or to directly contradict previous
33
statements the government has made in this case. For example, as
Mr. Gleeson points out, many of the “bureaucratic formalities”
the government asserts reveal the “confusion and disagreement
about the purpose and legitimacy of the interview and its
investigative basis”—such as the drafting of the FBI’s Closing
Communication or internal conversations between FBI and
Department of Justice officials regarding whether to notify the
Trump administration of Mr. Flynn’s false statements—are not
relevant to proving materiality. See Amicus Reply Br., ECF No.
243 at 19. Nor is it relevant whether Mr. Flynn was an “agent of
Russia” or guilty of some other crime at the time he made the
false statements. Furthermore, while the government argues that,
“since the time of [Mr. Flynn’s guilty] plea, extensive
impeaching materials had emerged about key witnesses the
government would need to prove its case,” Gov’t’s Reply, ECF No.
227 at 35; the government had been aware of much of this
evidence since early on in the case, see, e.g., Gov’t’s Response
Def.’s Mot. Compel, ECF No. 122 at 8-9. Under Ammidown, the
Court must be satisfied that the government undertook a
“considered judgment,” 497 F.2d at 620; and asserting a factual
basis that is largely irrelevant to meeting any legal threshold
likely does not meet this standard.
34
b. Falsity
The government’s second rationale is that it “does not
believe it could prove that Mr. Flynn knowingly and willfully
made a false statement beyond a reasonable doubt.” Gov’t’s Mot.
Dismiss, ECF No. 198 at 18; see also Gov’t’s Reply, ECF No. 227
at 38-39. To support this rationale, the government initially
pointed to the fact, which was known at the time Mr. Flynn pled
guilty, that the FBI agents who interviewed him did not think he
was lying, and it also noted the “equivocal” or “indirect”
nature of Mr. Flynn’s responses. Gov’t’s Mot. Dismiss, ECF No.
198 at 18. The government further contends that evidentiary
problems have “emerged” including: (1) “inconsistent FBI records
as to the actual questions and statements made,” id. at 19; (2)
“Director [James] Comey’s own sentiment that the case was a
‘close one,’” id. (quoting Ex. 5 to Gov’t’s Mot. Dismiss, ECF
No. 198); and (3) “substantial impeaching materials on the key
witnesses,” 9 Gov’t’s Reply, ECF No. 227 at 39. At the September
29, 2020 motion hearing, the government raised two more points:
(4) evidence that Mr. Flynn had a faulty memory, Hr’g Tr., ECF
No. 266 at 44:8, 155:5; and (5) the notes of the FBI’s Assistant
Director for Counter Intelligence as to the FBI interview’s
goal, id. at 83:11-20.
9 The Court has addressed this rationale in the materiality
section supra.
35
The Court is mindful that it is “particularly ill-suited”
to reviewing the strength of the case. Wayte v. United States,
470 U.S. 598, 607 (1985); see also In re United States, 345 F.3d
454, 455 (7th Cir. 2003) (finding that the trial court’s belief
that “the evidence was strong and conviction extremely likely”
was an inappropriate basis to deny leave). That said, the role
of the Court is to conduct an “examination of the record” in
order to ensure that the government’s “efforts to terminate the
prosecution [are not] tainted with impropriety.” Rinaldi, 434
U.S. at 30. Moreover, the Court examines the factual basis
underlying the government’s reasons because not doing so would
amount to rubber stamping the government’s decision, contrary to
the requirement of Rule 48(a). Here, the government has invited
the Court’s examination of its evidence. See Hr’g Tr., ECF No.
266 at 42:22-43:1 (stating that “we’re completely unafraid here
to address . . . the specifics as to why we thought we needed to
dismiss this case. . . . we’d be happy to go through the
evidence.”). Accordingly, the Court will briefly address some of
the evidence the government points to as it is troubled by the
apparently pretextual nature of certain aspects of the
government’s ever-evolving justifications. See Foster v.
Chatman, 136 S. Ct. 1737, 1751 (2016) (“[T]he prosecution’s
principal reasons for the strike shifted over time, suggesting
that those reasons may be pretextual.”).
36
As an initial matter, whether or not the FBI agents thought
Mr. Flynn was lying is irrelevant in a false statements case.
See Brogan v. United States, 522 U.S. 398, 402 (1998). And the
government has not explained how evidence that the government
previously stated was “consistent and clear,” Gov’t’s Surreply,
ECF No. 132 at 4-5; suddenly became “equivocal” or “indirect.”
With regard to the “inconsistent records” rationale, the
government has not pointed to evidence in the record in this
case that contradicts the FD-302 that memorialized the FBI
agents’ interview with Mr. Flynn. Furthermore, the government’s
reliance on Director Comey’s opinion about whether Mr. Flynn
lied is suspect given that Director Comey was not present at the
interview and that there are valid questions regarding the
admissibility of his personal opinion.
With regard to Mr. Flynn’s alleged “faulty memory,” Mr.
Flynn is not just anyone; he was the National Security Advisor
to the President, clearly in a position of trust, who claimed
that he forgot, within less than a month, that he personally
asked for a favor from the Russian Ambassador that undermined
the policy of the sitting President prior to the President-Elect
taking office. With regard to the government’s concerns about
the Assistant Director for Counter Intelligence’s contemplating
the goal of the interview, an objective interpretation of the
notes in their entirety does not call into question the
37
legitimacy of the interview. Finally, and critically, under the
terms of Mr. Flynn’s cooperation agreement, the government could
have used his admissions at trial, see Plea Agreement, ECF No. 3
at 8 ¶ 11; but the government ignores this powerful evidence.
Again, under Ammidown, the Court must be satisfied that the
government undertook a “considered judgment.” 497 F.2d at 620.
Asserting factual bases that are irrelevant to the legal
standard, failing to explain the government’s disavowal of
evidence in the record in this case, citing evidence that lacks
probative value, failing to take into account the nature of Mr.
Flynn’s position and his responsibilities, and failing to
address powerful evidence available to the government likely do
not meet this standard.
Thus, the application of Rule 48(a) to the facts of this
case presents a close question. However, in view of the
President’s decision to pardon Mr. Flynn, Mr. Flynn’s acceptance
of the pardon, and for the reasons stated in the following
section, the appropriate resolution is to deny as moot the
government’s motion to dismiss pursuant to Rule 48(a).
B. The Presidential Pardon Power
Article II, Section 2, of the United States Constitution
provides that “[t]he President . . . shall have Power to grant
Reprieves and Pardons for Offenses against the United States,
except in Cases of Impeachment.” U.S. Const. art. II, § 2, cl.
38
1. Though the Constitution confers the pardoning power on the
President generally, it is well-established that “the judiciary
has served as the supreme interpreter of the scope of the
constitutional powers since Marbury v. Madison.” See William F.
Duker, The President’s Power to Pardon: A Constitutional
History, 18 Wm. & Mary L. Rev. 475, 506 (1977); see also Marbury
v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the
province and duty of the judicial department to say what the law
is.”). Thus, the Court looks to precedent to determine the
validity of presidential pardons.
Beginning with Marbury, the Supreme Court has long
suggested that the President’s power to pardon is largely
unqualified. While not specifically mentioning the power to
pardon, the Supreme Court in Marbury explained that, “[b]y the
[C]onstitution of the United States, the president is invested
with certain important political powers, in the exercise of
which he is to use his own discretion, and is accountable only
to his country in his political character, and to his own
conscience.” 5 U.S. at 165-66. The Supreme Court stated that in
such cases, “whatever opinion may be entertained of the manner
in which executive discretion may be used, still there exists,
and can exist, no power to control that discretion.” Id. at 166.
Because the power had been “entrusted to the executive, the
decision of the executive is conclusive.” Id. Thus, the Supreme
39
Court in Marbury laid the foundation for the view that the
President has a “general, unqualified grant of power to pardon
offenses against the United States.” The Laura, 114 U.S. 411,
413 (1885).
In view of the principles set out in Marbury, the Supreme
Court thereafter instructed that the President’s power to pardon
is “granted without limit.” United States v. Klein, 80 U.S. 128,
147 (1871); see also Ex parte Garland, 71 U.S. 333, 380 (1866)
(“This power of the President is not subject to legislative
control. Congress can neither limit the effect of his pardon,
nor exclude from its exercise any class of offenders.”). The
“executive can reprieve or pardon all offenses after their
commission, either before trial, during trial or after trial, by
individuals, or by classes, conditionally or absolutely, and
this without modification or regulation by Congress.” Ex parte
Grossman, 267 U.S. 87, 120 (1925) (emphasis added).
The pardon power, however, is not without limitations. For
example, a presidential pardon generally must be accepted to be
effective. See Burdick v. United States, 236 U.S. 79, 94 (1915);
but see Biddle v. Perovich, 274 U.S. 480, 486-87 (1927)
(finding, where defendant sought his release upon the grounds
that he had not accepted the commutation of his death sentence
to life imprisonment, that “the public welfare, not his consent,
determines what shall be done”). “Once accepted, a full and
40
absolute pardon ‘releases the wrongdoer from punishment and
restores the offender’s civil rights without qualification.’”
United States v. Arpaio, No. 16-cr-1012, 2017 WL 4839072, at *1
(D. Ariz. Oct. 19, 2017) (quoting Absolute Pardon, Black’s Law
Dictionary (10th ed. 2014)).
On the other hand, a pardon does not necessarily render
“innocent” a defendant of any alleged violation of the law.
Indeed, the Supreme Court has recognized that the acceptance of
a pardon implies a “confession” of guilt. See Burdick, 236 U.S.
at 94 (“[A pardon] carries an imputation of guilt; acceptance a
confession of it.”); see also United States v. Schaffer, 240
F.3d 35, 38 (D.C. Cir. 2001) (“[A]cceptance of a pardon may
imply a confession of guilt.” (citing In re North, 62 F.3d 1434,
1437 (D.C. Cir. 1994)). As Chief Justice Marshall wrote, “[a]
pardon is an act of grace, proceeding from the power intrusted
with the execution of the laws, which exempts the individual on
whom it is bestowed, from the punishment the law inflicts for a
crime he has committed.” United States v. Wilson, 32 U.S. 150,
150 (1833) (emphasis added). In other words, “a pardon does not
blot out guilt or expunge a judgment of conviction.” In re
North, 62 F.3d at 1437. Furthermore, a pardon cannot “erase a
judgment of conviction, or its underlying legal and factual
findings.” Arpaio, 2017 WL 4839072, at *1 (citing United States
v. Crowell, 374 F.3d 790, 794 (9th Cir. 2004)); but see
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Schaffer, 240 F.3d at 38 (vacating “all opinions, judgments, and
verdicts of this court and the District Court” where “[f]inality
was never reached on the legal question of [the defendant’s]
guilt” (emphasis added)).
Here, the scope of the pardon is extraordinarily broad – it
applies not only to the false statements offense to which Mr.
Flynn twice pled guilty in this case, but also purports to apply
to “any and all possible offenses” that he might be charged with
in the future in relation to this case and Special Counsel
Mueller’s investigation. Ex. 1 to Consent Mot. Dismiss, ECF No.
308-1 at 1. However, the Court need only consider the pardon
insofar as it applies to the offense to which Mr. Flynn twice
pled guilty in this case. Mr. Flynn has accepted President
Trump’s “full and unconditional pardon.” See Consent Mot.
Dismiss, ECF No. 308 at 2. The history of the Constitution, its
structure, and the Supreme Court’s interpretation of the pardon
power make clear that President Trump’s decision to pardon Mr.
Flynn is a political decision, not a legal one. Because the law
recognizes the President’s political power to pardon, the
appropriate course is to dismiss this case as moot. However, the
pardon “does not, standing alone, render [Mr. Flynn] innocent of
the alleged violation” of 18 U.S.C. § 1001(a)(2). Schaffer, 240
F.3d at 38. Accordingly, in view of the Supreme Court’s
expansive view of the presidential pardon power, the Court
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grants the consent motion to dismiss this case as moot. See,
e.g., id.III. Conclusion
For the reasons stated above, the Court DENIES AS MOOT the
government’s motion to dismiss pursuant to Rule 48(a), ECF No.
198; and GRANTS the government’s consent motion, ECF No. 308,
based on the presidential pardon and DISMISSES this case AS
MOOT. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
December 8, 2020
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