Trump DOJ Argues Federal Judges Must Complete Bribery Transactions (Really)

Today I listened to much of the argument in the Michael Flynn case before the en banc D.C. United States Circuit Court of Appeals. A quick primer on this bizarre and byzantine case is challenging, but I shall try.

Trump’s very brief Director of National Security, Michael Flynn, pled guilty to lying to the FBI. He did this many times, to include personally to the judge, and he did so under penalty of perjury. The Department of Justice itself repeatedly represented to the court that Flynn was guilty.

The judge in the case accepted Flynn’s guilty plea, entering a conviction, and scheduled him for sentencing. Then Trump tweeted about how horrible it was what happened to his good buddy. There were literally scores of such tweets, but here is one example.

Attorney General Barr intervened, declared he was investigating the matter, and the DOJ filed a motion to dismiss the charges against the already convicted Flynn.

The judge decided he wanted to consider the merits of the motion to dismiss. With both the government and the defendant now on the same side the judge appointed an amicus curiae (friend the court, in this case a retired judge) to brief and argue the other side. The judge then scheduled a hearing to weigh the competing arguments. For the record, the legal standard in Rule 48(a) of the Federal Rules of Criminal Procedure simply states, “The government may, with leave of court, dismiss an indictment, information, or complaint.”

Notably, the judge has not ruled against Flynn or denied the motion to dismiss. The issue is whether the judge can merely hear arguments, for and against, a motion pending before him. That’s it. Only after that hearing on the merits of the motion would the judge then rule on the merits of the motion.

In a split decision a three judge Court of Appeals panel ruled the judge cannot even conduct that hearing. The District Court judge then requested and received today’s rarely granted en banc review (a review by the full panel of the Court of Appeals). Some of the arguments presented by the counsel for your government of the United States were frightening.

The heart of the government’s argument was that under Rule 48(a) the judge must dismiss the case, as requested by the government, unless the defendant objects. This led to a series of hypotheticals from the ten inquisitive judges hearing the argument. I am paraphrasing, as I don’t have a transcript, but it went basically like this.

Judge: Okay, here’s the scenario. The Attorney General for the United States is in the court room. The judge sees the defendant’s lawyer walk over a suitcase full of money which he gives to the Attorney General. The AG checks the cash, and promptly stands up to request a dismissal of all charges against the defendant. Under your argument, is the judge then required to be a party to completing the quid pro quo bribery and dismiss the case as requested by the bribed Attorney General.

DOJ Attorney: [After some hemming and hawing] Yes.

Let that sink in. Your United States government just argued to judges that a judge must be complicit in bribery even if they personally observe the bribery. Per Trump’s DOJ the law requires the judge to participate in breaking the law and completing the offense. A stronger commentary on the open corruption of the Trump Administration is not possible.

To be fair, the DOJ Attorney did say there could be other remedies, like bribery charges against the Attorney General (and who could filed that?) or his impeachment by Congress. However, the judge in the above scenario could not even consider that the motion he was being asked to rule on had been procured by bribery, and the judge would nonetheless have to play along with the bribery and complete himself the bribery transaction by granting the motion.


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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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