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New York City Bar Association Statement On Appointment of Independent Special Counsel in Flynn Case

The New York City Bar Association, with more than 24,000 attorneys from across the United States and a 150-year tradition of support for the rule of law, views with concern the  efforts by the Department of Justice (DOJ) to dismiss the pending criminal case against Michael T. Flynn, in which Mr. Flynn has already pleaded guilty twice in open court. Because the circumstances of this abrupt about-face by DOJ on the eve of Mr. Flynn’s sentencing threaten to undermine public confidence in the administration of justice, we were pleased that the federal district court in Washington, D.C., where the case is pending, appointed an independent special counsel as amicus curiae to review and offer a  response to DOJ’s motion. 

There are two equally compelling reasons supporting the appointment of an independent special counsel in the Flynn case. 

First, we believe the district court should not address the DOJ motion without hearing from an advocate in opposition to DOJ’s request to dismiss all charges against Mr. Flynn. Neither Mr. Flynn’s lawyers nor DOJ’s new lawyer can fill that role. The lead prosecutor formerly representing DOJ in this multi-year prosecution, in which Mr. Flynn has admitted to the facts of the charging information, has withdrawn from the prosecution following DOJ’s decision to abandon its case prior to sentencing on the basis of a 20-page brief that none of the DOJ staff lawyers assigned to the case was willing to sign. 

The issues implicated by DOJ’s about-face transcend everyday notions of prosecutorial discretion. This case involves admitted misconduct at the most senior levels of government; indeed, within the most senior ranks of the national security apparatus, by a defendant who was terminated as national security advisor for “lying” to the FBI and to the Vice President of the United States. The issues raised by DOJ’s unopposed Motion strike at the very core of the role of prosecutorial independence to pursue justice for all according to the rule of law.  

Under these circumstances, appointment of an independent special counsel is hardly unusual, even where the issues around public confidence in the judicial system are less compelling or notorious. The Supreme Court has itself done so in Seila Law LLC v Consumer Financial Protection Bureau, No. 19-7, –US–, [Oct. 23/19] (appointing counsel as amicus curiae in support of judgment below where parties agreed on reversal) and in Tapia v. United States, 564 U.S. 319 (2011) (amicus curiae appointed to defend judgment below where government agreed with criminal defendant’s interpretation of sentencing statute). The appointment of an attorney of recognized standing to review the DOJ motion in light of the history of the case and the investigation which underlay it and to offer an informed response to that motion is critical to protecting and advancing the principles upon which our criminal justice system is based. 

Second, DOJ’s action raises substantial questions about the fair and impartial and independent administration of justice. The new motion turns on its head historical norms respecting the independence of career prosecutors and the DOJ practice of refusing to dismiss serious cases in which the defendant has entered a plea of guilty (in this case, on two occasions). DOJ’s motion also seeks a judicially-sanctioned repudiation of the facts stated in the defendant’s sworn allocution to the crime to which he pled. And the motion is predicated on a new view of the meaning and materiality of the admittedly false statements made by the defendant, on a new view of the investigators who worked on the case, and on a new view of the law concerning those false statements. These new views should be subjected to the adversary process, especially as they arrive years later and after multiple guilty pleas. 

The Flynn case also involves a close associate of the President for whom the President has sought accommodation, which has now been given. We fear that, absent a fully-articulated review process, DOJ will have projected the appearance of bias and political partiality. This concern is elevated when we consider the Attorney General’s recent decision to override his own staff prosecutors’ sentencing recommendations in the case of Roger Stone, another close associate of the President (see United States of America v. Roger J. Stone, Crim. No. 19-018 [ABJ], D.D.C. Feb. 20, 2020), also leading to the withdrawal of four line prosecutors (and resignation of one). 

Appointment of an independent special counsel in this matter to thoroughly examine the basis for DOJ’s motion, and provide in good faith an opposing view based on that examination, also affords the Court an opportunity for a focused evidentiary hearing on the facts and circumstances leading to DOJ’s new position in the Flynn case. Such an approach would advance the public’s confidence in justice for all by protecting the institutions of our government and the rule of law upon which our democracy rests.