United States v. Flynn

• Court: District Court, District of Columbia
• Decided: December 8, 2020
• Docket: Criminal No. 2017-0232
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

MICHAEL T. FLYNN, Crim. Action No. 17-232 (EGS) Defendant.

MEMORANDUM OPINION

Pending before the Court are: (1) the government’s motion

to dismiss the criminal information against Mr. Flynn with

prejudice pursuant to Federal Rule of Criminal Procedure 48(a),

see Gov’t’s Mot. Dismiss Criminal Information Against Def.

Michael T. Flynn (“Gov’t’s Mot. Dismiss”), ECF No. 198; and (2)

the government’s notice of executive grant of clemency and

consent motion to dismiss this case as moot, see Notice

Executive Grant Clemency Consent Mot. Dismiss Moot (“Consent

Mot. Dismiss”), ECF No. 308. Upon careful consideration of the

motions, the applicable law, the entire record herein, and for

the reasons explained below, the Court DENIES AS MOOT the

government’s motion to dismiss pursuant to Rule 48(a), and

GRANTS the government’s consent motion based on the presidential

pardon and DISMISSES this case AS MOOT. I. Background

Mr. Flynn served as a surrogate and national security

advisor for then-candidate Donald J. Trump during the 2016

presidential campaign. Statement of Offense (“SOF”), ECF No. 4

at 1 ¶ 1. 1 After the November 2016 election, Mr. Flynn became a

senior member of the President-Elect’s Transition Team. Id. Mr.

Flynn served as the National Security Advisor to President Trump

from January 22, 2017 until he resigned on February 13, 2017.

Ex. 1 to Def.’s Reply Mot. Compel, ECF No. 133-1 at 1-2.

A. The FBI Investigation Into Mr. Flynn’s Activities

The criminal conduct underlying the offense, as set forth

in the Information, was admitted to by Mr. Flynn when he entered

his guilty pleas in this case. See, e.g., Information, ECF No. 1

at 1-2; Plea Hr’g Tr. (Dec. 1, 2017), ECF No. 16 at 18-19;

Sentencing Hr’g Tr. (Dec. 18, 2018), ECF No. 103 at 9-10. The

Information, which was filed on November 30, 2017, charged Mr.

Flynn with one count of willfully and knowingly making

materially false statements to the Federal Bureau of

Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a)(2),

during his interview with two FBI agents on January 24, 2017 in

the White House. See Information, ECF No. 1 at 1-2; see also

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document.

2 Sentencing Hr’g Tr., ECF No. 103 at 32. Under oath and with the

advice of counsel, Mr. Flynn pled guilty to the crime on

December 1, 2017. Plea Hr’g Tr., ECF No. 16 at 30-31; see also

Plea Agreement, ECF No. 3 at 10.

According to the record evidence in this case, on July 31,

2016, the FBI opened an investigation, code-named “Crossfire

Hurricane,” into the Russian Federation’s (“Russia”) efforts to

interfere in the 2016 election, which included determining the

existence of any links between Russia and individuals associated

with the Trump campaign. SOF, ECF No. 4 at 1 ¶ 1. 2 Among other

things, the Crossfire Hurricane investigation set out to

determine who, if anyone, from the campaign may have “been in a

2 On May 17, 2017, then-Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller, III to serve as Special Counsel for the United States Department of Justice and authorized the Special Counsel to investigate the Russian government’s efforts to interfere in the 2016 election, including any matters arising from that investigation. Special Counsel Robert S. Mueller, III, U.S. Dep’t of Justice, Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Vol. I of II (“Mueller Report”) (Mar. 2019), ECF No. 79-1 at 19. The Special Counsel was duly authorized to prosecute federal crimes arising from the investigation. Id. The Special Counsel concluded that Russia interfered in the 2016 presidential election in two principal ways: (1) carrying out a social media campaign favoring then-candidate Trump and disparaging then-candidate Hillary Rodham Clinton; and (2) “conduct[ing] computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then releas[ing] stolen documents.” Id. at 9. The Special Counsel’s “investigation also identified numerous links between the Russian government and the Trump Campaign.” Id. 3 position to have received the alleged offer of assistance from

Russia.” Ex. 1 to Amicus Br., ECF No. 225-1 at 13.

Against this backdrop, and “as part of the larger Crossfire

Hurricane umbrella,” the FBI launched an investigation into Mr.

Flynn on August 16, 2016, in order to determine whether he was

“being directed and controlled by and/or coordinating activities

with the Russian Federation in a manner which may be a threat to

the national security and/or possibly a violation of the Foreign

Agents Registration Act, [18 U.S.C. § 951 et seq.], or other

related statutes.” See Ex. 2 to Gov’t’s Mot. Dismiss, ECF No.

198-3 at 2-3. The communication describing the opening of the

investigation into Mr. Flynn, code-named “Crossfire Razor,”

noted that: (1) Mr. Flynn was “an adviser to the Trump team on

foreign policy issues”; (2) he had “ties to various state-

affiliated entities of the Russian Federation”; (3) he had

“traveled to Russia in December 2014”; and (4) he had “an active

TS/SCI clearance.” Id. At some point prior to January 4, 2017,

though, the FBI drafted a “Closing Communication” to close the

case, noting that certain investigative steps had yielded “no

derogatory information” on Mr. Flynn and that the “FBI is

closing this investigation.” See Ex. 1 to Gov’t’s Mot. Dismiss,

ECF No. 198-2 at 2, 5. The document also stated: “If new

information is identified or reported to the FBI regarding the

activities of CROSSFIRE RAZOR, the FBI will consider reopening

4 the investigation if warranted.” Id. at 5. Despite the written

communication, the case was not closed at that time. See Gov’t’s

Mot. Dismiss, ECF No. 198 at 4.

On December 21, 2016, Egypt introduced a resolution to the

United Nations (“U.N.”) Security Council regarding Israeli

settlements, and the vote on the resolution was scheduled for

December 22, 2016. SOF, ECF No. 4 at 4 ¶ 4. On December 29,

2016, then-President Barack H. Obama imposed sanctions on Russia

for its interference in the 2016 presidential election. See id.

at 2 ¶ 3(a). Before the President-Elect was sworn into office

and prior to the closing of Crossfire Razor, Mr. Flynn engaged

in conversations with the then-Russian Ambassador between

December 22, 2016 and December 31, 2016. Id. at 2-5 ¶¶ 3-4.

Based on these communications, the FBI continued its

investigation into Mr. Flynn and did not close the investigation

of him. See Gov’t’s Mot. Dismiss, ECF No. 198 at 4-7.

As the investigation continued, Mr. Flynn made a series of

materially false statements to FBI investigators during an

interview at the White House on January 24, 2017 about his

conversations with the Russian Ambassador. SOF, ECF No. 4 at 1-2

¶ 2 (stating that “[Mr.] FLYNN’s false statements and omissions

impeded and otherwise had a material impact on the FBI’s ongoing

investigation into the existence of any links or coordination

between individuals associated with the [Trump] Campaign and

5 Russia’s efforts to interfere with the 2016 presidential

election”); see id. at 2-5 ¶¶ 3-4; see also Information, ECF No.

1 at 1-2. Mr. Flynn admitted to lying to the FBI about his

request on or about December 29, 2016 to the Russian Ambassador

that Russia refrain from escalating the situation in response to

the sanctions imposed by the United States against Russia, and

about the Russian Ambassador telling Mr. Flynn that Russia

decided to moderate its response to the sanctions. SOF, ECF No.

4 at 2-3 ¶ 3. In addition, Mr. Flynn admitted to making false

statements to the FBI about his request on or about December 22,

2016 to the Russian Ambassador that Russia vote against or delay

Egypt’s resolution to the U.N. Security Council, that the

Russian Ambassador never described to Mr. Flynn Russia’s

response to his request, that Mr. Flynn did not request certain

countries to take a particular position on the resolution, and

that Mr. Flynn only asked the countries for their respective

positions on the vote. Id. at 4-5 ¶ 4.

Separately, Mr. Flynn also admitted to making false

statements in the documents that he submitted to the United

States Department of Justice on March 7, 2017 under the Foreign

Agents Registration Act, 22 U.S.C. §§ 611–621 (“FARA”). Id. at 5

¶ 5; see also Addendum to Gov’t’s Mem. in Aid of Sentencing, ECF

No. 75 at 3 (stating that “[Mr. Flynn] stipulated and agreed

that he violated FARA by making materially false statements” in

6 the FARA filings). Those FARA filings concerned a project that

Mr. Flynn and his company, Flynn Intel Group, Inc. (“FIG”),

performed on behalf of the Republic of Turkey. SOF, ECF No. 4 at

5 ¶ 5. Mr. Flynn, however, was not charged with any FARA

violations. See Information, ECF No. 1 at 1; see also Status

Hr’g Tr. (Sept. 10, 2019), ECF No. 114 at 20. For purposes of

sentencing, Mr. Flynn did not dispute the relevance of the FARA

references in the government’s description of the nature and

circumstances of his offense. See Gov’t’s Mem. in Aid of

Sentencing, ECF No. 46 at 3-5; see also Def.’s Mem. in Aid of

Sentencing, ECF No. 50 at 12. Indeed, the government confirmed

that Mr. Flynn could have been charged with making false

statements in the FARA filings. Sentencing Hr’g Tr., ECF No. 103

at 28. Under the terms of the Plea Agreement, the government

agreed not to further prosecute Mr. Flynn for the criminal

conduct described in the SOF. Plea Agreement, ECF No. 3 at 2 ¶

3. In the final analysis, the government did not charge Mr.

Flynn with violating the Logan Act, 18 U.S.C. § 953, or with

being a foreign agent. See Information, ECF No. 1 at 1.

B. Mr. Flynn’s Guilty Pleas And Subsequent Motion To Withdraw His Guilty Plea

On November 30, 2017, Mr. Flynn entered into a plea

agreement with the government upon the advice of counsel. See

Plea Agreement, ECF No. 3 at 10. Judge Rudolph Contreras

7 accepted Mr. Flynn’s guilty plea on December 1, 2017, finding

that Mr. Flynn entered the plea knowingly, voluntarily, and

intelligently with the advice of counsel. Plea Hr’g Tr., ECF No.

16 at 4, 30-31.

On December 7, 2017, this case was randomly reassigned to

this Court. See generally Docket for Crim. Action No. 17-232. On

December 18, 2018, this Court accepted Mr. Flynn’s guilty plea a

second time. Sentencing Hr’g Tr., ECF No. 103 at 5, 16. During

that hearing, the Court extended the plea colloquy in view of

Mr. Flynn’s statements in his sentencing memorandum, which

raised questions as to whether Mr. Flynn sought to challenge the

conditions of the FBI interview. See generally Def.’s Mem. in

Aid of Sentencing, ECF No. 50 at 6-18. Under oath, Mr. Flynn

confirmed that his rights were not violated as a result of the

circumstances of his January 24, 2017 FBI interview and the

allegations of misconduct against FBI officials. Id. at 11-12.

And Mr. Flynn declined the Court’s invitation for the

appointment of independent counsel to advise him. Id. at 9-10.

Noting that the Court’s usual practice is to impose a

sentence only after the completion of a defendant’s cooperation,

the Court granted Mr. Flynn’s request to continue the sentencing

hearing to allow him to further cooperate with the government

after considering defense counsel’s representations that Mr.

Flynn was prepared to continue his cooperation in the criminal

8 case in the Eastern District of Virginia. Id. at 47-48. The

trial in that case was scheduled to begin in July 2019. See

Joint Status Report, ECF No. 71 at 1; see also Status Hr’g Tr.

(June 24, 2019), ECF No. 94 at 5-6. In June 2019, Mr. Flynn

retained new counsel. See Min. Order (June 14, 2019). Mr. Flynn

did not testify at the trial in the Eastern District of

Virginia. See, e.g., Min. Order (July 9, 2019); Gov’t’s Resp. to

Order of the Court, ECF No. 97 at 1-2; Def.’s Resp. to Order of

the Court, ECF No. 98 at 1-11; Def.’s Suppl. Status Report, ECF

No. 121 at 1.

Thereafter, in August 2019 and October 2019, respectively,

Mr. Flynn filed motions to compel the production of certain

materials pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and

the Court’s Standing Brady Order. See generally Def.’s Br. in

Supp. of Def.’s Mot. to Compel Produc. of Brady Material & Mot.

for Order to Show Cause, ECF No. 109; Def.’s Redacted Mot. to

Compel & Mot. for Order to Show Cause, ECF No. 111; Def.’s

Sealed Mot. to Compel Produc. of Brady Material, ECF No. 112;

Def.’s Suppl., ECF No. 116; Def.’s Mot. to Compel Newly

Discovered Brady Evid., ECF No. 124. In these motions, Mr. Flynn

asserted his innocence for the first time in this case, alleged

prosecutorial misconduct, and sought dismissal. In December

2019, the Court issued a Memorandum Opinion and separate Order

denying Mr. Flynn’s Brady motions, finding that Mr. Flynn failed

9 to establish a single Brady violation, and holding that Mr.

Flynn’s false statements to the FBI were material within the

meaning of 18 U.S.C. § 1001(a) for the purpose of resolving

those motions. See Order, ECF No. 143; Mem. Op., ECF No. 144 at

53, 92.

As the Court and the parties prepared to proceed with

sentencing, in January 2020, Mr. Flynn moved to withdraw his

guilty plea. See Mot. Withdraw Guilty Plea, ECF No. 151; Suppl.

Mot. Withdraw Guilty Plea, ECF No. 160-2. On January 29, 2020,

Mr. Flynn filed a motion to dismiss for alleged egregious

government misconduct and in the interest of justice. See Mot.

Dismiss Case Egregious Gov’t Misconduct, ECF No. 162. In

February 2020, the government opposed Mr. Flynn’s motion to

dismiss, stating that Mr. Flynn “relies on allegations that do

not pertain to his case, that the Court already rejected, and

that have no relevance to his false statements to the FBI on

January 24, 2017.” Gov’t’s Response Def.’s Mot. Dismiss, ECF No.

169 at 11. The government did not file a response to Mr. Flynn’s

motions to withdraw his guilty pleas due to its incomplete

review of Mr. Flynn’s former counsel’s productions relevant to

Mr. Flynn’s claims of ineffective assistance of counsel, as well

as a dispute between Mr. Flynn and his former counsel. See Mot.

Continue Briefing, ECF No. 165; see also Min. Order (Feb. 10,

2020).

10 C. The Government’s Motion To Dismiss

On May 7, 2020, the government filed a motion to dismiss

the criminal information against Mr. Flynn with prejudice

pursuant to Federal Rule of Criminal Procedure 48(a). See

Gov’t’s Mot. Dismiss, ECF No. 198 at 12. For the first time in

this case, the government claimed that: (1) Mr. Flynn’s false

statements to the FBI agents were not “material” to any

investigation; (2) the government is doubtful that it could

prove the falsity of Mr. Flynn’s statements; and (3) the

government has no “substantial federal interest in penalizing a

defendant for a crime that it is not satisfied occurred and that

it does not believe it can prove beyond a reasonable doubt.” Id.

at 1-2.

On the same day, and with the consent of the government,

Mr. Flynn filed a motion to withdraw all of his pending motions

without prejudice. See id. at 10 n.3; Michael Flynn’s Mot.

Withdraw Pending Mots., ECF No. 199. Mr. Flynn also filed a

notice of consent to the government’s Rule 48(a) motion on May

12, 2020, demanding the immediate dismissal of this case with

prejudice. See Michael Flynn’s Consent Gov’t’s Mot. Dismiss, ECF

No. 202. On May 13, 2020, the Court appointed John Gleeson (“Mr.

Gleeson”) as amicus curiae to present arguments in opposition to

the government’s Rule 48(a) motion and to address whether Mr.

Flynn should be held in criminal contempt for perjury pursuant

11 to 18 U.S.C. § 401; Federal Rule of Criminal Procedure 42; the

Court’s inherent authority; and any other applicable statutes,

rules, or controlling law. 3 See Order Appointing Amicus Curiae,

ECF No. 205. 4 On May 19, 2020, the Court set a briefing schedule

and scheduled oral argument for July 16, 2020, adding that the

order was subject to a motion for reconsideration, for good

cause shown. See Min. Order (May 19, 2020). 5 Thereafter, Mr.

Gleeson filed his brief on June 10, 2020. See Amicus Br., ECF

No. 225. Mr. Flynn filed his response and two supplemental

responses, and the government filed its response. See Gov’t’s

Reply, ECF No. 227; Mem. Opp’n, ECF No. 228; Suppl., ECF No.

231; Suppl., ECF No. 237. Mr. Gleeson filed his reply brief on

September 11, 2020. See Amicus Reply Br., ECF No. 243.

3 The Court is persuaded by the arguments presented that issuing an Order to Show Cause would amount to an atypical action and so does not address this issue in this Memorandum Opinion. 4 The Court appreciates the thorough, careful, and thoughtful

analysis provided by Court-appointed amicus curiae. 5 Pursuant to this schedule, the following amici submitted

briefs: Separation of Powers Scholars; National Association of Criminal Defense Lawyers; Former Federal Prosecutors and High- Ranking Department of Justice Officials; Opening Arguments Media, LLC; We Who Serve-VSO; Kamil Ekim Alptekin; Steady State and Former National Security Officials; Federal Practitioners; Chairman and Members of the Committee on the Judiciary, U.S. House of Representatives; Lawyers Defending American Democracy; Watergate Prosecutors; Citizens United, Citizens United Foundation, and Presidential Coalition, LLC; the States of Ohio, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Texas, Utah, and West Virginia; and Criminal Law Professors. The Court appreciates the perspectives expressed by amici. 12 D. Mr. Flynn’s Mandamus Petition

On the same day that the Court set the briefing schedule on

the government’s motion, Mr. Flynn filed an emergency petition

for a writ of mandamus in the United States Court of Appeals for

the District of Columbia Circuit (“D.C. Circuit”), seeking an

order to: (1) direct the Court to grant the government’s

unopposed Rule 48(a) motion; (2) vacate the Court’s Order

appointing amicus curiae; and (3) reassign the case to a

different district judge for any further proceedings. See Pet.

Writ Mandamus, In re Flynn, No. 20-5143 (D.C. Cir. May 19,

2020). Two days later, the D.C. Circuit ordered this Court to

file a response and invited the government, in its discretion,

to file a response. See Per Curiam Order, In re Flynn, No. 20-

5143 (D.C. Cir. May 21, 2020). The government and this Court

filed their responses on June 1, 2020. See Judge Sullivan

Response, In re Flynn, No. 20-5143 (D.C. Cir. June 1, 2020);

Gov’t’s Response, In re Flynn, No. 20-5143 (D.C. Cir. June 1,

On June 24, 2020, a divided panel of the D.C. Circuit

granted in part Mr. Flynn’s petition and directed the Court to

grant the government’s unopposed Rule 48(a) motion. In re Flynn,

961 F.3d 1215, 1223, 1227 (D.C. Cir. 2020). The panel majority

declined to reassign the case to a new judge, id. at 1223; and

vacated as moot the Order appointing Mr. Gleeson as amicus

13 curiae, id. at 1227. The Clerk of Court docketed the June 24,

2020 Order in this case. See USCA Order, ECF No. 233.

On July 9, 2020, this Court filed a petition for rehearing

en banc, see Pet. Reh’g En Banc, In re Flynn, No. 20-5143 (D.C.

Cir. June 9, 2020); to which both Mr. Flynn and the government

filed a response, Flynn Response, In re Flynn, No. 20-5143 (D.C.

Cir. June 20, 2020); Gov’t’s Response, In re Flynn, No. 20-5143

(D.C. Cir. June 20, 2020).

On July 30, 2020, the D.C. Circuit ordered the case to be

heard en banc based on a suggestion of a member of the court,

and vacated its June 24, 2020 order. See Per Curiam Order, In re

Flynn, No. 20-5143 (D.C. Cir. July 30, 2020); see also In re

Flynn, 973 F.3d 74, 77 n.1 (D.C. Cir. 2020). Following oral

argument, on August 31, 2020, the D.C. Circuit denied Mr.

Flynn’s petition for a writ of mandamus. The D.C. Circuit, per

curiam, denied Mr. Flynn’s requests to compel the immediate

grant of the government’s motion and to vacate the Court’s

appointment of amicus because Petitioner had not established

that he has “no other adequate means to attain the relief he

desires.” In re Flynn, 973 F.3d at 79. The D.C. Circuit also

declined to mandate that the case be reassigned to a different

district judge because Mr. Flynn had not established a clear and

indisputable right to reassignment. Id. at 78, 82. The D.C.

Circuit further held that the case is not moot. Id. at 78 n.2.

14 E. Resumption Of Hearing On The Government’s Motion To Dismiss

Following the D.C. Circuit’s denial of Mr. Flynn’s mandamus

petition and pursuant to this Court’s September 1, 2020 Minute

Order, the parties filed a joint status report proposing

deadlines for further briefing on the government’s Rule 48(a)

motion, as well as proposed dates for a hearing on the motion.

See Joint Status Report, ECF No. 238. The parties also agreed

that the Court need not wait until the D.C. Circuit’s Order

denying mandamus relief became effective on September 21, 2020 —

21 days after its issuance, pursuant to Circuit Rule 41(a)(3) —

to proceed with briefing. Id. at 2.

In accordance with the parties’ proposed hearing date and

briefing schedule, which the Court granted, see Min. Order

(Sept. 4, 2020), Mr. Gleeson filed his reply brief on September

11, 2020, see Amicus Reply Br., ECF No. 243. The government

filed a supplement, see Gov’t’s Suppl., ECF No. 249; and Mr.

Flynn filed three supplements, see Suppl., ECF No. 248; Suppl.,

ECF No. 251; Suppl., ECF No. 257. The Court heard oral argument

on the government’s Rule 48(a) motion on September 29, 2020.

Following the motion hearing, Mr. Flynn filed a supplement in

support of the government’s Rule 48(a) motion, see Suppl., ECF

No. 264; and Mr. Gleeson filed a supplement to his briefing, see

Amicus Suppl., ECF No. 265. Mr. Flynn also filed a motion for

15 recusal and other relief. See Mot. for Recusal, ECF No. 261. In

that motion Mr. Flynn requested, among other things, that the

Court grant the government’s motion to dismiss pursuant to Rule

48(a) and that, upon dismissal of the case, the Court recuse

itself from further proceedings. After the Court dismisses the

case as moot pursuant to the presidential pardon, the Court will

deny the motion for recusal as moot.

D. The President Pardons Mr. Flynn

On November 25, 2020, President Trump granted Mr. Flynn a

“full and unconditional pardon” for: (1) “the charge of making

false statements to Federal investigators,” in violation of 18

U.S.C. § 1001, as charged in the Information in this case; (2)

“any and all possible offenses arising from the facts set forth

in the Information and Statement of Offense” filed in this case

“or that might arise, or be charged, claimed, or asserted, in

connection with the proceedings” in this case; (3) “any and all

possible offenses within the investigatory authority or

jurisdiction of the Special Counsel appointed on May 17, 2017,

including the initial Appointment Order No. 3915-2017 and

subsequent memoranda regarding the Special Counsel’s

investigatory authority”; and (4) “any and all possible offenses

arising out of facts and circumstances known to, identified by,

or in any manner related to the investigation of the Special

Counsel, including, but not limited to, any grand jury

16 proceedings” in this District or in the United States District

Court for the Eastern District of Virginia. Ex. 1 to Consent

Mot. Dismiss, ECF No. 308-1 at 1; see also Donald Trump

(@realDonaldTrump), Twitter (Nov. 25, 2020, 4:08 PM),

https://twitter.com/realDonaldTrump/status/1331706255212228608. 6

Mr. Flynn accepted the pardon, and Mr. Flynn and the

government subsequently moved to dismiss this case as moot. See

Consent Mot. Dismiss, ECF No. 308 at 2.

II. Legal Standards And Analyses

A. Federal Rule Of Criminal Procedure Rule 48(a)

1. The Court Has Discretion To Review The Unopposed Rule 48(a) Motion

Rule 48(a) provides that the “government may, with leave of

court, dismiss an indictment, information, or complaint.” Fed.

R. Crim. P. 48(a). Based on its terms, the “leave of court”

requirement “obviously vest[s] some discretion in the court.”

Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977). As the

D.C. Circuit has recognized, the “requirement of judicial leave

. . . gives the court a role in dismissals following

indictment.” United States v. Ammidown, 497 F.2d 615, 620-21

6 The Court takes judicial notice of President Trump’s tweet as the veracity of this statement “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017), vacated on other grounds, 138 S. Ct. 377 (2017). 17 (D.C. Cir. 1973). The government, however, casts doubt on the

authority of courts to review a Rule 48(a) motion to dismiss

when the defendant in the case does not oppose the motion. The

government argues that the rule “ordinarily allows a court to

review a motion to dismiss only to protect the interests of the

defendant.” Gov’t’s Reply, ECF No. 227 at 17. Yet the text and

history of Rule 48(a), as well as precedent in this and other

circuits, demonstrate that courts have the authority to review

unopposed Rule 48(a) motions as well.

“[T]he history of the Rule belies the notion that its only

scope and purpose is the protection of the defendant.” United

States v. Cowan, 524 F.2d 504, 512 (5th Cir. 1975). Before Rule

48(a)’s passage in 1944, “federal prosecutors wielded the power

to drop criminal charges,” or enter a nolle prosequi, “at will.”

See Thomas Ward Frampton, Why Do Rule 48(a) Dismissals Require

“Leave of Court”?, 73 Stan. L. Rev. Online 28, 30 (2020).

However, the perception that prosecutors were seeking dismissals

for politically well-connected defendants led some judges to

“feel complicit in dealings they deemed corrupt.” Id.; see,

e.g., United States v. Woody, 2 F.2d 262, 262-63 (D. Mont. 1924)

(finding that the prosecution had moved to dismiss the case for

reasons that “savor[ed] altogether too much of some variety of

prestige and influence (family, friends, or money) that too

often enables their possessors to violate the laws with

18 impunity; whereas persons lacking them must suffer all the

penalties,” but “reluctantly” dismissing the case because leave

of court was not required).

In 1941, the Supreme Court appointed an Advisory Committee

to create rules of criminal procedure, and the Committee took

into consideration such concerns. Frampton, Why Do Rule 48(a)

Dismissals Require “Leave of Court”?, supra, at 31-32. As

originally proposed by the Advisory Committee, Rule 48(a)

allowed a prosecutor to dismiss without leave of court but

required that the prosecutor state reasons for seeking

dismissal. Id. at 34. The Supreme Court, in response to the

draft rule, pointed out that the proposed “rule apparently gives

the Attorney General or the United States Attorney unqualified

authority to nolle pros a case without consent of the court,”

inquiring “[i]s this now the law, and in any event should it be

the law, any more than that the Government can confess error in

a criminal case without the consent of the court?” Id. at 34-35;

see also Cowan, 524 F.2d at 510. The Supreme Court, in its note,

directed the Committee’s attention to Young v. United States,

315 U.S. 257 (1942), which held that the fact that a prosecutor

confesses error in a case “does not relieve th[e] Court of the

performance of the judicial function.” 315 U.S. at 258. In the

opinion, the Supreme Court explained that “[t]he public interest

that a result be reached which promotes a well-ordered society

19 is foremost in every criminal proceeding. The interest is

entrusted to our consideration and protection as well as that of

the enforcing officers.” Id. at 259.

Despite the Supreme Court’s concerns, the Advisory

Committee’s final draft of Rule 48(a) again required only that

prosecutors submit a statement of reasons for dismissal. See

Frampton, Why Do Rule 48(a) Dismissals Require “Leave of

Court”?, supra, at 36-37. However, in promulgating the rule, the

Supreme Court deleted this requirement and added the requirement

that the prosecutor obtain leave of court. Id. at 37; see also

Ammidown, 497 F.2d at 620. In so doing, the Court made it

“manifestly clear that [it] intended to clothe the federal

courts with a discretion broad enough to protect the public

interest in the fair administration of criminal justice.” Cowan,

524 F.2d at 512.

This Circuit’s precedent is consistent with this history.

For example, in Ammidown, the D.C. Circuit acknowledged that

Rule 48(a) “gives the court a role” when “the defendant concurs

in the dismissal but the court is concerned whether the action

sufficiently protects the public.” 497 F.2d at 620. The D.C.

Circuit explained that courts carry out this role in such a

situation “to prevent abuse of the uncontrolled power of

dismissal previously enjoyed by prosecutors.” Id. (citation

omitted). Despite this language in Ammidown, however, the

20 government relies on United States v. Fokker Services B.V., 818

F.3d 733 (D.C. Cir. 2016), to argue that judicial intervention

is warranted only when the defendant objects to dismissal

because “the ‘principal object of the leave of court

requirement’ has been understood to be a narrow one—‘to protect

a defendant against prosecutorial harassment.’” Gov’t’s Reply,

ECF No. 227 at 20-21 (quoting Fokker, 818 F.3d at 742).

But Fokker does not address the Court’s authority to

consider an unopposed Rule 48(a) motion; it involved a deferred

prosecution agreement rather than a guilty plea. Fokker, 818

F.3d at 737. Fokker also does not suggest that courts may only

review opposed Rule 48(a) motions for prosecutorial harassment—

the case simply quotes language from Rinaldi, stating that

preventing harassment is the principal object of the rule. Id.

at 742 (quoting Rinaldi, 434 U.S. at 29 n.15).

Furthermore, the Court’s authority to consider the

unopposed Rule 48(a) motion here is not contrary to the Supreme

Court’s decision in Rinaldi. In Rinaldi, the Court reviewed an

agreement between the defendant and government to dismiss an

indictment based on the government’s violation of a federal

policy precluding multiple prosecutions for the same act. 434

U.S. at 24-25. The Supreme Court, in a footnote, stated:

The words “leave of court” were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court,

21 the circumstances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the “leave of court” requirement is apparently to protect a defendant against prosecutorial harassment, e. g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection. . . . But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest. See United States v. Cowan, 524 F.2d 504 (CA5 1975); United States v. Ammidown, 162 U.S. App. D.C. 28, 33, 497 F.2d 615, 620 (1973). It is unnecessary to decide whether the court has discretion under these circumstances, since, even assuming it does, the result in this case remains the same.

Id. at 29 n.15. Significantly, the Rinaldi court thus left this

question open, while also recognizing that courts, including the

D.C. Circuit, have reviewed unopposed Rule 48(a) motions. Id.;

see also Ammidown, 497 F.2d at 620 (noting that the “primary

concern, at least as discerned by subsequent decisions of other

federal courts, was that of protecting a defendant from

harassment,” but nonetheless finding that the court has a role

in reviewing unopposed Rule 48(a) motions).

At the September 29, 2020 motion hearing, the government

emphasized a different aspect of its argument. It conceded that

the Court should not act as a rubber stamp and that it has a

role to play when presented with an unopposed Rule 48(a) motion.

Hr’g Tr., ECF No. 266 at 40:9-12. But, in the government’s view,

22 this role is limited to determining whether “the decision to

dismiss is the considered view, the authoritative view of the

Executive Branch as a whole,” id.; rather than being the “rogue”

decision of an individual prosecutor, id. at 99:16-23. 7 The

government argued that this standard appropriately reconciles

the concerns about favoritism and pretext that led to the “leave

of court” language in the Rule with the separation of powers

principal that “the Executive Branch has exclusive authority and

absolute discretion to decide whether to prosecute a case.”

United States v. Nixon, 418 U.S. 683, 693 (1974) (citation

omitted); see also Fokker, 818 F.3d at 742 (“[D]ecisions to

dismiss pending charges . . . lie squarely within the ken of

prosecutorial discretion.”). The Court is not persuaded by the

government’s argument, however, because it fails to acknowledge

the possibility that the “considered view of the Executive

Branch as a whole” could be contrary to the public interest.

7 At oral argument during the en banc mandamus proceedings, the government took the remarkable position that even if, hypothetically, it was undisputed that the Attorney General of the United States accepted a bribe in exchange for dismissing a case, a district court would have no authority under Rule 48(a) to deny the government’s motion once the court ascertained that the government stood by its decision to dismiss the case. Oral Argument at 1:53, In re Flynn, No. 20-5143 (D.C. Cir. Aug. 11, 2020), https://www.cadc.uscourts.gov/recordings/recordings.nsf/DocsByRD ate?OpenView&count=100&SKey=202008. 23 Accordingly, the Court is persuaded that it has discretion

to consider the unopposed Rule 48(a) motion before it.

2. The Court May Review Rule 48(a) Motions For Deficient Reasoning Or Prosecutorial Abuse

While courts have a role in considering Rule 48(a) motions,

they are limited to narrow circumstances in which they may

exercise their discretion in denying leave to dismiss. See

Fokker, 818 F.3d at 742. After all, “decisions to dismiss

pending criminal charges . . . lie squarely within the ken of

prosecutorial discretion” and “at the core of the Executive’s

duty to see to the faithful execution of the laws.” Id. at 741-

42 (citations omitted). But, as explained above, this Circuit’s

precedent does not hold that Rule 48(a) confers unqualified

power or discretion on the Executive Branch. See id. at 741-42

(explaining that the “presumption of regularity” applies to

prosecutorial decisions only in the “absence of clear evidence

to the contrary”); see also Cowan, 524 F.2d at 513 (stating that

the “leave of court” phrase “was intended to modify and

condition the absolute power of the Executive, consistently with

the Framer’s concept of Separation of Powers, by erecting a

check on the abuse of Executive prerogatives”).

Instead, consistent with our system of checks and balances,

courts are tasked with making their own determination on whether

dismissal would be in the “public interest,” Rinaldi, 434 U.S.

24 at 29 n.15; in order to uphold the “crucial” responsibility of

“maintaining [the] public perception of fairness and integrity

in the justice system,” Rosales-Mireles v. United States, 138 S.

Ct. 1897, 1907 (2018); see also Mistretta v. United States, 488

U.S. 361, 407 (1989) (“The legitimacy of the Judicial Branch

ultimately depends on its reputation for impartiality and

nonpartisanship.”). The court’s role is not “to serve merely as

a rubber stamp for the prosecutor’s decision,” even when “the

defendant concurs in the dismissal.” Ammidown, 497 F.2d at 620,

622. Rather, it is the court’s “duty to exercise a discretion

for the protection of the public interest.” Cowan, 524 F.2d at

511. The trial court therefore conducts an “examination of the

record” to ensure that the government’s “efforts to terminate

the prosecution [are not] tainted with impropriety.” Rinaldi,

434 U.S. at 30.

With the above principles in mind, in response to the

government’s motion to dismiss under Rule 48(a), the Court holds

that a judge may deny an unopposed Rule 48(a) motion if, after

an examination of the record, (1) she is not “satisfied that the

reasons advanced for the proposed dismissal are substantial”; or

(2) she finds that the prosecutor has otherwise “abused his

discretion.” Ammidown, 497 F.2d at 620-22.

First, in exercising its role pursuant to Rule 48(a), “the

court will not be content with a mere conclusory statement by

25 the prosecutor that dismissal is in the public interest, but

will require a statement of reasons and the underlying factual

basis.” Id. at 620. Rule 48(a) “contemplates exposure of the

reasons for dismissal ‘in order to prevent abuse of the

uncontrolled power of dismissal previously enjoyed by

prosecutors,’ and in pursuance of this purpose ‘to gain the

Court’s favorable discretion, it should be satisfied that the

reasons advanced for the proposed dismissal are substantial.’”

Id. “Thus, to honor the purpose of the rule, the trial court at

the very least must know the prosecutor’s reasons for seeking to

dismiss the indictment and the facts underlying the prosecutor’s

decision.” United States v. Derr, 726 F.2d 617, 619 (10th Cir.

1984); see also United States v. Greater Blouse, Skirt &

Neckwear Contractors Ass’n, 228 F. Supp. 483, 486 (S.D.N.Y.

1964) (“[T]o gain the Court’s favorable discretion, it should be

satisfied that the reasons advanced for the proposed dismissal

are substantial and the real grounds upon which the application

is based.”).

Second, a court may deny a Rule 48(a) motion upon a finding

of abuse of prosecutorial discretion where dismissal would be

“contrary to the public interest.” See In re Richards, 213 F.3d

773, 787 (3d Cir. 2000). In conducting this analysis, the court

determines whether the government’s “efforts to terminate the

prosecution [are] tainted with impropriety.” Rinaldi, 434 U.S.

26 at 30. However, courts must be mindful not to “second-guess the

underlying charging decisions” or “impose [their] own views

about the adequacy of the underlying criminal charges” because

“their conception of the public interest differs from that of

the prosecuting attorney.” Fokker, 818 F.3d at 744-45 (citations

omitted). Examples of prosecutorial impropriety would include

where dismissal “does not serve due and legitimate prosecutorial

interests,” Ammidown, 497 F.2d at 622; where dismissal “was a

sham or a deception,” Cowan, 524 F.2d at 514; and where the

prosecutor’s dismissal was based on “acceptance of a bribe,

personal dislike of the victim, and dissatisfaction with the

jury impaneled,” United States v. Smith, 55 F.3d 157, 159 (4th

Cir. 1995). In addition, as indicated by the history of Rule

48(a), the corrupt dismissal of politically well-connected

individuals would also constitute an abuse of discretion. See

Woody, 2 F.2d at 262.

3. Whether To Deny Leave In This Case Is A Close Question, But Is Mooted By Mr. Flynn’s Acceptance Of The President’s Pardon

As an initial matter, the Court does not find that the

government’s submission is a mere conclusory statement of the

reasons for dismissal, and so denial of leave would not be

warranted on this ground. The majority of the cases finding

denial of leave appropriate based on “conclusory statements”

most often involve motions providing only one or two sentences

27 referring generally to the “public interest.” See, e.g., Derr,

726 F.2d at 619 (affirming denial of leave to dismiss when the

government offered no reasons for dismissal other than that it

would “best meet the ends of justice”). Here, on the other hand,

the government has sought to justify its decision to seek

dismissal by providing several reasons and facts underlying its

decision. See id.

However, while not conclusory, many of the government’s

reasons for why it has decided to reverse course and seek

dismissal in this case appear pretextual, particularly in view

of the surrounding circumstances. For example, Mr. Flynn was

serving as an adviser to President Trump’s transition team

during the events that gave rise to the conviction here, and, as

this case has progressed, President Trump has not hidden the

extent of his interest in this case. According to Mr. Gleeson,

between March 2017 and June 2020, President Trump tweeted or

retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF

No. 225 at 66. This commentary has “made clear that the

President has been closely following the proceedings, is

personally invested in ensuring that [Mr.] Flynn’s prosecution

ends, and has deep animosity toward those who investigated and

prosecuted [Mr.] Flynn.” Id.

At the September 29, 2020 motion hearing, Mr. Flynn’s

counsel, in response to the Court’s question, stated that she

28 had, within weeks of the proceeding, provided the President with

a brief update on the status of the litigation. Hr’g Tr., ECF

No. 266 at 56:18-20. Counsel further stated that she requested

that the President not issue a pardon. Id. at 56:23-24. However,

the President has now pardoned Mr. Flynn for the actions that

instigated this case, among other things. Ex. 1 to Consent Mot.

Dismiss, ECF No. 308-1 at 1. And simultaneous to the President’s

“running commentary,” many of the President’s remarks have also

been viewed as suggesting a breakdown in the “traditional

independence of the Justice Department from the President.” See,

e.g., Amicus Br., ECF No. 225 at 67-68; id. at 68 (quoting

Excerpts from Trump’s Interview with the Times, N.Y. Times (Dec.

28, 2017), https://www.nytimes.com/2017/12/28/us/politics/trump-

interview-excerpts.html) (reporting President Trump’s statement

that he enjoys the “absolute right to do what I want to do with

the Justice Department”).

Given this context, the new legal positions the government

took in its Rule 48(a) motion and at the motion hearing raise

questions regarding its motives in moving to dismiss. The

government advances two primary reasons 8 justifying dismissing

8 The government also asserted that dismissal is warranted because “the interests of justice do not support continuing the prosecution.” Gov’t’s Reply, ECF No. 227 at 9. Because the majority of the government’s apparent reasons underlying this rationale “are just the same facts that are legally irrelevant to its materiality and falsity assertions,” Amicus Reply Br., 29 the case based on its assessment of the strength of the case:

(1) it would be difficult to prove the materiality of Mr.

Flynn’s false statements beyond a reasonable doubt; and (2) it

would be difficult to prove the falsity of those statements

beyond a reasonable doubt. See Gov’t’s Reply, ECF No. 227 at 31.

As explained below, the Court finds both stated rationales

dubious to say the least, arguably overcoming the strong

presumption of regularity that usually attaches to prosecutorial

decisions.

a. Materiality

The government’s first rationale is that it believes that

Mr. Flynn’s false “statements were not ‘material’ to any viable

counterintelligence investigation—or any investigation for that

matter—initiated by the FBI.” Gov’t’s Mot. Dismiss, ECF No. 198

at 13; see also Gov’t’s Reply, ECF No. 227 at 34-35. In making

its arguments, however, the government relies on a newly-minted

definition of “materiality” that is more circumscribed than the

standard in this Circuit. The government describes the

materiality threshold as requiring more than “mere ‘relevance’”;

rather, the false statement must have “probative weight” and be

“reasonably likely to influence the tribunal in making a

determination required to be made.” Gov’t’s Mot. Dismiss, ECF

ECF No. 243 at 24, the Court does not address this argument separately. 30 No. 198 at 12-13 (quoting Weinstock v. United States, 231 F.2d

699, 701 (D.C. Cir. 1956)). Therefore, “[t]he materiality

threshold thus ensures that misstatements to investigators are

criminalized only when linked to the particular ‘subject of

[their] investigation.’” Id. at 13 (quoting United States v.

Kim, 808 F. Supp. 2d 44, 59 (D.D.C. 2011)).

However, that is not the law. Rather, “[a] lie influencing

the possibility that an investigation might commence stands in

no better posture under § 1001 than a lie distorting an

investigation already in progress.” See United States v. Hansen,

772 F.2d 940, 949-50 (D.C. Cir. 1985) (“Application of § 1001

does not require judges to function as amateur sleuths,

inquiring whether information specifically requested and

unquestionably relevant to the department’s or agency’s charge

would really be enough to alert a reasonably clever investigator

that wrongdoing was afoot.”). Instead, the standard asks only

whether Mr. Flynn’s statements were “capable of affecting” the

“general function” of the FBI when it interviewed him. United

States v. Verrusio, 762 F.3d 1, 21 (D.C. Cir. 2014). As the D.C.

Circuit held in United States v. Moore, 612 F.3d 698 (D.C. Cir.

2010), “a statement is material if it has a natural tendency to

influence, or is capable of influencing, either a discrete

decision or any other function of the agency to which it was

addressed.” 612 F.3d at 701 (emphasis added); see also United

31 States v. Rodgers, 466 U.S. 475, 479 (1984) (calling the

application of 18 U.S.C. § 1001 “sweeping”). “Proof of actual

reliance on the statement is not required; the Government need

only make a reasonable showing of its potential effects.” United

States v. Diggs, 613 F.2d 988, 999 (D.C. Cir. 1979); see Moore,

612 F.3d at 702 (holding that defendant’s false statement “was

capable of affecting the Postal Service’s general function of

tracking packages and identifying the recipients of packages

entrusted to it” and defendant’s false information “could have

impeded the ability of the Postal Service to investigate the

trafficking of narcotics through the mails”).

Given the materiality threshold’s expansive scope, the

government’s new use of the narrowed definition of “materiality”

is perplexing, particularly given that the government has

previously argued in this case that the materiality standard

required only that a statement have a “natural tendency to

influence, or [be] capable of influencing.” See Gov’t’s Surreply

Def.’s Reply Support Mot. Compel, ECF No. 132 at 10-11. The

government, for its part, offers no response as to why it relies

on this new, more stringent definition. Nor does the government

direct the Court’s attention to any other case in which it has

advanced this highly-constrained interpretation of materiality

as applied to a false statements case.

32 Notably, during the September 29, 2020 motion hearing, the

government seemed to suggest that, when moving for dismissal of

an action pursuant to Rule 48(a), the government need not refer

to the correct materiality standard at all when determining

whether a false statement is “material.” See Hr’g Tr., ECF No.

266 at 78:21-79:3 (“[W]hen we move to dismiss, the question in

our mind is not what is the legal standard of materiality for

whether the evidence here will be sufficient to sustain a

conviction on appeal. The question is whether we, the Department

of Justice, think this evidence is material . . . .”). In view

of the government’s previous argument in this case that Mr.

Flynn’s false statements were “absolutely material” because his

false statements “went to the heart” of the FBI’s investigation,

the government’s about-face, without explanation, raises

concerns about the regularity of its decision-making process.

Furthermore, Rule 48(a)’s “leave of court” standard

requires the court to consider the objective reasonableness of

the government’s justification for seeking dismissal. Where, as

here, the government justifies its motion by ignoring applicable

law to now question the strength of its case, substantial doubt

arises about the government’s stated reasons for seeking

dismissal.

Several of the government’s arguments regarding materiality

also appear to be irrelevant or to directly contradict previous

33 statements the government has made in this case. For example, as

Mr. Gleeson points out, many of the “bureaucratic formalities”

the government asserts reveal the “confusion and disagreement

about the purpose and legitimacy of the interview and its

investigative basis”—such as the drafting of the FBI’s Closing

Communication or internal conversations between FBI and

Department of Justice officials regarding whether to notify the

Trump administration of Mr. Flynn’s false statements—are not

relevant to proving materiality. See Amicus Reply Br., ECF No.

243 at 19. Nor is it relevant whether Mr. Flynn was an “agent of

Russia” or guilty of some other crime at the time he made the

false statements. Furthermore, while the government argues that,

“since the time of [Mr. Flynn’s guilty] plea, extensive

impeaching materials had emerged about key witnesses the

government would need to prove its case,” Gov’t’s Reply, ECF No.

227 at 35; the government had been aware of much of this

evidence since early on in the case, see, e.g., Gov’t’s Response

Def.’s Mot. Compel, ECF No. 122 at 8-9. Under Ammidown, the

Court must be satisfied that the government undertook a

“considered judgment,” 497 F.2d at 620; and asserting a factual

basis that is largely irrelevant to meeting any legal threshold

likely does not meet this standard.

34 b. Falsity

The government’s second rationale is that it “does not

believe it could prove that Mr. Flynn knowingly and willfully

made a false statement beyond a reasonable doubt.” Gov’t’s Mot.

Dismiss, ECF No. 198 at 18; see also Gov’t’s Reply, ECF No. 227

at 38-39. To support this rationale, the government initially

pointed to the fact, which was known at the time Mr. Flynn pled

guilty, that the FBI agents who interviewed him did not think he

was lying, and it also noted the “equivocal” or “indirect”

nature of Mr. Flynn’s responses. Gov’t’s Mot. Dismiss, ECF No.

198 at 18. The government further contends that evidentiary

problems have “emerged” including: (1) “inconsistent FBI records

as to the actual questions and statements made,” id. at 19; (2)

“Director [James] Comey’s own sentiment that the case was a

‘close one,’” id. (quoting Ex. 5 to Gov’t’s Mot. Dismiss, ECF

No. 198); and (3) “substantial impeaching materials on the key

witnesses,” 9 Gov’t’s Reply, ECF No. 227 at 39. At the September

29, 2020 motion hearing, the government raised two more points:

(4) evidence that Mr. Flynn had a faulty memory, Hr’g Tr., ECF

No. 266 at 44:8, 155:5; and (5) the notes of the FBI’s Assistant

Director for Counter Intelligence as to the FBI interview’s

goal, id. at 83:11-20.

9 The Court has addressed this rationale in the materiality section supra. 35 The Court is mindful that it is “particularly ill-suited”

to reviewing the strength of the case. Wayte v. United States,

470 U.S. 598, 607 (1985); see also In re United States, 345 F.3d

454, 455 (7th Cir. 2003) (finding that the trial court’s belief

that “the evidence was strong and conviction extremely likely”

was an inappropriate basis to deny leave). That said, the role

of the Court is to conduct an “examination of the record” in

order to ensure that the government’s “efforts to terminate the

prosecution [are not] tainted with impropriety.” Rinaldi, 434

U.S. at 30. Moreover, the Court examines the factual basis

underlying the government’s reasons because not doing so would

amount to rubber stamping the government’s decision, contrary to

the requirement of Rule 48(a). Here, the government has invited

the Court’s examination of its evidence. See Hr’g Tr., ECF No.

266 at 42:22-43:1 (stating that “we’re completely unafraid here

to address . . . the specifics as to why we thought we needed to

dismiss this case. . . . we’d be happy to go through the

evidence.”). Accordingly, the Court will briefly address some of

the evidence the government points to as it is troubled by the

apparently pretextual nature of certain aspects of the

government’s ever-evolving justifications. See Foster v.

Chatman, 136 S. Ct. 1737, 1751 (2016) (“[T]he prosecution’s

principal reasons for the strike shifted over time, suggesting

that those reasons may be pretextual.”).

36 As an initial matter, whether or not the FBI agents thought

Mr. Flynn was lying is irrelevant in a false statements case.

See Brogan v. United States, 522 U.S. 398, 402 (1998). And the

government has not explained how evidence that the government

previously stated was “consistent and clear,” Gov’t’s Surreply,

ECF No. 132 at 4-5; suddenly became “equivocal” or “indirect.”

With regard to the “inconsistent records” rationale, the

government has not pointed to evidence in the record in this

case that contradicts the FD-302 that memorialized the FBI

agents’ interview with Mr. Flynn. Furthermore, the government’s

reliance on Director Comey’s opinion about whether Mr. Flynn

lied is suspect given that Director Comey was not present at the

interview and that there are valid questions regarding the

admissibility of his personal opinion.

With regard to Mr. Flynn’s alleged “faulty memory,” Mr.

Flynn is not just anyone; he was the National Security Advisor

to the President, clearly in a position of trust, who claimed

that he forgot, within less than a month, that he personally

asked for a favor from the Russian Ambassador that undermined

the policy of the sitting President prior to the President-Elect

taking office. With regard to the government’s concerns about

the Assistant Director for Counter Intelligence’s contemplating

the goal of the interview, an objective interpretation of the

notes in their entirety does not call into question the

37 legitimacy of the interview. Finally, and critically, under the

terms of Mr. Flynn’s cooperation agreement, the government could

have used his admissions at trial, see Plea Agreement, ECF No. 3

at 8 ¶ 11; but the government ignores this powerful evidence.

Again, under Ammidown, the Court must be satisfied that the

government undertook a “considered judgment.” 497 F.2d at 620.

Asserting factual bases that are irrelevant to the legal

standard, failing to explain the government’s disavowal of

evidence in the record in this case, citing evidence that lacks

probative value, failing to take into account the nature of Mr.

Flynn’s position and his responsibilities, and failing to

address powerful evidence available to the government likely do

not meet this standard.

Thus, the application of Rule 48(a) to the facts of this

case presents a close question. However, in view of the

President’s decision to pardon Mr. Flynn, Mr. Flynn’s acceptance

of the pardon, and for the reasons stated in the following

section, the appropriate resolution is to deny as moot the

government’s motion to dismiss pursuant to Rule 48(a).

B. The Presidential Pardon Power

Article II, Section 2, of the United States Constitution

provides that “[t]he President . . . shall have Power to grant

Reprieves and Pardons for Offenses against the United States,

except in Cases of Impeachment.” U.S. Const. art. II, § 2, cl.

38 1. Though the Constitution confers the pardoning power on the

President generally, it is well-established that “the judiciary

has served as the supreme interpreter of the scope of the

constitutional powers since Marbury v. Madison.” See William F.

Duker, The President’s Power to Pardon: A Constitutional

History, 18 Wm. & Mary L. Rev. 475, 506 (1977); see also Marbury

v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the

province and duty of the judicial department to say what the law

is.”). Thus, the Court looks to precedent to determine the

validity of presidential pardons.

Beginning with Marbury, the Supreme Court has long

suggested that the President’s power to pardon is largely

unqualified. While not specifically mentioning the power to

pardon, the Supreme Court in Marbury explained that, “[b]y the

[C]onstitution of the United States, the president is invested

with certain important political powers, in the exercise of

which he is to use his own discretion, and is accountable only

to his country in his political character, and to his own

conscience.” 5 U.S. at 165-66. The Supreme Court stated that in

such cases, “whatever opinion may be entertained of the manner

in which executive discretion may be used, still there exists,

and can exist, no power to control that discretion.” Id. at 166.

Because the power had been “entrusted to the executive, the

decision of the executive is conclusive.” Id. Thus, the Supreme

39 Court in Marbury laid the foundation for the view that the

President has a “general, unqualified grant of power to pardon

offenses against the United States.” The Laura, 114 U.S. 411,

413 (1885).

In view of the principles set out in Marbury, the Supreme

Court thereafter instructed that the President’s power to pardon

is “granted without limit.” United States v. Klein, 80 U.S. 128,

147 (1871); see also Ex parte Garland, 71 U.S. 333, 380 (1866)

(“This power of the President is not subject to legislative

control. Congress can neither limit the effect of his pardon,

nor exclude from its exercise any class of offenders.”). The

“executive can reprieve or pardon all offenses after their

commission, either before trial, during trial or after trial, by

individuals, or by classes, conditionally or absolutely, and

this without modification or regulation by Congress.” Ex parte

Grossman, 267 U.S. 87, 120 (1925) (emphasis added).

The pardon power, however, is not without limitations. For

example, a presidential pardon generally must be accepted to be

effective. See Burdick v. United States, 236 U.S. 79, 94 (1915);

but see Biddle v. Perovich, 274 U.S. 480, 486-87 (1927)

(finding, where defendant sought his release upon the grounds

that he had not accepted the commutation of his death sentence

to life imprisonment, that “the public welfare, not his consent,

determines what shall be done”). “Once accepted, a full and

40 absolute pardon ‘releases the wrongdoer from punishment and

restores the offender’s civil rights without qualification.’”

United States v. Arpaio, No. 16-cr-1012, 2017 WL 4839072, at *1

(D. Ariz. Oct. 19, 2017) (quoting Absolute Pardon, Black’s Law

Dictionary (10th ed. 2014)).

On the other hand, a pardon does not necessarily render

“innocent” a defendant of any alleged violation of the law.

Indeed, the Supreme Court has recognized that the acceptance of

a pardon implies a “confession” of guilt. See Burdick, 236 U.S.

at 94 (“[A pardon] carries an imputation of guilt; acceptance a

confession of it.”); see also United States v. Schaffer, 240

F.3d 35, 38 (D.C. Cir. 2001) (“[A]cceptance of a pardon may

imply a confession of guilt.” (citing In re North, 62 F.3d 1434,

1437 (D.C. Cir. 1994)). As Chief Justice Marshall wrote, “[a]

pardon is an act of grace, proceeding from the power intrusted

with the execution of the laws, which exempts the individual on

whom it is bestowed, from the punishment the law inflicts for a

crime he has committed.” United States v. Wilson, 32 U.S. 150,

150 (1833) (emphasis added). In other words, “a pardon does not

blot out guilt or expunge a judgment of conviction.” In re

North, 62 F.3d at 1437. Furthermore, a pardon cannot “erase a

judgment of conviction, or its underlying legal and factual

findings.” Arpaio, 2017 WL 4839072, at *1 (citing United States

v. Crowell, 374 F.3d 790, 794 (9th Cir. 2004)); but see

41 Schaffer, 240 F.3d at 38 (vacating “all opinions, judgments, and

verdicts of this court and the District Court” where “[f]inality

was never reached on the legal question of [the defendant’s]

guilt” (emphasis added)).

Here, the scope of the pardon is extraordinarily broad – it

applies not only to the false statements offense to which Mr.

Flynn twice pled guilty in this case, but also purports to apply

to “any and all possible offenses” that he might be charged with

in the future in relation to this case and Special Counsel

Mueller’s investigation. Ex. 1 to Consent Mot. Dismiss, ECF No.

308-1 at 1. However, the Court need only consider the pardon

insofar as it applies to the offense to which Mr. Flynn twice

pled guilty in this case. Mr. Flynn has accepted President

Trump’s “full and unconditional pardon.” See Consent Mot.

Dismiss, ECF No. 308 at 2. The history of the Constitution, its

structure, and the Supreme Court’s interpretation of the pardon

power make clear that President Trump’s decision to pardon Mr.

Flynn is a political decision, not a legal one. Because the law

recognizes the President’s political power to pardon, the

appropriate course is to dismiss this case as moot. However, the

pardon “does not, standing alone, render [Mr. Flynn] innocent of

the alleged violation” of 18 U.S.C. § 1001(a)(2). Schaffer, 240

F.3d at 38. Accordingly, in view of the Supreme Court’s

expansive view of the presidential pardon power, the Court

42 grants the consent motion to dismiss this case as moot. See,

e.g., id.

III. Conclusion

For the reasons stated above, the Court DENIES AS MOOT the

government’s motion to dismiss pursuant to Rule 48(a), ECF No.

198; and GRANTS the government’s consent motion, ECF No. 308,

based on the presidential pardon and DISMISSES this case AS

MOOT. An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 8, 2020