Former Clinton U.S. Attorney Calls Upon Sullivan To “Make Trouble” For The Administration

The Los Angeles Times has posted a column by UCLA Law Professor and former U.S. Attorney under Bill Clinton, Harry Litman. The column that captures just how disconnected legal analysis has become in the Trump era.  Litman in the column admits, to his credit, that the precedent overwhelmingly opposes a denial of motion to dismiss. However, Litman then encourages U.S. District Judge Emmet G. Sullivan to use the hearing to “make trouble” for the Justice Department — a goal disconnected from the inescapable legal precedent (and thus the judicial obligations) presented by the motion.  There is a word for using hearing to gratuitously “make trouble” for the Executive Branch: judicial activism.  I have previously written about the need to dismiss the Flynn case and criticized those who dismiss new evidence of wrongdoing by the prosecutors.

Litman’s column follows the pattern of not even discussing the allegations facing the prosecutors or the new information. There is no mention of the possible false statements or withheld evidence in the case.  There is no mention of new evidence showing findings of no criminality but high-level interventions to keep the investigation alive. The case is presented again in an immaculate fashion where the impropriety of the Justice Department is presented as established and beyond question.  While I have admitted to coming to these disputes with the bias of a long-standing criminal defense attorney, I at least acknowledge the opposing arguments on the merits.

However, the most disconcerting part of the column is that the merits seem secondary to the point:

“Still, Sullivan doesn’t have to deny the motion to make trouble for the department. He could order an evidentiary hearing to evaluate the motion’s chief contentions, and that would not be a pretty day for the department. It could result in making public the transcripts of the calls between Flynn and the Russians. The department claims the conversations were innocuous and pro forma; the smart money suggests otherwise.”

Litman acknowledges that Sullivan has no real choice but to grant the motion to dismiss since a denial “would go against the grain of federal court rulings, in particular from Sullivan’s own D.C. Court of Appeals, which specify that dismissing criminal charges “lie[s] squarely within the ken of prosecutorial discretion.”  Yet, despite worrying about the “assault on the rule of law,” Litman encourages Sullivan to use a hearing on the motion to “make trouble” for the Administration.

Let’s unpack that statement because, while I consider it wrong, it is far more honest and direct than many commentators.  Litman is saying that the outcome of the motion seems pretty cut and dry, as I have previously written in columns.  The precedent is clear and Sullivan would likely be rapidly reversed in a denial.  Most judges are careful not to exceed the question before it.  If the law is clear on the motion, the question is the authority of the court to use a hearing to seek to cause trouble or embarrassment for the Administration.  That would effectively amount to the staging of a hearing for a purpose other than the merits of the legal question before the Court.

Litman also heralds the appointment of former federal judge, John Gleeson, to argue against the motion (and consider a perjury charge against Flynn) without even mentioning the highly controversial notion of such third party arguments in a criminal case.  Again, the law in this area is detached from the ability to use such appointments to cause trouble for the Administration.

Litman’s premise is that, while the law favors the government’s motion,

“Sullivan doesn’t have to deny the motion to make trouble for the department. He could order an evidentiary hearing to evaluate the motion’s chief contentions, and that would not be a pretty day for the department. It could result in making public the transcripts of the calls between Flynn and the Russians. The department claims the conversations were innocuous and pro forma; the smart money suggests otherwise.”

That sounds a lot like using a hearing on a motion for a purpose other than the merits, to engineer an ugly scene for the Administration simply because the Court has the defendant as a captive in the courtroom.

Litman then seems to untethered his writing from his prior legal analysis that the law in the area is clearly in favor of the motion.

“But Sullivan needn’t deny or attack the principle of prosecutorial discretion; he can simply deny the motion on the grounds that the government’s arguments don’t hold water. The DOJ claims there is new evidence that supports dismissal, but none has been cited. It says there was no basis for questioning Flynn in the first place, but the predicate for suspecting Flynn is clear — the intercepted phone calls — as the department’s own inspector general expressly found.”

So, let’s unpack again.  The law is clear that the Justice Department should make this determination that it cannot ethically prosecute the case. However, the Court could deny the motion by finding that, despite the recognition of prosecutorial discretion, the Court believes it can prosecute the case … but that is not a denial of prosecutorial discretion.

This position is supported by the conclusory statement that “[t]he DOJ claims there is new evidence that supports dismissal, but none has been cited.” With all due respect to Litman, that is simply not true. The Justice Department and the defense have presented highly disturbing allegations of prosecutors who refused to drop the investigation even after no criminality was found against Flynn.  They also detailed how high-ranking prosecutors turned to the flagrantly unconstitutional Logan Act as the final option to come up with a crime, any crime, to allege against the incoming National Security Adviser.  Litman may not be bothered by such evidence but it was presented.

Once you acknowledge that the law is clear on the discretion of the Justice Department to dismiss its own criminal case, the rest is just sport.  This is a moment that many, including Litman, seem to relish:

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