Whose interest do prosecutors serve? Who holds them accountable for that service?
These are two critical questions in any functioning democracy. The answer to the first question is prosecutors always should serve the interests of justice. The answer to the second one requires a thorough understanding of the checks and balances inherent in our criminal justice system. Attorney General Barr’s recent move to dismiss the charges against Michael Flynn challenges both answers in a way that undermines fundamental principles of justice.
In November 2017, the former national security advisor pleaded guilty to making false statements to investigators during a federal investigation. Flynn admitted he lied to FBI agents about his conversations with the Russian ambassador while the FBI was investigating Russian interference in our 2016 elections. Flynn admitted his crime before a federal judge (twice, actually) and has been awaiting sentencing. In a strange twist, Barr suddenly moved to abandon the plea that has stood for two-and-a-half years and drop the case.
The request, by anyone’s standards, is highly unusual. Rather than blindly ratifying it, the presiding judge has questioned the motivations and appointed an independent party to present the other side.
Now the plot thickens. Fifteen state attorneys general, surprisingly including Florida Attorney General Ashley Moody, filed an amicus (“friend of the court”) brief urging the judge to dismiss Flynn’s case immediately. First, they claim that prosecutors “alone” can decide to charge crimes. Yet even first-year law students know that charging decisions do not solely and exclusively belong to prosecutors. Grand juries and judges routinely check that power.
Their second claim is that the court “lacks authority to exercise judgment” over Barr’s request. That, however, is not the law. The rule of procedure in this situation expressly requires court approval. That rule, implemented in 1944, is intended as a limit on prosecutorial authority and to guard against questionable dismissals of cases involving well-connected and privileged defendants. As the U.S. Supreme Court has said over the past 75 years, “public interest … is foremost in every criminal proceeding” and courts have a duty to scrutinize government requests to dismiss criminal cases to ensure dismissals are not tainted by impropriety or bad faith that undermine public interest.
Third, the attorneys general laughably assert that the judge must refrain from commenting on Barr’s request because doing so “erodes public confidence in the courts.” They insist the court should exercise no judgment, sit quietly, and rubber stamp the dismissal — and claim not doing so would erode public confidence? Judicial checks and balances that protect the public interest instill confidence. they don’t erode it.
What were these 15 elected leaders thinking? All 15 are Republicans, and their filing reeks of partisan politics. Fourteen of the 15 were not federal prosecutors, and most lack any prosecutorial experience, which explains why they made only a political argument that has no legal merit.
Florida’s attorney general, however, was a federal prosecutor and a criminal judge. She has a well-deserved reputation for being thoughtful, fair, and objective. There is, however, nothing thoughtful or objective about their amicus brief. Political gamesmanship disguised as legal advocacy undermines our justice system. Attorneys general should steadfastly support the checks and balances that exist to promote accountability. Any failure to do so is an abuse of leadership. That, my fellow Americans, is what erodes public confidence.
Andrew Warren is the Hillsborough County state attorney and a Democrat.