Rule of Law

Harmon’s Histories: Case against Michael Flynn cites Missoula pioneer Franklin Woody

An obscure lawsuit involving a grandson of Missoula pioneer Frank Woody is making headlines, relating to Michael Flynn, the former Trump administration national security advisor, and the attempt to dismiss the criminal charges against him.

In an opinion piece in The Washington Post last week, Dayna Zolle of the Constitutional Accountability Center, points to the case of Franklin Woody, who was accused of embezzling “four different sums of money of the United States, ranging from $10 to $64,” while serving as a deputy federal tax collector. That was in June, 1922.

The case didn’t come before Federal District Court Judge George M. Bourquin in Missoula, though, until October 4, 1924 – more than two years later – with the following explanation/excuse: “After nine months the bench warrant issued when indictment presented was by the marshal returned, ‘Unable to find.’ And now the prosecution moves to dismiss the indictment.

“The reasons advanced by the assistant district attorney (Mr. Higgins) are that accused has not been apprehended and considerable time has elapsed, that he is of a prominent pioneer family, is young, has divorced his wife and remarried her, is studying law in a California university, must of necessity plead guilty if arraigned, and thus his ‘career as a lawyer will be spoiled,’ that the government’s losses have been reimbursed, and that the Attorney General has sanctioned dismissal.”

Judge Bourquin, based on the District Attorney’s and Attorney General’s decisions, ruled: “(T)his motion to dismiss must be and is granted, albeit reluctantly.”

But, he still took a shot at such blatant influence peddling.

The reasons cited for the dismissal, he wrote, “well may be doubted. They savor altogether too much of some variety of prestige and influence (family, friends, or money) that too often enables their possessors to violate the laws with impunity; whereas persons lacking them must suffer all the penalties.

“In brief, they and their like incite, if they do not justify, the too common reproach that criminal law is for none but the poor, friendless, and uninfluential…this belief in disparity in treatment of offenders…is a pernicious evil, and abhorrent to justice. However, the district attorney has absolute control over criminal prosecutions, and can dismiss or refuse to prosecute, any of them at his discretion.”

Dayna Zolle, in her Post opinion piece, notes that Franklin Woody was well-connected. His grandfather was Missoula’s first mayor and a district judge, while Woody’s father was close friends with the governor and had served as Montana’s assistant attorney general.”

Zolle says the Montana case “helped lead to the federal rule that is at issue in Flynn’s case, Rule 48(a) of the Federal Rules of Criminal Procedure.”

The “leave of court” section of that rule, according to Thomas Ward Frampton in the Stanford Law Review, “armed the district judge with a powerful tool to halt corrupt or politically motivated dismissals of cases.”

Remarkably, no press account is to be found of the 1924 Franklin Woody case in Judge Bourquin’s federal court.