Might Sullivan Dismiss The Flynn Case--Without Prejudice?

Shipwreckedcrew has a provocative article today: My Take on Yesterday’s Hearing on DOJ Motion to Dismiss Prosecution of Gen. Michael Flynn. He doesn't offer much analysis of the actual hearing--which dragged on for an almost unconscionable span of time. However, he offers a prediction as to how he believes Sullivan will rule on the DoJ motion to dismiss.

He believes that Sullivan will ultimately grant the motion to dismiss--but with a twist. DoJ is asking that the case be dismissed with prejudice, meaning that DoJ would not be able to reinstitute prosecution of Flynn on the same charges. SWC believes that Sullivan will follow the advice of Andrew Weissmann, and dismiss the case without prejudice. And that would mean that DoJ could--at least theoretically--reinstitute the prosecution.

I'm treading on ground here that I freely admit is well beyond my experience. SWC doesn't seem to see much problem with this outcome, but I'm not so sure.

SWC sees this outcome as protecting the interests of US district courts generally and, to that extent, as justifiable.

First, you need to understand the “equities” of Judge Sullivan in this dispute.  He’s fighting against the idea that a district court judge like himself does not have the authority to “check” what he might see as “abuses” in the decision-making process of the Executive branch AFTER they bring matters into his court. On this issue, I suspect he’d have broad support from district court judges all over the country. They are the gatekeepers to the federal court system. By asserting a strong role for the trial judge under Rule 48, Judge Sullivan — aided by Judge Gleeson — is saying to DOJ:

“You brought this case, you occupied my time, you made representations and arguments on the record to me and asked me to do certain things in my role as a district court judge, and you don’t get to just walk away from all that without an explanation that is to my satisfaction.”

He is defending institutional turf that he believes belongs to the Judiciary once a case is filed — and in this case a guilty plea is entered.

My problem with this line of argument is that it seems to me to ignore the whole reason for having courts to begin with--to see that justice is done. There is no mention here of the one person in the process with by far the most at stake: the defendant, in this case Michael Flynn. If we grant for the sake of argument that Sullivan may feel his time has been wasted and that DoJ's feet should be held to the fire, does the bankrupted Michael Flynn have no equities in this? What about his good name? This result--dismissal without prejudice--would mean that Flynn would not "get to just walk away." 

Consider this further line of argumentation by SWC:

But in the end, I think he will say he’s deeply skeptical of reasons and motives offered by DOJ, and he believes their legal analysis on “materiality” is not correct or persuasive. ... 

So my prediction is he will grant the motion but do so without prejudice in an “over-the-top” Opinion that declares the effort by DOJ to be a political favor to Pres. Trump.

According to SWC this move--dismissal with prejudice--will prevent Sidney Powell from pursuing her motion to withdraw Flynn's guilty plea. What this smacks of to me is a judicial vendetta. Flynn gets a dismissal with an asterisk next to it. Here's what I mean.

The nub of this is that Sullivan obviously wants Michael Flynn to be held guilty. Failing that, he  will, in effect and on the record, counter DoJ's judgment of the case with his own judgment--he will maintain that DoJ is wrong and that Flynn did make materially false statements. He will see to it that Flynn's name will forever be tarnished.

But Sullivan will also be attempting to circumvent Flynn's effort to withdraw his plea and to argue his case to a jury--that he did NOT make materially false statements. What happened to the right to a trial by jury? And, indeed, several legal commentators did express astonishment that Gleeson--at Sullivan's invitation--appeared to argue that it was somehow illegitimate for a defendant to withdraw a guilty plea, even when--as here--there is overwhelming evidence of egregious government misconduct. By countering DoJ's judgment in this way it appears that Sullivan is, in a sense, pursuing his own desire to penalize the defendant, Flynn, independently of the prosecutorial arm of the government in a way that was never envisioned by the legal precedents or by Rule 48.

Further, I wonder whether this dismissal without prejudice will have the effect of prejudicing Flynn's attempts to gain redress via a civil action--a Bivens lawsuit--for the government's misconduct. If there is a judicial opinion on the record that maintains in effect that Flynn was guilty, will that not at the very least present a significant extra obstacle to any redress that Flynn may seek--if not render it impossible? This strikes me as justice denied for Flynn and I seriously wonder whether this is part of Sullivan's calculus, if he chooses this path.

My hope is that if Sullivan does go down this devious road then DoJ will join with Sidney Powell in appealing such a ruling directly to the Supreme Court. There needs to be an end to this outrageous political persecution of Flynn by the Judicial Branch.