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HomeUncategorizedTrump Judge Neomi Rao’s attempt to bail out Michael Flynn ends in...


A federal appeals court’s 8-2 decision in In re: Michael T. Flynn, handed down Monday, affirms — over the objection of two right-wing judges — that the ordinary rules that apply to any other litigant also apply to President Trump’s former national security adviser. Michael Flynn, a former general who briefly served as Trump’s top national security aide, won’t be able to have criminal charges against him dropped before his case is heard by a federal trial judge.

It’s hardly an earth-shattering legal event. But the decision is significant because it unwinds a deeply radical opinion by one of President Trump’s most partisan appointees to the federal bench.

It remains likely that Flynn will escape federal charges that he lied to the FBI. And it is likely that he will do so even though he once pleaded guilty to those charges.

But Flynn, at the very least, will not get a special exception to the rules governing criminal appeals.

Flynn tried to bypass the trial judge hearing his case

The facts underlying Flynn’s case are, to say the least, unusual. In 2017, Flynn pleaded guilty to lying to the FBI regarding his contacts with Russian Ambassador Sergey Kislyak. Nearly three years later, however, Trump’s Justice Department decided to drop the charges against the former Trump aide. Though DOJ admits that Flynn lied to investigators, the Justice Department now claims that these lies could not have “conceivably ‘influenced’ an investigation that had neither legitimate or counterintelligence or criminal purpose.”

It is highly unusual for prosecutors to drop charges years after obtaining a guilty plea. And the Federal Rules of Criminal Procedure only permit the government to dismiss a prosecution “with leave of court.” So Judge Emmet Sullivan, the trial judge presiding over this case, decided to hold a hearing to address how he should proceed — and to consider whether Flynn should be held in contempt for perjury, a charge the court may pursue without DOJ’s consent.

Additionally, Sullivan asked a court-appointed lawyer to argue the case against Flynn, a common practice when parties appearing before a court have presented important arguments at the heart of that case.

Judge Sullivan has yet to hold his hearing. And he hasn’t ruled at all on whether the prosecution against Flynn should be dismissed. It is possible — likely, even, since judges ordinary defer to prosecutors who wish to dismiss a case — that Sullivan will allow the original charges against Flynn to be dropped. Should Sullivan rule against Flynn, Flynn always has the option of appealing that decision to the United States Court of Appeals for the District of Columbia Circuit — the same court that ruled against him on Monday.

But Flynn felt that he should not have to comply with the ordinary process that governs nearly every case that is heard by a federal district court. Typically, the trial judge hears a case, decides it first, and then the case may be heard by an appeals court after the trial judge rules. Instead, Flynn sought what is known as a “writ of mandamus,” a rarely granted court order that sometimes allows an appeals court to intervene against a trial judge’s wishes.

In any event, the upshot of the DC Circuit’s decision in Flynn is that Flynn will have to comply with the same procedural rules as anyone else. Quoting from a 1967 Supreme Court opinion, the court explains that “a petition for a writ of mandamus ‘may never be employed as a substitute for appeal.’”

Rather, mandamus relief is only available if “the party seeking issuance of the writ [has] no other adequate means to attain the relief he desires.” Because Flynn has another means available to him — he can argue his case before Judge Sullivan, then appeal Sullivan’s decision if he doesn’t like it — mandamus relief is inappropriate.

The case only made it this far because of two outlier judges

The DC Circuit’s Flynn ruling is a fairly rudimentary application of longstanding law. So rudimentary, in fact, that it’s surprising that the full DC Circuit needed to consider this case at all.

The overwhelming majority of federal appeals court cases are heard by three-judge panels, whose members are selected randomly from among the court’s judges. In this case, Flynn briefly caught a lucky break because his panel included two extremely conservative judges: Judge Karen Henderson, a George H.W. Bush appointee who sometimes took positions to Justice Brett Kavanaugh’s right when the two served together on the DC Circuit; and Judge Neomi Rao, a recent Trump appointee who’s authored several dubiously reasoned decisions benefiting Trump or the Trump administration.

After Henderson and Rao voted to grant mandamus relief to Flynn, the full court stepped in to override that decision. Indeed, the full DC Circuit appears to have been so troubled by Henderson and Rao’s decision that they invoked an extraordinarily rare process to do so.

Less than 0.3 percent of all federal appeals court cases are heard “en banc,” the legal term for a full court hearing, according to a 2011 analysis of cases receiving en banc review. Most of these cases, moreover, are heard en banc because the party that lost the case before a three-judge panel asked the full court to reconsider the case.

Yet in Flynn, the court disclosed that it decided to hear this case en banc “based on a suggestion of a member of the court.” Thus, Henderson and Rao’s colleagues appear to have decided, without needing to be prompted, that the two judges’ decision could not stand.

That means that Rao wound up writing a dissenting opinion that was released on Monday, where she makes her best effort to defend her original decision benefiting Flynn. The crux of her argument is that Flynn is entitled to special treatment because failing to grant him mandamus relief would upset the separation of powers.

“In our system of separated powers,” Rao claims in her dissent, “the government may deprive a person of his liberty only upon the action of all three branches: Congress must pass a law criminalizing the activity; the Executive must determine that prosecution is in the public interest; and the Judiciary, independent of the political branches, must adjudicate the case.”

Thus, Flynn must prevail because “the prosecution no longer has a prosecutor.”

It is possible that, once this case winds its way through the courts, Judge Sullivan or maybe even the DC Circuit will agree with Rao on this point. Again, the question in Flynn was whether Sullivan is allowed to hold a hearing before he decides whether to dismiss the charges against Flynn — not whether those charges may be sustained over DOJ’s objections.

But there is also very good reason to doubt Rao’s theory of the separation of powers. It is simply untrue that the executive branch must, as a constitutional matter, participate in prosecutions. To the contrary, the modern system where federal prosecutions are typically initiated by executive branch officials in the Department of Justice is a fairly recent development.

As Fordham law professor Jed Shugerman explained in a 2019 article, for much of the nation’s history, the power to bring prosecutions wasn’t even limited to the government. As Shugerman writes, “for much of English and American history, most prosecution was not an executive function at all because it was a private enterprise.”

Indeed, prosecutions led by lawyers in private practice were the norm for decades after the Constitution was ratified. “The vast majority of American prosecutions were still private through the mid-nineteenth century,” Shugerman explains, “as Allen Steinberg and many other historians have demonstrated.”

The Senate’s draft of the Judiciary Act of 1789 gave federal district judges — not the president — the power to appoint federal prosecutors. And the final version of that law allowed many federal law enforcement officers to be removed by judges. Current law permits federal district judges to appoint interim US attorneys (though only after a temporary appointee named by the attorney general has served for 120 days).

So Rao’s reasoning is, at best, anachronistic. It ignores much of our nation’s early legal history. And it even potentially endangers many modern prosecutions that are led by judicially appointed prosecutors.

Her reasoning also garnered little support from her colleagues. And, given that the law is very clear that Flynn must follow the ordinary process if he disagrees with Sullivan’s decision, it is unlikely — though certainly not impossible — that the Supreme Court will step in to grant mandamus relief to Flynn.

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