I just spent nearly four hours of my life that I can never get back listening to oral arguments in the Flynn case. At issue was D.C. Circuit federal appeals court’s en banc reconsideration — i.e., review by the full court, ten judges in this instance (one having recused) — of the ruling by a divided three-judge panel of the court, which issued a writ of mandamus ordering Judge Emmet Sullivan to grant the Justice Department’s dismissal of the case. (I wrote about the case over the weekend, here.)
In truth, the hearing (by teleconference) was quite interesting. For now, though, I just want to address a media account about it, because it goes to show why people have become skeptical of news reporting. In scanning some of the coverage, I noticed this loaded headline at CNBC: “Government lawyer suggests Attorney General Barr had secret reasons for dropping Flynn criminal case.”
No, that is not what the government lawyer said.
One of the major aspects in the case is a provision in Rule 48(a) of the Federal Rules of Criminal Procedure, which requires the prosecutor to obtain “leave of court” in order to dismiss a criminal case. This provision is in tension with constitutional law, under which the decision to commence or persist in a prosecution is vested solely in the executive branch. So the core questions are: Does the “leave of court” requirement permit the judge to conduct some inquiry into the Justice Department’s reasons for dropping a case? And, if so, how much inquiry is tolerable before the court crosses the line, violating separation of powers by intruding on the executive’s discretion?
As you might imagine, there was a good deal of back-and-forth on this, particularly between the judges and Jeffrey Wall, the acting solicitor general, who argued the case for the Justice Department. This discussion shifted from (a) hypotheticals about how little the government could theoretically get away with disclosing about its reasoning, to (b) how much it had actually disclosed in the Flynn case. Wall made it clear that, whatever might in the abstract be the base level of required disclosure, the Justice Department had gone well above it in Flynn’s case. Here, Judge Sullivan was given a submission arguing that the case should not have been brought in the first place; it posited a legal theory that there was no crime, supported by factual disclosures that were, in turn, backed up by witness statements and other evidence.
As the discussion between Wall and the judges unfolded, a question arose about whether the prosecutor is obliged to tell the court all of its reasons for dropping a case, or if it is sufficient to impart just enough information to satisfy the court that the dismissal is not sought for an improper purpose. (The Justice Department argues that the court’s inquiry into improper purpose is limited to ensuring that the defendant agrees with the dismissal.) In explaining why there is no requirement to tell the court everything the prosecutor knows, Wall pointed out that very often the prosecutor will be aware of information from the investigation that might inform the decision to dismiss but that, for a host of good reasons, should not be disclosed.
In this vein, Wall added, it was entirely possible that Attorney General Barr might be aware of non-public information from the Flynn investigation and related investigations that should not be publicized, and that there would be no need to reveal it because the court had already been given more than enough information to be satisfied that the dismissal motion was proper.
In context, Wall seemed to be speaking theoretically, not based on personal knowledge of the investigations and what the attorney general knows about them. That’s not just the way I heard it; the judges plainly heard it the same way because there was no follow-up. It was a point worthy of making, but not one that called for probing.
Wall was not saying that Barr was in possession of or had relied on “secret information” that is being withheld from Judge Sullivan. Nor was he saying Barr had no such information, as it would be normal to have it. In fact, Wall did not seem to have the Flynn case in mind at all. He was in the position of the Justice Department’s lawyer looking out for the institutional interests of prosecutors. It is commonplace for prosecutors to be aware of non-public information that is not disclosed in relevant court proceedings — maybe it’s grand-jury material, maybe disclosure would compromise an informant, maybe revealing it would hurt investigators’ ability to conduct effective interviews of witnesses, etc.
None of this is similar. There are well-known rules of the road. Prosecutors must disclose exculpatory information. And there is a duty of candor toward the tribunal. If a prosecutor makes a statement that could be misleading if other information is not disclosed, then that information must be disclosed. If a judge asks a question, the prosecutor must either answer it or inform the judge that the government declines to answer it — the court must not be placed under a misimpression. But all that said, the prosecutor simply needs to show that his reasoning satisfied any legal requirement, not to disclose every fact that informed his reasoning.
All the acting solicitor general was saying is that there is no legal obligation to inform the court of everything the prosecutor knows. He was not signaling that there is some explosive secret information somehow bearing on the Flynn dismissal motion that has been withheld from Judge Sullivan.