A three-judge panel for the U.S. Court of Appeals for the District of Columbia, by a 2 to 1 vote, ordered the presiding U.S. District Court Judge Emmet G. Sullivan to immediately dismiss the case against retired three-star general Michael T. Flynn, President Trump’s former national security adviser. The Court approved a writ of mandamus for this purpose. Judge Sullivan had tried to prolong the case against Flynn on his own initiative after the Justice Department moved to drop its charges. The case is “about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives,” wrote appellate Judge Neomi Rao for the majority. Based on the Constitution’s separation of powers and case precedent, “he may not,” Judge Rao added.
Flynn had pleaded guilty to the charge of making false statements to government investigators. He subsequently sought to withdraw his guilty plea after exculpatory evidence came to his new attorney’s attention. Judge Sullivan would not let Flynn off the hook, however. Even after the Justice Department reviewed the FBI’s misconduct in the matter and decided to drop the case after concluding that the prosecution could no longer prove beyond a reasonable doubt that any false statements made by Flynn were material to a legitimate investigation, Judge Sullivan pressed on. He zealously sought to play prosecutor himself with the aid of a biased retired judge, John Gleeson, who Judge Sullivan tapped to argue why the Justice Department’s decision to drop the case was improper. Not surprisingly, Gleeson submitted a brief to the District Court accusing the Justice Department of having reached a “corrupt, politically motivated dismissal” that constituted a “gross abuse of prosecutorial power.” Gleeson simply expanded on his preconceived opposition to the Justice Department’s decision, expressed in an op-ed article he had co-authored previously. The Court of Appeals panel decision noted the anomaly that “the court has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges.”
The Court of Appeals panel decision referred to the fundamental constitutional principle of separation of powers. The Executive Branch decides what cases to prosecute and is entitled to “a presumption of regularity” in its favor when it determines that a case should be dropped in the light of new evidence. “In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” Judge Rao wrote. “The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority… The circumstances of this case demonstrate that mandamus is appropriate to prevent the judicial usurpation of executive power.”
It is within the Executive Branch’s prerogative to change its mind on charges in light of newly discovered evidence it deems relevant to the case. Judge Rao noted that “each of our three coequal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice.” While this does not mean that prosecutorial charging decisions by the Executive Branch are never subject to judicial scrutiny, judicial authority in this respect is limited. Examples of when “a court may scrutinize a motion to dismiss,” Judge Rao wrote, would involve an “extraordinary showing of harassment of the defendant or malfeasance such as bribery—neither of which is manifest in the record before the district court.”
The full Court of Appeals can, if it wishes, review the three-judge panel decision at the request of Judge Sullivan or on its own initiative. Trump-hating pundits will no doubt cry foul and demand a full court re-hearing, pointing to the fact that Judge Neomi Rao, the author of the panel’s majority opinion, is a Trump appointee.
Critics of the Justice Department under Attorney General William Barr may also be encouraged by Supreme Court Chief Justice John Roberts’ majority opinion on June 18th striking down the Trump administration’s executive order that had put an end to DACA. Chief Justice Roberts concluded that the Trump administration had not adequately explained its reasoning for ending DACA and thus had acted in an “arbitrary and capricious” manner. Those who want Flynn’s head may try to challenge the Justice Department’s decision to drop the charges against Flynn on the same grounds Roberts used in his DACA opinion – that it was “arbitrary and capricious.” Considering some of his recent positions on controversial cases, it is quite possible that Chief Justice Roberts would once again take this approach and join his liberal colleagues against the Trump administration if the Flynn case were to reach the Supreme Court. This could mean that Judge Sullivan would get another crack at Michael Flynn. Allowing the persecution of Michael Flynn to continue would represent a complete travesty of justice.