Never Can Say Goodbye: Judge Mulls Dismissing Flynn Proceedings with Room for Prosecution by “A New Administration”


United States v. Michael T. Flynn, No. 1:17-cr-232 (EGS).  Hearing on government’s motion to dismiss on September 29, 2020.



A hearing was held today on the government’s motion to dismiss proceedings against Gen. Michael T. Flynn, and in particular whether the government may deny it, notwithstanding that the government has represented that there is no case against General Flynn.  The court, persuaded that he had discretion to deny the government’s motion to dismiss, wanted to know from counsel where that discretion began and where it ends.  The court mused about whether dismissal might be granted without prejudice, allowing room for further proceedings by  “a new administration,” or, the court quickly added, perhaps in a continuation of the current administration.

The court’s amicus urged the court not to succumb to the importuning of a coordinate branch, stating that the court ought not tarnish its chambers with dismissal because “the President wants Flynn off the hook.”   

With respect to defendant’s arguments that the government sought to create circumstances in which it would appear that Flynn had lied, amicus offered, “Where ya been?  That’s what they do!”  

[JustLawful aside:  Perhaps amicus, by virtue of his experience in the law, and as a judge, has grown deaf to the appearance of such remarks to those who may be unacquainted with investigative pressures.  “That’s what they do!” suggests that, simply by virtue of a thing being done, it were acceptable.  Were this so, of course, there would be no criminal law at all, and while custom and usage go far in the law, custom and usage are always bounded by the Constitution.]

Amicus assured the judge that the judge had done a good job in summarizing the case.  

Counsel for the government argued the law as well as for the moral dignity of the Department of Justice in its prosecutorial functions.  Counsel argued strenuously that prosecutors may cease prosecution on discovery that there was no basis to proceed, and that this was so in this case, as the facts disclosed to the court revealed.  A senior counsel in the U.S. Attorney’s office expressed distress that the office had been accused of behaving with political motivation, assuring the court that the Department of Justice  acts with integrity, and that includes review if a prosecution seems to have gone awry.

Counsel for General Flynn was last in line for the court’s inquiry, which was preceded by the court’s intimating that counsel had behaved unethically in communicating with the Attorney General when initially retained.  In addition,the court was particularly interested in counsel’s contacts with the President, which counsel disclosed.  Thus the threat of bar disciplinary proceedings was made before counsel was permitted to advocate.  

Counsel for General Flynn asserted that there is no basis in law for the court’s appointment of a private prosecutor in this matter in the guise of an amicus, and noted that the court’s intention to orchestrate the possibility of future prosecutions provided yet more evidence of bias, and moved for recusal of the judge, with written motions to follow.

There will be additional filings by counsel for the defendant as well as by the United States, as the court has asked the Department of Justice to look into what was done with evidence concerning texts between an FBI official and a private attorney.

The court took the matter under advisement, noting how voluminous was the record before him.