Judge in Michael Flynn case could surprise Bill Barr: legal expert

On Saturday, writing for Bloomberg Opinion, Harvard Law professor Noah Feldman argued that Attorney General William Barr's motion to dismiss the charges against President Donald Trump's ex-National Security Adviser Michael Flynn could still face one key roadblock: the judge himself.

"After you get past the initial shock of Barr once again making partisan criminal prosecution decisions while insisting that he’s doing the opposite, a larger question remains: Shouldn’t there be some kind of check on the executive branch’s capacity to make a guilty plea go away?" wrote Feldman. "The answer is yes, for extreme cases like this one. And on paper, there is."

"The federal judge in charge of the case must agree, too," wrote Feldman. "Ordinarily, that’s a pretty easy decision for a judge. But where a defendant has already admitted to the crime; the executive branch is dismissing charges against a former administration official; and the president encouraged the former FBI director to make the same case go away, that may be the one circumstance where the judge should take a close look at the question. And maybe, just maybe, it would be appropriate for the court to refuse the government’s dismissal."

The law on this subject, Feldman wrote, is pretty uncertain, however.

"Ordinarily, a dismissal, if one is sought by the prosecution, takes place before a guilty plea. And as Andrew Crespo, a criminal law expert who is my Harvard Law School colleague, pointed out to me, there isn’t much a court can do if the government wants to dismiss a case before trial," wrote Feldman. "Not so after a guilty plea has been entered. After all, the deed has already been done. The only thing left for the prosecutor to do is recommend a sentence. If the prosecution declined to recommend a criminal sentence, the judge could still pick a sentence under the federal sentencing guidelines."

"Then there’s the crucial fact that Flynn acknowledged his guilt," wrote Feldman. "When the crime was lying, and the government still acknowledges that the defendant in fact did lie, there is less reason to worry that the defendant has been railroaded. According to Barr and the Department of Justice, the changed circumstances are not that Flynn was telling the truth, but that the government is no longer confident that they could prove to a jury that the lie was about a matter 'material' to a possible criminal prosecution. The materiality standard is notoriously easy to meet in lying-to-the-FBI cases; the judge could safely make this determination for himself."

"The upshot is that the existing law creates a check on actions like the Justice Department’s current flip-flop," wrote Feldman. "This judicial check should be used sparingly. But it would be worth it for the judge here to take a long look at the circumstance of the government’s reversal before making up his mind."