Thread: Assuming Judge Sullivan grant's the government's motion to dismiss the Flynn indictment, can Flynn later be re-charged for the same offense? 1/

As an initial matter, the government has requested that Judge Sullivan dismiss the indictment *with prejudice.* If Judge Sullivan grants that request then Flynn can never be charged with the 1001 violation again. 2/

But, in theory (I think), Judge Sullivan could agree to dismiss the indictment but only *without prejudice.* Then the question is whether Flynn has double jeopardy protection. And whether Flynn would have DJ protection is a surprisingly difficult question. 3/

A defendant gets DJ protection only once "jeopardy has attached." The Supreme Court has held--in criminal trials-- that means when the jury is empaneled (or, in a bench trial, when the first witness is sworn in). But what about in cases of guilty pleas? 4/

Turns out that there is an entrenched circuit split on this point. Some hold that jeopardy attaches at the guilty plea and some hold it only attaches at sentencing. https://www.fd.org/news/courts-split-about-when-double-jeopardy-attaches-after-guilty-plea. (The DC Circuit, the relevant Circuit, has apparently not yet addressed this question) 5/

But there's one more variable: Flynn had (before DOJ's recent volte face) asked the Court to allow him to withdraw his guilty plea. I believe that motion is still pending. So Judge Sullivan could try to grant *that motion* before ruling on the government's dismissal motion.

In short, there are a lot of moving parts here. It'll be very interesting to see how it all plays out. 6/6