How Should Judge Sullivan Determine if the Government s Motion to Dismiss the Michael Flynn Case is Appropriate? Reason.com

From the perspective of applying neutral principles to dismissal motions, it is unclear why the Flynn case is suddenly attracting such broad attention. Indeed, if anything, this particular dismissal motion arguably deserves less scrutiny than many others that the Government files. Here, the crime at issue (false statement during a Government investigation) can be viewed as a “victimless” crime or, perhaps more precisely, a crime in which the only victim is the Government. And the Government/victim in this case is represented by legal counsel in contrast to the vast majority of criminal cases, in which victims are unrepresented. Here, the Government/victim has indicated that it can no longer clearly prove the underlying criminal case. As the Government’s dismissal motion explains in great detail, “[u]nder these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are ‘material’ to an investigation that as explained above seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.” In other words, in this case, no “victim” exists in contrast to many other Government dismissal motion cases, in which a crime”victim” indisputably exists.

via reason.com

Professor Paul Cassell.