Tax Return Fight Indicates Trump May Face State Criminal Charges

Manhattan District Attorney Cyrus Vance, Jr. appears close to obtaining president Trump’s tax records. Vance first subpoenaed the records about a year ago. Last month the U.S. Supreme Court rejected Trump’s claim that the subpoena should be rejected because the president is absolutely immune from state criminal investigations. Trump’s attorneys then filed a new complaint once again challenging the subpoena, claiming it is overbroad and was issued in bad faith. Vance has now moved to dismiss that complaint. The DA seems likely to prevail and ultimately get the records. And although it’s unlikely that anything contained in the returns will be made public before the election, Vance’s pleading filed last Monday suggests that Trump could be facing a range of New York state criminal charges if he leaves office in 2021.

Manhattan DA Cyrus Vance Jr.
Manhattan DA Cyrus Vance, Jr.

The Vance Subpoena and Trump’s Lawsuit

Vance’s office opened an investigation in the summer of 2018 into unspecified financial crimes by New York businesses and individuals. Initially, at least, it appeared the investigation was prompted by reports of “hush money” payments by Trump and/or his campaign to two women, Karen McDougal and Stormy Daniels, shortly before the 2016 presidential election. In August of 2018 Trump’s personal attorney, Michael Cohen, pleaded guilty to a campaign finance crime related to those payments. During his plea Cohen said he had made the payments at the direction of candidate Trump himself. Vance’s office apparently began an investigation into whether the payments, and how they were documented in corporate records, may have violated New York law.

In August of 2019 the prosecutors, acting on behalf of a grand jury, issued a subpoena for documents to Mazars USA, LLP, Trump’s personal accounting firm. The subpoena directed Mazars to produce financial records relating to Trump and his businesses, including copies of the president’s tax returns for the past eight years.

In September 2019 the president filed a lawsuit in federal district court in New York, seeking an injunction against Vance and Mazars to prevent enforcement of the subpoena. Trump claimed that under the U.S. Constitution a sitting president is absolutely immune from state criminal process. He also argued the subpoena was overbroad and that Vance was acting in bad faith and for political reasons. (Throughout the litigation Mazars has taken the position that the fight is between Vance and Trump and that Mazars stands ready to honor the subpoena if that’s how the courts rule.)

The district court judge rejected the president’s arguments. The judge found there was no basis for the president’s sweeping claim of immunity and that Mazars complying with the subpoena would not impair the president’s ability to fulfill his constitutional duties. The judge also rejected the president’s claims of overbreadth and bad faith.

The Second Circuit Court of Appeals affirmed the trial judge, finding that immunity was not constitutionally required. It noted that Trump had failed to identify any constitutional harm or interference with his duties because the subpoena, directed to Mazars, did not “require the President to do anything at all.” An appeal from the Second Circuit decision was fast-tracked to the U.S. Supreme Court.

Image of US Supreme Court

The Supreme Court Decision

On July 9, 2020, the U.S. Supreme Court, in an opinion by Chief Justice Roberts, also rejected Trump’s claims. Reaching back to an early dispute involving Aaron Burr and president Thomas Jefferson, the Court traced a long history of cases finding that presidents, like other citizens, are not above the law and may be subpoenaed to provide testimony or evidence. Although this was the first time the Court had confronted the question in the context of a state proceeding rather than a federal one, the Court concluded that did not compel a different result.

The Court was unanimous in rejecting Trump’s claim of absolute immunity. Trump argued that immunity was required because complying with such a subpoena would impermissibly distract him from fulfilling his constitutional duties. But the Court noted that it had already rejected immunity based on purported presidential distraction, most notably in the unanimous 1997 decision in Clinton v Jones that president Clinton was not immune from a civil suit based on actions before he took office. Similarly, the Court concluded, “two centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties.” The Court also rejected Trump’s claims that immunity was required in order to avoid the “stigma” of being under investigation and to prevent presidential harassment by state prosecutors.

The majority also rejected the alternative argument, advanced by the U.S. Solicitor General, that a subpoena directed at a sitting president should have to meet a higher standard of justification before it can be enforced. The Court noted these arguments were based primarily on cases involving Executive privilege. But such cases were not relevant here because this subpoena was directed at the president’s personal records. Requiring a higher standard, the Court held, would improperly “extend protection designed for official documents to the President’s private papers.”

Although the Court rejected the president’s claims, it did not leave Trump with no possible remedy. Given his constitutional position, the Court held, a president may challenge a particular subpoena as an improper attempt to influence or impede his performance of his official duties. And the president also has the remedies available to any person to challenge a grand jury subpoena, including arguing that the subpoena is unduly burdensome, overly broad, or based on bad faith. But any such claims were not part of the appeal to the Supreme Court.

The Court concluded:

Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.

The President’s New Complaint

The Supreme Court’s decision did not end the matter. With the case back in the trial court, the president quickly moved to bring some of the other challenges the Supreme Court said were still available. On July 27 the president filed a Second Amended Complaint, seeking once again to enjoin compliance with the subpoena. That complaint alleges, once again, that the subpoena is overbroad and that Vance is acting in bad faith.  Notably, the complaint does not raise any of the potential claims unique to the president that were identified by the Supreme Court; for example, that complying with this particular subpoena would influence or impede Trump’s performance of his presidential duties. Presumably the president’s attorney concluded such an argument would be futile because, as the Second Circuit noted, the subpoena to Mazars actually doesn’t require the president to do anything at all.

Vance’s Motion to Dismiss

This past Monday, Vance filed a motion to dismiss the Second Amended Complaint, arguing that the complaint does not state any grounds for relief. It claims the subpoena is overbroad or was brought in bad faith, but as Vance notes, the trial judge has already rejected those same arguments in the earlier proceedings. In short, according to Vance: nothing new here.

One section of Vance’s pleading attracted considerable attention. Concerning the claim that the subpoena is overbroad, Vance notes this claim depends on the assumption that the investigation is limited to the so-called “hush money” payments in 2016. But Vance says this is incorrect: “at the time the Mazars Subpoena was issued, there were public allegations of possible criminal activity at Plaintiff’s New York County-based Trump Organization dating back over a decade.” Vance notes that his office earlier filed a redacted declaration describing the full scope of the investigation, and that based on that declaration the court had already ruled the subpoena is not overbroad.

Vance’s pleading cites newspaper articles referring to allegations by Michael Cohen and others that Trump may have manipulated the values of his holdings when dealing with banks and insurance companies and may have engaged in other questionable financial practices. These allegations could potentially lead to New York state criminal charges for crimes such as bank fraud, insurance fraud, or tax fraud. That is why the subpoenaed records are relevant, even though they extend back much further than 2016.

The Standard for Challenging a Grand Jury Subpoena

The president is facing an uphill battle in challenging the grand jury subpoena. A properly issued grand jury subpoena is presumed to be reasonable. Because it is an investigative body, a grand jury is allowed to cast a wide net when gathering information about possible crimes. It may investigate based on news reports, anonymous tips, or other investigative leads that fall far short of establishing probable cause or actual criminality. As the Supreme Court held in the leading case of United States v. R. Enterprises, the government cannot be required to establish probable cause to justify a grand jury subpoena because the very purpose of the grand jury investigation is to determine, at the conclusion of that investigation, whether probable cause exists.

In his dissent in the Supreme Court case, Justice Alito noted how difficult it would be for the president to establish that Vance’s subpoena is improper: “In New York, a grand jury subpoena need not be supported by probable cause . . . and a party seeking to quash a subpoena must show that the documents sought ‘can have no conceivable relevance to any legitimate object of investigation.’” (citations omitted). But this standard is not unique to New York; in fact, this is the general law governing all grand jury subpoenas and basically mirrors the Supreme Court’s holding in R. Enterprises.

Grand jury secrecy makes it tough for any litigant to successfully argue that information sought by a subpoena could not possibly be relevant to the grand jury’s work. As Vance argues, the president can’t plausibly claim the subpoenaed materials are outside the scope of the grand jury’s investigation because he doesn’t know what the full scope of that investigation is – and isn’t entitled to know.

It’s possible that after reviewing the documents the grand jury will conclude that no charges are appropriate, or that it does not have jurisdiction over certain offenses, or that certain crimes are time-barred. But the recipient of a subpoena – including the president – generally cannot prevent the grand jury from even examining the documents it needs in order to reach such conclusions.

Under the law governing grand jury subpoenas, Vance should prevail and ultimately get the documents. How quickly that will happen depends on the almost certain further appeals by the president and how long it takes to get those resolved. If the trial judge rules in Vance’s favor, the court of appeals may be reluctant to grant a stay, which would mean Mazars would be free to comply and turn over the documents. That could potentially happen within the next month or so.

Stalling for Time

It seems pretty clear at this point that the primary purpose of this litigation by the president is to stall for time. As Vance notes, the president has already succeeded in delaying compliance with the subpoena for nearly a year. This has prevented the grand jury from potentially completing its work prior to the upcoming presidential election. Perhaps more significantly, delay creates the risk that the statute of limitations will expire as to some charges. As Vance argues: 

Every day that goes by is another day Plaintiff effectively achieves the ‘temporary absolute immunity’ that was rejected by this Court, the Court of Appeals, and the Supreme Court. Every such day also increases the prospect of a loss of evidence or expiration of limitations periods – the precise concerns that that the Supreme Court observed justified its rejection of Plaintiff’s immunity claim in the first place.  

When it comes to statutes of limitations, Vance may have some options. If he finds an ongoing conspiracy or other continuing offense, for example, then the statute of limitations will not start to run until the most recent act in furtherance of the conspiracy, even if other criminal acts involved are too old to be charged. But it’s undeniably true that delay hurts his investigation and that potential charges could be foreclosed.

What Happens When Vance Gets the Documents?

Assuming Vance prevails and gets the documents, the public shouldn’t expect to see the tax records any time soon, if at all. They will be protected by grand jury secrecy, and as the Supreme Court noted, improper disclosure of grand jury materials is punishable as a felony in New York. During the Supreme Court arguments Justice Alito suggested he believes there is some kind of a pipeline between the DA’s office and the New York Times and that a leak is virtually inevitable, but I don’t think we should expect that to happen. If there ultimately are indictments, then depending on the nature of the charges some of the information contained in the tax records could end up being revealed.

As far as timing, many have assumed that Vance, a Democrat, is politically motivated and will try to bring a case prior to the election in order to damage Trump. But even if that were his goal, things would have to move awfully fast. Vance’s office would have to complete all court battles over the subpoena, get the documents (which are undoubtedly voluminous), review them, complete any additional required investigation, and obtain indictments in just three months. That seems very unlikely to me.

Practicality aside, it would of course be improper for Vance to act based on political motives. And if he actually has a case, he’d be much better off waiting until after the election.  Any “October surprise” indictments, regardless of their merits, would be attacked and discredited as politically motivated. And if Trump leaves office in 2021, Vance could act at that time without facing any of the constitutional issues that would arise from a state prosecution of a sitting president. If a statute of limitations expiring before November is a concern, Vance could obtain sealed indictments and then wait to reveal them until after the election. He could even seek a waiver of the statute of limitations by the president, as is sometimes done during lengthy investigations.

The real significance of this subpoena battle lies not in how it might affect the election but in what happens after November if Trump is defeated. Vance’s filing demonstrates that Trump and his organization are in some real criminal peril. And even if Trump were to try pardoning himself for any crimes on the way out the door of the White House — as many expect — presidents cannot grant pardons of state charges. New York would remain free to act.

This all suggests a real possibility of yet another unprecedented event: a new president being sworn in, and the former president facing state criminal prosecution shortly thereafter.

Like this post? Click here to join the Sidebars mailing list

The Status of the Michael Flynn Case

Update: On June 24, 2020, in a 2-1 decision, the D.C. Circuit granted the petition for mandamus and ordered Judge Sullivan to dismiss the case. Sullivan or one of the circuit judges may request en banc review by the full court.

The Michael Flynn case is no longer just about a senior government official who lied to the FBI. The prosecution of president Trump’s former national security advisor has become a symbolic struggle over the separation of powers and a showcase for allegations of corruption within the Trump Justice Department. Regardless of the outcome of these court proceedings, Flynn is unlikely ever to see the inside of a jail cell. But how the case plays out over the next few weeks will be an important test of the ability – and willingness – of the judiciary to push back against the Trump administration’s abuse of the justice system.

Michael Flynn
Michael Flynn

Procedural History of the Flynn Case

Flynn pleaded guilty in December 2017 to one count of lying to the FBI. During his guilty plea, Flynn admitted under oath that he had lied to FBI agents about his contacts with the Russian ambassador in December 2016 on behalf of the incoming Trump administration. He confirmed his guilt under oath a second time after his case was transferred to judge Emmet Sullivan. Flynn’s sentencing was substantially delayed while he cooperated with the government during the Mueller investigation.

Once the Mueller probe was concluded, however, Flynn changed his tune. Last summer he fired his respected defense team from the leading D.C. firm of Covington & Burling and hired Sydney Powell, a vocal DOJ critic and Fox News regular. In recent months Powell moved to withdraw Flynn’s guilty plea and to have the charges dismissed, claiming Flynn was an innocent victim of government misconduct. Those motions are still pending before Judge Sullivan.

But the real bombshell in the case landed last month. On May 7 the Justice Department filed a motion to dismiss Flynn’s case. After defending Flynn’s prosecution in court for more than two years, DOJ told the court it now believed Flynn had not actually committed a crime and never should have been prosecuted in the first place.

In response to this startling motion, Judge Sullivan made it clear he wasn’t simply going to accept the government’s claims at face value. Since Flynn and the DOJ were now on the same side, Sullivan appointed a respected former federal judge, John Gleeson, to present any legal arguments against the government’s motion. He also asked Gleeson to advise him on whether Flynn should be charged with contempt for lying during his plea proceedings.

Rather than wait for Judge Sullivan to rule, on May 19 Flynn’s attorney took the unusual step of asking the U.S. Court of Appeals for the D.C. Circuit to issue a writ of mandamus – an order telling Sullivan that he has to grant the motion to dismiss without any further proceedings or delay. The court of appeals asked to hear arguments on the mandamus petition, and Sullivan appointed prominent D.C. attorney Beth Wilkinson to represent him. The Justice Department filed a brief in support of Flynn, and the court of appeals heard arguments on the mandamus petition on Friday, June 12.

As of today, the posture of the case is that Sullivan has a hearing set for July 16 on the motion to dismiss. But before that happens, we expect to hear from the D.C. Circuit on whether it will grant Flynn’s petition for mandamus. If it does, it will order Sullivan to grant the motion and the case will be over. If the circuit court denies the petition, Sullivan will hold the hearing and then either grant the motion to dismiss or deny it and set Flynn’s case for sentencing.

There are two different types of issues presented by these various legal maneuvers: the merits and the process. The merits issue is whether the government’s motion to dismiss should be granted and how much discretion, if any, Judge Sullivan has to review the government’s purported reasons for the dismissal. The process issue is who gets to decide those questions in the first instance: Judge Sullivan, or the Court of Appeals?

U.S. District Judge Emmet Sullivan

Who Gets to Decide?

The process issue is far easier. There are definitely novel and difficult questions raised by the government’s motion to dismiss. But in the ordinary course of legal proceedings, it’s the trial judge who gets to decide those issues first. Sullivan may well end up granting the motion to dismiss, and the case will be over. If he denies the motion, Flynn could appeal to the D.C. Circuit at that time. But there is no justification for the extraordinary remedy of a writ of mandamus, which would allow Flynn (and the government) improperly to sidestep the proceedings before Sullivan.

Flynn and the DOJ argue that mandamus is appropriate because Judge Sullivan has no discretion here. There is no longer an active dispute before the court, because both the defense and the prosecution agree they want the case dismissed. Because the executive branch has sole discretion to decide whether to prosecute, they argue, the judge lacks the constitutional authority to keep the case alive.

One difficulty with this argument is that Federal Rule of Criminal Procedure 48(a), which governs motions to dismiss, says the government may dismiss a case only “with leave of court.” As Judge Wilkins repeatedly pointed out during the D.C. Circuit argument on Friday, that language must mean something. It suggests there is a role for the court to play and that the judge is not merely a rubber stamp. Attorneys for Powell and the DOJ have struggled to explain how “with leave of court” actually means that the court has no choice.

Whether a judge has the authority to deny a motion to dismiss that is agreed to by both sides is an unsettled question. In Rinaldi v. United States the Supreme Court stated:

The words “leave of court” were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, 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 [by lower courts] 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. (emphasis added, citations omitted)

That’s the issue presented in Flynn’s case: whether Judge Sullivan has the authority to deny the motion to dismiss based on a finding that the motion was prompted by “considerations clearly contrary to the public interest” – namely corruption within the DOJ and the fact that Flynn is a political ally of president Trump’s.  The Supreme Court did not decide in Rinaldi whether a judge has that kind of authority, and that question remains unresolved.

The Need for “Regular Order”

The fact that Sullivan’s authority is unsettled is why the mandamus petition should be denied. Mandamus is an extraordinary and unusual remedy. It requires the law to be so clear that there is no possible debate about the proper outcome; the movant must be “clearly and indisputably” entitled to relief and have no other adequate remedy. That’s simply not true in this case. The legal standards governing this motion are unresolved, not “clear and indisputable,” and Flynn has an adequate remedy: let the judge decide his motion, as in any other case.

As Judge Henderson repeatedly pointed out during the D.C. Circuit argument, “regular order” demands that the trial judge, Judge Sullivan, gets to decide those difficult issues in the first instance. That will allow the facts to be fully developed and the arguments on both sides to be heard, and will allow Sullivan to make findings of fact and rulings of law. An appeal to the D.C. Circuit could then follow, if necessary. That’s how our court system works. You don’t get an exception for being the president’s pal.

The mandamus petition argues that Sullivan has no authority to deny the motion to dismiss. Sullivan may well end up agreeing. But Flynn is saying Sullivan can’t even consider the question; can’t even hear the arguments on both sides and make a decision. That’s wrong.

I think the D.C. Circuit is likely to deny the mandamus petition. Judge Sullivan should get to decide the motion to dismiss before the court of appeals gets involved.

Former federal judge John Gleeson

The Merits of the Motion to Dismiss

On the merits, the government’s motion to dismiss is remarkably weak. Judge Gleeson, the amicus appointed by Judge Sullivan, concluded that the arguments advanced by the government are “pretextual” and that the motion is “riddled with inexplicable and elementary errors of law and fact.” I think Gleeson is correct. The legal arguments are frankly laughable. They are also inconsistent with arguments the government itself has made repeatedly over the more than two years this case has been pending.

The government argues first that it now does not believe Flynn’s lies to the FBI were material, as required by the false statements statute. But materiality is a very low bar — a statement need only have the potential to influence some government decision. Flynn’s lies to the FBI about his Russian contacts, made in connection with the FBI’s investigation of Russia and the Trump campaign, easily meet that standard. As Judge Gleeson put it: 

In short, pursuant to an active investigation into whether President Trump’s campaign officials coordinated activities with the Government of Russia, one of those officials lied to the FBI about coordinating activities with the Government of Russia. It is hard to conceive of a more material false statement than this one.

The government claims the lies could not be material because they were not related to a properly predicated investigation of Flynn. This too is nonsense. You don’t have to be the subject of an active investigation yourself to lie to the FBI, or for the FBI to have a reason to interview you. Whether a particular investigation was properly opened or was about to be closed are, as Judge Gleeson noted, simply matters of “bureaucratic happenstance that had no bearing on whether the FBI could or should interview Flynn” about his Russian contacts. In other words, even if the FBI screws up some internal paperwork or procedure before your interview, you don’t get a free pass to lie.

The government also claims it now believes it could not prove that Flynn intentionally lied. Of course, it doesn’t have to prove that, because Flynn himself has already admitted it repeatedly, under oath. He also lied to others in the Trump administration, which is why he was fired after only a couple of weeks on the job. In his brief, Judge Gleeson describes in meticulous detail the various false statements Flynn made during his interview and why they were false.

Judge Sullivan has already ruled – agreeing with earlier arguments made by the prosecutors – that Flynn’s statements were material. Flynn himself has repeatedly acknowledged under oath that he lied to the agents. But the government now claims it could not prove materiality or that Flynn lied. It’s easy to see why Gleeson concluded that the government’s arguments are legally unsound and are a transparent effort to drop the case simply to benefit an ally of president Trump.

What Should Sullivan Do?

The legal arguments in support of the government’s motion to dismiss may be laughable, but that doesn’t necessarily mean that Sullivan should, or can, deny the motion. As noted above, the “leave of court” requirement in Rule 48(a) indicates the court does not have to simply serve as a rubber stamp in the face of such obviously pretextual arguments for dismissal. And the Supreme Court’s footnote in Rinaldi at least notes the possibility that the motion could be denied if contrary to the public interest. But when both the prosecutor and defense agree a case should be dismissed, can the judge really insist that the case go forward?  And what would that look like?

In his brief filed on June 10, Judge Gleeson argued that Sullivan should deny the motion and proceed to sentence Flynn. Gleeson pulled no punches, accusing the DOJ of a “gross abuse of prosecutorial power.” He argued that the motion to dismiss was an “unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.”

As Gleeson points out, the integrity of the judicial branch is at stake here too. The judge is not required to be complicit if he finds an abuse of the prosecutor’s authority:

The Executive Branch had the unreviewable discretion to never charge Flynn with acrime because he is a friend and political ally of President Trump. President Trump today has the unreviewable authority to issue a pardon, thus ensuring that Flynn is no longer prosecuted and never punished for his crimes because he is a friend and political ally. But the instant the Executive Branch filed a criminal charge against Flynn, it forfeited the right to implicate this Court in the dismissal of that charge simply because Flynn is a friend and political ally of the President. Avoiding precisely that unseemly outcome is why Rule 48(a) requires “leave of court.” 

Gleeson argues that accepting the government’s false reasons for dismissal would undermine the public’s confidence in the rule of law by demonstrating that the Trump DOJ may act to benefit the president’s political cronies with impunity.

Admittedly, denying a motion to dismiss supported by both sides could present difficulties in some cases. As Flynn and the government’s lawyers argued in the D.C. Circuit, a judge has no mechanism to compel prosecutors to move forward with a case they want to dismiss. But in the current posture of Flynn’s case, that’s not really an issue. Flynn’s prosecution is essentially over; there is nothing more that prosecutors need to do. All that remains is sentencing, and prosecutors have already filed memoranda setting forth their positions on that. Sullivan could easily proceed to sentence Flynn even if the current prosecutors decline to speak at the hearing.

I don’t know how Judge Sullivan will ultimately decide the motion to dismiss. I wouldn’t be surprised if he grants it in the end. But if he does, it won’t be because the government is right on the merits. It will be because he agrees that in our constitutional structure the executive branch has absolute authority over decisions to prosecute. He may rule that even if a prosecution is dropped for corrupt reasons, the remedy has to lie elsewhere. The remedy is not to try to force the prosecution to proceed — which, in most cases if not this one, would be impossible anyway. But if Sullivan decides a judge does indeed have the authority to deny a motion to dismiss because it is contrary to the public interest, he will likely deny the motion. The posture and facts of this case make it a great candidate for such a denial.

Won’t Trump Just Pardon Flynn Anyway?

Many feel that this entire proceeding is an exercise in futility. After all, even if Sullivan ended up denying the motion to dismiss, sentenced Flynn to prison, and that was upheld on appeal, it seems almost certain that president Trump would step in and pardon him. So as I mentioned at the outset, no matter how this all turns out, Flynn is unlikely ever to see the inside of a jail cell.

But regardless, this is a case where the process is important. It’s important first to uphold the principle that the president’s buddies, just like everyone else, have to pursue “regular order” in the court system. They don’t get to go over the head of a judge whose rulings they might not like and get the court of appeals to order the judge to rule their way. They need to play by the rules, present their arguments to the judge, and then appeal if necessary, just like everyone else.

Denial of the motion followed by a pardon would actually be a better result because, oddly enough, it’s more honest. If Trump wants to exercise his pardon power to benefit his political allies, he should have to take whatever political heat goes along with that. The motion to dismiss was Attorney General Barr’s attempt to do Trump’s dirty work for him – to get Flynn off the hook by pretending that justice demanded it. That should not be allowed. If Trump wants to use his power corruptly to benefit his political crony, he should have to own it.

Finally, even if Sullivan ultimately grants the motion, holding a hearing where the government has to defend the motion will provide a public airing of the government’s actions and purported reasons for the dismissal. Those who argue Sullivan must grant the motion say that even if there is corruption underlying the motion, the remedy is for the public to hold that against the politically-accountable executive branch. But that accountability can’t happen if the true reasons for the dismissal remain concealed.

During the D.C. Circuit argument, the government’s attorney objected to the idea of a hearing where the government may “have to explain itself.” That objection is telling. The “leave of court” requirement must mean, at the very least, that Judge Sullivan is entitled to an explanation. He’s entitled to explore why the government has reversed course after pursuing a case before him for more than two years. By accepting briefs, holding a hearing, and issuing a ruling containing findings of fact, Judge Sullivan can shine some sunlight on DOJ’s misconduct, even if he ultimately grants the motion. That will provide voters with information they can use to evaluate the conduct of Trump’s DOJ when they go to the polls in November.

In the end, that might be the most helpful outcome of all.

Like this post? Click here to join the Sidebars mailing list