Multiple judges on the U.S. Court of Appeals for the D.C. Circuit suggested Tuesday that the “integrity” of the judicial branch was at stake in the dispute between Michael Flynn and the judge presiding over Flynn’s case.
“The integrity and the independence of the courts is also encroached here,” Judge Cornelia Pillard told DOJ attorney Jeffrey Wall at Tuesday’s hearing, “The separation of powers is protecting Article III courts, also.”
The full circuit court is currently considering whether Flynn’s judge, U.S. District Court Judge Emmet Sullivan, is obligated to immediately dismiss Flynn’s case, now that the Justice Department wants it dropped, or if Sullivan has some discretion to further review the DOJ dismissal request.
Flynn initially asked that the appeals court intervene in Sullivan’s handling of the dismissal request. But the Department is also arguing that any effort by Sulivan to probe the DOJ’s remarkable reversal in the case amounts to an unconstitutional infringement of the executive branch’s prosecutorial power.
Pillard was one of several judges who expressed skepticism about the idea that the appeals court should be intervening in the trial judge’s proceedings at this stage. The Justice Department insisted that Flynn’s judge had virtually no choice but to dismiss the prosecution — and the DOJ held firm to that line even in the face of hypotheticals posed by judges in which courts would have clear evidence that prosecutors had been bribed into dropping criminal cases.
The extraordinary showdown began after the Justice Department in May asked Sullivan to dismiss the Flynn prosecution, while claiming to have learned new information that made it doubt the strength of the case. But instead of granting the motion immediately, Sullivan invited outside parties to act as so-called “friends of the court” to brief him on what to do next. He appointed a retired judge, who, as a friend of the court, was tasked with opposing the dismissal request.
Rather than let this process play out, Flynn asked the appeals court to get involved and initially was successful in convincing a panel of appellate judges — two of the three of them GOP appointees — to order Sullivan to drop the case. The full circuit court has put that order on hold as it rehears the dispute. Based on the judges’ comments on Thursday, the D.C. Circuit appears likely to allow Sullivan to move forward with at least a limited look at the DOJ’s move to dismiss the case.
Judge Robert L. Wilkins raised a provocative hypothetical, involving nuns, high-level corruption, and the integrity of a judiciary caught in between.
In the hypothetical, a group of nuns approached a court, saying that they had secretly videotaped a prosecutor taking a “briefcase full of cash” from a defendant.
What then should the court do, Wilkins asked, upon receiving a motion to dismiss resulting from the bribe?
Flynn’s attorney Sidney Powell took the first whack at that question, saying that the judge would still have to dismiss the case but could refer the matter for prosecution.
Wilkins later adjusted the hypothetical to allow for the obvious next question: how could you refer a case about corruption at the Justice Department to the Justice Department?
In this case, Wilkins proposed that it was a U.S. attorney or even the attorney general himself who was caught in the act of official bribery by a group of nuns.
Judge Millett then added one crucial detail to this thought experiment: what if the bribe took place in open court in view of the judge? Would that not render the court’s acceptance of a guilty plea part of the bribery scheme, “sully[ing] the reputation of the court,” in Millett’s words? Would it not at least impose an obligation on the court to question what was going on?
It fell to Wall, who is the acting U.S. solicitor general, to respond. Throughout the hypotheticals, Wall maintained that questioning a Justice Department’s decision to drop charges in open court would deal “irreparable harm to the executive branch,” regardless of the circumstances. He added that, in the DOJ’s view, there is “no mechanism” in the federal rules of criminal procedure for a judge to question a motion to dismiss from prosecutors, regardless of the circumstances
On that hypothetical, however, Wall contended that the question proved his broader point that anyone who had a problem with the Justice Department dropping charges against a friend of the President should seek a political, and not legal, remedy.
“There’s a question about whether there’s been improper political influence,” Wall said. “But that’s not the sort of thing the [hypothetical] gets at — that seems like clearly the sort of thing that should be taken care of through political channels.”
Throughout her exchange with Wall, Millett urged the acting solicitor general to put aside the potential for sanctions and other tools that could hold DOJ to account, and instead to focus on a dismissal request that would “make a mockery of justice.”
“The court wants to protect the integrity of the court and not grant the motion,” she said, as that would make the court “privy and party to closing the” bribery deal the hypothetical laid out.
Millett, Pillard and Wilkins were all appointed by President Obama. But even some GOP appointees on the court — who are outnumbered by Dem appointees on the full bench — had tough questions for the DOJ and its insistence that Sullivan had very limited power to even convene a hearing on a dismissal request.
“What if the court is concerned about favoritism being displayed to a politically powerful defendant? Is that a proper reason to have a hearing?” Griffith said.
“No,” Wall said.