A divided panel of the D.C. Circuit Court of Appeals this morning ordered Judge Emmet Sullivan to grant the Justice Department’s motion to dismiss the indictment against Michael Flynn, who fleetingly served as President Trump’s first national-security adviser.
In a majority ruling written by Judge Naomi Rao and joined by Judge Karen LeCraft Henderson, appointees of Presidents Trump and Bush 41, respectively, the court held that the executive branch has the constitutional power of prosecutorial discretion, including the authority to decide which cases to charge and whether to persist in charges once they’ve been brought. This power is in tension with Rule 48(a) of the Federal Rules of Criminal Procedure, which requires the Justice Department to seek “leave of the Court” before dismissing an indictment. While not deciding the potentially legitimate parameters of this requirement, the majority reasoned that it is for the protection of defendants from prosecutorial harassment.
Relying on the D.C. Circuit’s 2016 Fokker precedent, the court found that Rule 48(a) does not permit a thoroughgoing inquiry into the executive branch’s reasoning for dismissal — at least in a case in which the accused joins the prosecution in seeking a dismissal with prejudice (such a dismissal stands as a final judgment and bars the government from re-charging the defendant with the same offense at a later date).
The ruling is legally sound, but I confess to being surprised. As I’ve explained, mandamus is a rare remedy because appellate courts do not like to conclude that district judges are in profound error and need to be corrected. My sense, after listening to the oral argument nearly two weeks ago, was that the D.C. Circuit would probably allow Judge Sullivan to go forward with the proceeding he had scheduled for mid-July but would respectfully nudge him to follow settled law and dismiss the case, which he has seemed disinclined to do. The appellate court could then have reversed any further errors he made in the normal course of litigation. Clearly, however, the panel majority decided Sullivan had gone too far and needed more than gentle prodding. Thus, it has issued the extraordinary mandamus writ.
The majority ruled that Judge Sullivan’s recent orders, encouraging the filing of amicus briefs and commissioning such a brief from former federal judge John Gleeson in order to oppose the Justice Department’s dismissal, impermissibly intruded the court into the deliberations of the executive branch, flouting separation-of-powers principles. The panel found that this process was already prejudicing the Justice Department. Judges Rao and Henderson rejected the contention of dissenting Judge Robert L. Wilkins (an Obama appointee) that the Justice Department’s interests were irrelevant since it had not formally joined Flynn in seeking mandamus.
Judge Wilkins would have permitted Judge Sullivan to proceed with the hearing the latter had scheduled for mid-July, and to conduct some measure of exploration into the Justice Department’s motives. As the majority countered, Fokker and the Supreme Court jurisprudence on which it relied simply do not allow for “any substantial role for courts in the determination whether to dismiss charges.”
In granting mandamus, the court directed Judge Sullivan to permit the Justice Department to dismiss the case, notwithstanding that Flynn had pled guilty to a false-statements charge. Flynn had moved to vacate his plea, arguing that he had been coerced into it and that the government had withheld exculpatory evidence — part of a pattern of what Flynn’s counsel, Sidney Powell, alleged was outrageous misconduct warranting dismissal of the charges.
The Justice Department reviewed Flynn’s case at the direction of Attorney General Barr. The review was done by St. Louis U.S. attorney Jeffrey Jensen, a longtime federal prosecutor and former FBI agent. The DOJ concluded that there had been no basis for the FBI to investigate Flynn, and therefore that any alleged misstatement he’d made in a January 24, 2017, interview could not have been material to a legitimate government investigation, as the false-statements statute requires. The DOJ thus moved to dismiss. The panel majority endorsed this course of conduct, reasoning that the government should be encouraged to self-correct if it perceives it has been in the wrong.
To the extent Flynn sought to have the case reassigned to another district judge, the D.C. Circuit denied that application. Obviously, the court expects that Judge Sullivan will carry out its instruction. At oral argument, Judge Sullivan’s counsel assured the panel that he is an experienced and well-regarded judge, who would do what the law requires. While it is possible that Sullivan could ask the full D.C. Circuit Court (i.e., all of its active judges) for an en banc review of the panel ruling, he has little to gain from such a move and will look worse if he is rebuffed. The Flynn case has been a travesty from beginning to end, and it’s past time to drop the curtain.