At least in one situation: if it has moved to dismiss a prosecution under Federal Rule 48(a). If that is the case, the DOJ argued on Tuesday, the U.S. Attorney General could literally accept a bag of cash from the defendant in open court, and the judge would still have to grant the motion to dismiss.
It said this in a hearing about its decision to dismiss the charges against former National Security Advisor Michael Flynn. As you may recall, Flynn was one of the Trump officials who some claimed—and I know this will seem hard to believe—were involved in Russia-related shenanigans before and after the election and then lied to the FBI about it. In Flynn’s case, this was based on nothing more than evidence, and it looked like he might actually get jail time on these charges just because he pleaded guilty to them twice. Because of this injustice, and not because the President wanted the charges dropped, U.S. Attorney General Bill Barr decided to drop the charges.
Concerned that the decision might in fact have something to do with the President’s wishes, Judge Emmet Sullivan appointed a retired judge to act as amicus curiae and review things. This is unusual, but then so is a sudden decision by the executive branch to drop charges against a guy who pleaded guilty to lying about things that might involve the head of the executive branch. With the prosecution and defendant in agreement, there was nobody to take a contrary position, which is normally how claims are tested in an adversary system. Hence the appointment.
In June, the amicus filed a brief arguing that there was “clear evidence of a gross abuse of prosecutorial power” and that Flynn had committed perjury. In response, the government argued that it didn’t make any difference: it was gonna drop the charges and there was nothing the judge could do about it. Flynn filed a petition asking the D.C. Circuit to order the judge to grant its motion, and a divided panel agreed. Sullivan asked the full D.C. Circuit to review this, and that hearing took place on Tuesday.
The legal issue is actually pretty straightforward. Rule 48(a) says: “The government may, with leave of court, dismiss an indictment, information, or complaint.” See the issue? With leave of court. Hm. Well, what could that possibly mean? To the government, it means this: The court may ask the government if it really wants to dismiss, and then it must grant leave to do that.
I am not making that up.
If there are improprieties, the DOJ argues, those can and should be addressed in other ways, but a judge can do nothing because the decision whether to prosecute is always up to the executive branch, no matter what. For the judge to intervene would violate separation of powers.
Okay, with that setup, here is a rough transcript of the relevant argument sections, adapted from C-SPAN’s even rougher transcript. In this first section, Judge Robert Wilkins asks Flynn’s attorney if a judge could consider allegations that a dismissal (not this one, of course) was the result of a bribe. And not just any bribe, but one witnessed by a bunch of nuns and bishops with smartphones:
Judge Wilkins: Good morning, Ms. Powell. I have a hypothetical. Suppose in the future, in a different administration, you had a 48(a) motion that was filed … and the prosecution said it is because of exculpatory evidence that we are moving to dismiss, and a Catholic University law professor asks to be appointed amicus because a group of nuns and bishops happened to witness the prosecutor taking a briefcase full of cash from the defendant in the case, and they made a videotape using their smartphones of the transaction and presented that to him along with sworn declarations, and so he wants to file an amicus brief and attach that evidence. Is that improper?
Powell: Well, that would certainly be improper behavior by the prosecutor and worthy of prosecution itself ….
Judge Wilkins: Is appointment of that professor as amicus improper?
Powell: I believe it would be, if the government had already filed a 48(a) motion and decided through appropriate channels to drop the case…. [T]he considerations that go into that belong to the Department of Justice, not the … judiciary, although [DOJ] could certainly make a criminal referral and should.
Judge Wilkins: So [what if] the district judge says “I am not going to appoint an amicus because the defendant has objected, I am going to hold a hearing and ask those witnesses to come to the hearing and bring their video footage of this alleged bribe.” The district judge … cannot hold that hearing?
Powell: He cannot go behind the prosecutor’s decisions to dismiss a case, and he certainly can’t on the facts of this case. I mean, one of the reasons—
Judge Wilkins: I’m asking you about my hypothetical. Would it be improper for the district judge to hold a hearing under the facts of my hypothetical?
Powell: [U]nder the facts of your hypothetical, what the district judge would have to do is refer the matter to [DOJ] for prosecution.
So, if a group of nuns and bishops offer the judge a video of a prosecutor taking a bribe, all the judge can do is ask DOJ to prosecute its prosecutor.
Just to confirm what he was hearing, Judge Wilkins brought this up again later:
Judge Wilkins: Just following up on my earlier hypothetical just so that we’re clear. If, in that situation, the district judge said “I want to have a hearing …, and I want to have the nuns and priests testify and view their videotape showing this alleged handing over of cash from the defendant to the prosecutor,” you would say they have no authority to proceed in that fashion?
Powell: I would say he does not have that authority under rule 48(a). He would need to refer it for prosecution by the Department of Justice.
Just to double-confirm what he was hearing, Judge Wilkins brought it up again later with the attorney representing DOJ, acting Solicitor General Jeffrey Wall:
Judge Wilkins: So if in my hypothetical, there is a videotape of the U.S. Attorney taking a suitcase full of cash and the judge wants to have a hearing on that because that same U.S. Attorney signed the motion, you would say that that hearing is appropriate or not appropriate under rule 48(a)?
Wall: I would say the hearing to make sure that the executive branch actually wants to dismiss is not a problem. But if the U.S. Attorney shows up and says, “I want to dismiss, we’ll deal separately with whether the AUSA [Assistant U.S. Attorney] committed bribery,” no, [not appropriate].
Again, the argument is that all a judge can do is ask the executive what it wants (I guess in case the executive made a mistake or something), and then do that. But this was a slightly different hypothetical than before, Wilkins noted: In this one, it’s not just some DOJ attorney who took the bribe, it’s the one who signed the motion to dismiss:
Judge Wilkins: Excuse me, sir. My hypothetical is that the U.S. Attorney is the one in the videotape making a bribe and the judge makes that factual finding—that the person standing in front of him, the U.S. Attorney, is the person in the videotape.
Wall: [long pause] Again, that’s the toughest case at the margin, I will give you [that], but my answer’s still the same. The court can ask the AG or the Deputy Attorney General if they really want to dismiss. If the answer from the executive branch is yes, then whether some individual in the executive branch has committed a crime is not the domain of Rule 48(a). The executive branch could prosecute … [b]ut it would not be a basis for denying the Rule 48(a) motion. It would be a separate criminal proceeding …. I think the court would be required to grant the motion and dismiss the prosecution.
Okay, then, what if the prosecutor who took the bribe is not just a U.S. Attorney, but the Attorney General?
Judge Wilkins: Suppose there is a hypothetical situation 10 years from now with an administration where the Attorney General is in the videotape by the nuns [showing him] taking the bribe. No authority under 48(a) to dismiss the case?
Wall: No, my answer is still the same. The political and public remedies for that are so obvious that it wouldn’t need to be in the domain of Rule 48(a) and I don’t think anyone has contemplated that Rule 48(a) is meant to aim at that sort of political corruption.
Judge Wilkins: So the case would still get dismissed as to that defendant who bribed the Attorney General? The Attorney General might be prosecuted or impeached, but the defendant would still get off scot-free as a result of committing a bribe? Is that the way 48(a) works?
Wall: Maybe if I can come at it a different way, Judge Wilkins. In the vast majority of cases where what we’re talking about is not commencing [i.e. bringing] charges, I think everyone, even the district court, agreed that there’s no role for courts to play under Rule 48(a), even if they think the executive has failed to prosecute for some improper reason, like bribery, like favoritism, like corruption. Everyone agrees that the executive can’t be made to prosecute the case, no matter how impermissible its motive…. All we’re saying is that … the same rule applies to Rule 48(a) if we have brought the charge…. Dismissing it is the same as bringing it as a constitutional matter. It [bribery] is bad conduct, to be sure. It should be punished, to be sure. There are other remedies for it. But they do not [involve] Rule 48(a).
Judge Wilkins: A 48(a) motion can be made after sentencing. Are you saying if the Attorney General is bribed by the defendant after the sentence because the defendant did not like the sentence he got, the court would still have to vacate the conviction … even with a videotape evidence of a bribe to the Attorney General?
Wall: There is no substantial role for courts to perform that sort of judicial screening and oversight. The executive branch’s conduct of prosecutions is governed … by the legislative branch and the public through legislative oversight, impeachment, and the rest. It is not governed by the courts under Rule 48(a), that is right.
Other judges asked similar questions, including Judge Patricia Millett. Here, she asks Wall about DOJ’s position that the district judge must be prevented by an immediate writ of mandamus from even investigating such allegations, because even doing that would be hurtful to the executive branch. Why? she asked. You could even just refuse to cooperate, she suggested, and then appeal in the usual way. What’s your hurry?
Judge Millett: I am talking about the process for the government to avoid injury…. If you … feel like you don’t have to answer, you can refuse to answer [and then appeal].
Wall: I think the process itself is harmful and … not permissible because you are extending the criminal process, you are asking the executive to expose its deliberative process, you are threatening to reveal sensitive information—
Judge Millett: Asking. Wait, wait, wait—No one is threatening to reveal. You have complete control over that. We are asking the government to reveal something that the government considers to be privileged—and maybe the district court is wrong as rain. But the district court thinks it is an open question. That’s mandamusable every time a question like that is asked? In every district court across this country? That’s mandamusable?
I want to make clear that it pains me even to type the word “mandamusable,” but that’s the word she used. Wall answers “no,” but as you can see, “no” means “yes”:
Wall: No, Judge Millett. When a district court in this circuit begins to probe in that way with respect to … a rule 48 motion, it is mandamusable … and the reason, and I may not persuade you, but the reason is that the harm from usurping a constitutionally invested power in another branch is–
Judge Millett: Your position is …. Just asking the question is a constitutional violation, just so we understand?
Saying this surprised her, Judge Millett offered one more version of the hypothetical. This time, the defendant hands the money to the prosecutor in court, right in front of the judge, and the prosecutor then stands up and moves to dismiss, claiming—despite previous assurances and what the judge has just seen—that DOJ is dismissing because it has learned it didn’t turn over exculpatory evidence, as the Brady case requires:
Judge Millett: Just to be clear, … this is a hypothetical case. You have a criminal case and the district court has a standard order on Brady disclosures. The district court before trial goes, “I want to make sure you have done everything, you have given them everything you have, you have asked everyone who would know or have information,” and the government says “yes, yes, yes. There is nothing else…. We have given the defendant everything…. [E]verything has been disclosed. Absolutely, your honor.” So the first day of trial, in the presence of the court, the defendant’s attorney hands the prosecutor a briefcase overflowing with $20 bills. It is handed to the prosecutor who is the U.S. Attorney and the Attorney General is standing right there next to her. And the government, upon receipt of that briefcase, submits … a Rule 48 motion to dismiss, [saying] there was a Brady violation in this case. In the presence of the district court, money has exchanged hands. Previous presentations about Brady are now being undermined. And your position … is that the district court has no choice but to grant that motion to dismiss. And that would be true even if it is unclear whether the district court could prosecute [anyone for] criminal contempt … after a case is dismissed.
This idea that the executive branch has vast if not absolute authority, and that it must in order to do its job, has been percolating for a while now. One of its biggest proponents is John Yoo, who once wrote a memo saying the executive branch could torture people and yet seems surprised that the current executive is completely out of control. The Democrats were more squeamish about torture, but didn’t do much to rein in the executive branch when they controlled it, as evidenced by (for example) that time President Obama dropped a bomb on a U.S. citizen. I guess in view of stuff like that, it shouldn’t be too shocking that the executive branch is saying it could accept bribes in full view of the judiciary and the only remedy is to ask it to police itself. And yet it still kind of is.