The “Watergate Prosecutors” As Amici, Weigh In — Against Judge Rao, In The DC Circuit…

The storied amici have. . . arrived, in the DC Court of Appeals. Quite an entrance — one befitting such protagonists, in at least one shining moment, in our nation’s history, related to curbing the abuses — of Executive Branch powers — by then-sitting presidents.

I’ll get right to it, then — but USDC DC Judge Emmet Sullivan is likely to adopt much of this — in his own reply (now due in eight days) to the panel, at the Appeals Court (including Judge Rao). Here’s a bit, but do go read all 26 pages:

. . . .[G]ranting [without judicial review, as here] a post-plea Rule 48(a) motion [as Barr attempts here] threatens several core Article III values. When a court accepts a guilty plea, it “exercises its coercive power by entering a judgment of conviction.” Fokker Servs., 818 F.3d at 746. Article III courts have a strong interest in the “conservation of judicial resources and [the] finality of judicial decisions.” Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986) (per curiam). That concern with finality “has special force with respect to convictions based on guilty pleas,” United States v. Timmreck, 441 U.S. 780, 784 (1979), which courts accept only with “care and discernment,” Brady v. United States, 397 U.S. 742, 748 (1970), and “the utmost solicitude of which courts are capable,” Boykin, 395 U.S. at 243-44.

In addition, Article III courts have a strong interest in “protect[ing] . . . the sentencing authority reserved to the judge.” Ammidown, 497 F.2d at 622; see United States v. Brayboy, 806 F. Supp. 1576, 1580 (S.D. Fla. 1992) (holding that it would raise a separation-of-powers problem if the Executive could use Rule 48(a) to “eliminate [a] [c]ourt’s authority to sentence, or if a sentence has been imposed, to set aside that result”). . . .

[Footnote:] Despite his extensive reliance on that case for its Rule 48(a) standard (see Pet. 9-11, 17-21), Flynn nowhere mentions that Fokker concerned a hypothetical pre-conviction motion to dismiss charges that were still “pending.” Fokker Servs., 818 F.3d at 742. . . .

District courts must, therefore, have substantial discretion in ruling on Rule 48(a) motions filed after the court has accepted a guilty plea. The casual vacatur of guilty pleas “debases the judicial proceeding at which a defendant pleads and the court accepts his plea.” United States v. Hyde, 520 U.S. 670, 676 (1997). For that reason, a defendant’s motion to withdraw a guilty plea is committed to “the [trial] court’s discretion.” United States v. Thomas, 541 F. Supp. 2d 18, 23 (D.D.C. 2008). That discretion is substantial, and “a defendant who fails to show some error under Rule 11 has to shoulder an extremely heavy burden” to show it has been abused. United States v. Leyva, 916 F.3d 14, 22 (D.C. Cir. 2019). . . .

Now you know. They are. . . spot on, here. And we will remain convinced that calmer heads will prevail here, in the end.


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