Do we really want judges denying uncontested motions on substantive grounds? I mean, if there's a procedural issue, I get that. But what does it say for due process that a man can move to withdraw his plea and the State can choose not to contest the motion, and an unelected judge (or judges) can simply say "nah, I think you're guilty anyway. Not only do you get sentenced, you don't get a jury trial, either."
I mean, screw Flynn, Barr, and Trump. If seven months from now Biden wants to go after Flynn for a Logan Act violation, I'd see no issue with him doing so. But this motion right here needs to be granted, and Flynn's current case needs to be dismissed. To do anything else is f***ing terrifying.
Judges have that authority in almost every context except, apparently, this one. It’s not regularly abused or even exercised. Most of the time they just rubber stamp agreements, but they don’t have to. Hardly terrifying.
In fact, if the government had done what you said and just declined to contest or agreed to Flynn’s motion, the judge would have had the final say because the motion would return the case to the trial docket and would not dispose of it. He would have been required to announce findings of fact in support of his decision. Given the legal precedent the parties would have been SOL if he had. And he wasn’t going to and DOJ knew it. Which is why they didn’t just agree to Flynn’s motion, as you said and filed their own motion to dismiss, instead.
I agree that, absent some affirmative evidence of corruption, the motion should be granted. But the procedure by which you get there matters. When there is an appearance of impropriety, as there clearly is here, the judge should be obligated to create a record to determine whether the presumption of regularity is overcome, in order to promote faith in the legal process.
What the circuit court just did created an unworkable standard In which that presumption could never be overcome in a case involving a corrupt prosecutor, neutered any deterrent value of judicial oversight in similar cases, and did nothing to justify public faith in the outcome of this case.
That’s not good policy and it is not even true to the black letter law.
Fortunately, it’s probably not applicable to many people since the appearance of impropriety in this case is that this type of stuff almost never happens so aside from the dozen or so people in Trump’s orbit who are facing prison time, it’s probably not applicable to many people.
