Michael Flynn’s case has been unprecedented. This isn’t news. But it is news that today a federal appeals court agreed and found that Judge Emmet Sullivan’s actions constituted “unprecedented intrusions on individual liberty and the Executive’s charging authority.”
Those are strong words.
So what happened? How did we get here? And where are we headed?
The backstory by now is painfully familiar to all, and we don’t need to recount it here. It’s sufficient to say that when the Department of Justice moved to dismiss the charges against Flynn, something squarely within the executive function of its prosecutorial powers, Sullivan balked and set in motion a circus-like proceeding by appointing an “intemperate” former federal prosecutor and judge—John Gleeson—to argue against the motion and by inviting other outside parties to weigh-in on his decision.
Recognizing the unprecedented nature of his actions, Flynn and his attorneys asked the D.C. Circuit to order Sullivan to grant the government’s motion and dismiss the charges. They also asked the court to vacate Sullivan’s appointment of the former federal judge to argue against the motion and to reassign the case away from Sullivan.
They did all of this by asking the D.C. Circuit to take the “drastic and extraordinary” step of issuing a writ of mandamus.
“Mandamus” is far from a commonly known, or understood, term. It’s Latin that literally translates to “we command.” So it makes sense that Flynn asked for a writ of mandamus because he wanted the D.C. Circuit to command Sullivan to follow the law and take specific actions.
Fortunately for Flynn—and our system of government—a panel of the D.C. Circuit by a 2-1 vote granted two of his three requests.
It commanded the district court to grant the government’s motion to dismiss the charges against him and vacated the district court’s order appointing Gleeson to argue against that action. It did, however, decline to order that the case be reassigned to another judge.
Judge Neomi Rao, author of the D.C. Circuit’s majority opinion, said that Sullivan “put two ‘coequal branches of the Government [the judiciary and the executive] … on a collision course’” when he 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. … [T]here is no justification to appoint a private citizen to oppose the government’s motion to dismiss Flynn’s prosecution.”
While it’s true that Federal Rule of Criminal Procedure 48(a) says the “government may, with leave of court, dismiss” the charges against someone, Rao made it clear, relying on previous cases from the U.S. Supreme Court and her own court, that ‘“decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion.’”
She elaborated that there is no “substantial role” for the courts to play in these decisions and that to the extent the courts do play a role, it’s “to protect a defendant against prosecutorial harassment.”
Rao said that here, “Whatever the extent of the district court’s ‘narrow’ role under Rule 48(a) … that role does not include designating an advocate to defend Flynn’s continued prosecution … [and] the district court’s invitation to members of the general public to appear as amici suggests anything but a [limited,] circumscribed review.” She emphasized that this “sort of broadside inquiry would rewrite Rule 48(a)’s narrow ‘leave of court’ provision.”
Citing a leading treatise on federal procedure, she rebutted Sullivan’s claim that this case is different because the government filed the motion after a guilty plea had been entered. Rao said “[Sullivan’s] claim conflicts with black letter law” because the government can still move to dismiss charges even after conviction and sentencing while the case is on direct appeal.
She also rebuffed Sullivan’s claim about an irregularity in this case. Noting the strong presumption of regularity that attaches to the executive’s charging decisions, Rao went on to catalogue that in its motion to dismiss, the government engaged in “extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt,” saying that “[i]nsufficient evidence is a quintessential justification for dismissing charges.”
Rao also pushed back against Sullivan’s and the dissent’s argument that a district judge is entitled to hold a hearing before granting a motion to dismiss charges.
She said that “[a] hearing may sometimes be appropriate before granting leave of court under Rule 48; however, a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions, because ‘authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without the oversight power in—the Judiciary.’”
Finally, criticizing the dissent and emphasizing the separation of powers concerns caused by Sullivan’s actions, Rao said:
[T]he dissent swings for the fences—and misses—by analogizing a Rule 48(a) motion to dismiss with a selective prosecution claim. Of course, the Executive may not ‘selectively prosecute someone based on impermissible considerations.’ … But the equal protection remedy is to dismiss the prosecution, not to compel the Executive to bring another prosecution. … When the court scrutinizes a selective prosecution claim, it exercises the core Article III power by protecting individuals from improper and unconstitutional prosecutions. … Yet unwarranted judicial scrutiny of a prosecutor’s motion to dismiss places the court in an entirely different position. Rather than allow the Executive Branch to dismiss a problematic prosecution, the court assumes the role of inquisitor, prolonging a prosecution deemed illegitimate by the Executive. Judges assume that role in some countries, but Article III gives no prosecutorial or inquisitorial power to federal judges. … To suggest that judicial dismissal of an improper prosecution is analogous to the judicial continuation of an improper prosecution turns the separation of powers on its head.
If enough D.C. Circuit Court judges agree, the entire court, sitting en banc, could decide to review the panel’s decision. It’s possible, but hopefully unlikely.
Given all of this, the case against Flynn should be quickly and quietly dismissed. Since the case has not been reassigned, Sullivan will still have the opportunity to express his views on the matter, and he well might, but his orders are now clear: No inquisition. No amicus. No searching inquiry. Grant the motion to dismiss and adhere to our system of government’s separation of powers structure.
Flynn has endured an unprecedented saga. It’s time for the district court to follow binding precedent and to end it.