The U.S. Court of Appeals for the D.C. Circuit ordered Wednesday that U.S. District Judge Emmet Sullivan dismiss Michael Flynn’s case.
The majority opinion, written by Trump-appointed Judge Neomi Rao, backed Flynn’s version of events and fully bought the Justice Department’s claims for why it is now seeking the case dismissed. It shut down any efforts by the judiciary to probe evidence of prosecutorial misconduct on behalf of a President Trump ally and set an extraordinarily high bar for when a judge can be skeptical of the motives of the Justice Department as long as the defendant agrees with the approach the Department is taking.
Judge Robert Wilkins, an Obama appointee and the only Democratic-appointed judge on the three judge appellate panel, dissented.
Flynn had asked the appeals court to intervene when, instead of immediately granting the Justice Department’s request to drop the case, Sullivan appointed an outside party to oppose the dismissal request as a friend of the court.
Rao said that such “inquiry” into the Justice Department’s reasons for wanting to dismiss the case was not “justified.”
“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” the majority opinion said. “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.”
Rao said that the appeals court’s intervention was necessary now — even though Sullivan had not yet denied the dismissal request — because there will be “irreparable harms” to the Justice Department with the efforts to “scrutinize the reasoning and motives.” An appeal at a later stage of the proceedings, she wrote, will not remedy those harms.
In his dissent, Wilkins ripped the majority for intervening before Sullivan had taken affirmative action to deny the dismissal request.
“It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own,” he wrote.
He also critiqued Rao’s arguments that the Justice Department was entitled to a presumption of regularity in these circumstances, despite its shocking move to drop the case after the months it had spent defending the prosecution.
“This is no mere about-face; it is more akin to turning around an aircraft carrier,” Wilkins wrote.
It’s unclear if Wednesday’s order will be the last word on how Sullivan should be allowed to handle the effort to drop the case. Almost every development of the last two months has brought the case further into uncharted territory, and the stakes for this case are incredibly high, with implications for the judiciary’s ability to probe potential corruption related to how the Department is handling cases involving the President’s allies.
Flynn pleaded guilty in Dec. 2017 to lying to the FBI about his late 2016 contacts with Russia, and affirmed that plea again in front of Sullivan in Dec. 2018. But the following summer, he replaced the lawyers who negotiated his plea deal with a legal team led by a prominent FBI critic. After months of ramping-up tension between him and the Justice Department, Flynn then accused the Department of prosecutorial misconduct while he sought to withdraw his plea and get his case dismissed.
Until May, the Department opposed that effort. In reversing course, it claimed that new information had prompted doubts as to whether the Department could prove that Flynn’s lies to the FBI were material to the FBI’s Russia probe. Its reasons for that doubt cut against the posture the Department has almost always taken in similar cases. The career DOJ attorneys who had been leading the prosecution did not sign on to the request that the case now be dismissed.
The majority opinion fully embraced the idea that there was “misconduct by the Federal Bureau of Investigation” and that there was “newly discovered evidence” that cast “Flynn’s guilt into doubt.”
“On the record before the district court, there is no clear evidence contrary to the government’s representations,” Rao wrote. “The justifications the district court offers in support of further inquiry—for instance, that only the U.S. Attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions—are insufficient to rebut the presumption of regularity to which the government is entitled.”
She critiqued Sullivan’s selection of John Gleeson — a former judge and ex-prosecutor — to oppose the dismissal motion, because Gleeson had already “publicly advocated for a full adversarial process.”
Sullivan’s and Gleeson’s recent actions “foretell not only that the scrutiny will continue but that it may intensify.”
Noting that Gleeson had “encouraged the district court to scrutinize the government’s view of the strength of its case—a core aspect of the Executive’s charging authority,” Rao claimed that “our cases are crystal clear that the district court is without authority to do so.”
In addition to ordering that the dismissal request be granted, the appeals court also reversed Sullivan’s appointment of Gleeson. However, the court denied a request by Flynn that the case be reassigned to another judge.
Whether the order will stand is unknown. There is nothing typical about how this dispute was brought to the appeals court and what to expect next. Because the DOJ and Flynn are on the same side in seeking the case’s dismissal, the judge is on his own to defend his move to bring in an outside party to scrutinize that request. However, there appears to be a possibility that the full D.C. Circuit of Appeals — where a majority of the judges are Democratic-appointees — could vote to review Wednesday’s order even without the judge requesting a rehearing.
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