Flynn had pleaded guilty in late 2017 to lying to the FBI, but in January moved to withdraw his plea. The Department of Justice (DOJ) in May moved to drop the charges against Flynn after conducting an internal review of the investigation.
Instead of approving the government’s motion, District Judge Emmet Sullivan took the extraordinary step of appointing an amicus curiae (friend of the court) to argue against the prosecution and to determine whether Flynn should be held in contempt for reversing his plea. Flynn’s attorneys filed an emergency petition for a writ of mandamus with the appeals court to order Sullivan to approve the motion to dismiss the case. The appeals court heard oral arguments from attorneys for Flynn, Sullivan, and the DOJ last week.
“It is ordered that Flynn’s petition for a writ of mandamus be granted in part,” the appeals court order stated. “The district court is directed to grant the government’s motion to dismiss.”
One of the three judges on the appeals court panel dissented from the decision. U.S. Circuit Court Judge Robert Wilkins had already indicated his opposition to Flynn’s request during the oral arguments. Wilkins argued, in part, that the appeals court overstepped its authority by ordering the district court to rule on a motion before giving the court time to conduct its own hearing (scheduled by Sullivan on July 16) and issue its own ruling.
Appeals court Judges Neomi Rao and Karen Henderson sided with Flynn.
Rao, who authored the court’s opinion, noted that the decision to bring or drop prosecutions is solely in the discretion of the Executive Branch, which, in these situations, is entitled to a “presumption of regularity.” That means that unless there’s “clear evidence” to the contrary, the judge shouldn’t second-guess the government’s decision with further scrutiny.
“This is plainly not the rare case where further judicial inquiry is warranted,” Rao said.
She pointed out that “the government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt.”
New evidence has been revealed in the case bit by bit, most recently as the result of a review ordered in January by Attorney General William Barr.
Wilkins argued that the DOJ didn’t provide solid enough legal reasoning for why Flynn’s alleged lies shouldn’t count in this case.
But Rao said it isn’t up to the appeals court to question “whether the Executive’s legal theory [for dismissing the case] is ultimately correct, but whether the Executive has the constitutional discretion to end this prosecution—which for the reasons already discussed, it plainly does.”
She acknowledged that it “may sometimes be appropriate” for a judge to conduct a hearing before giving his leave to the government’s motion.
“However, a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions,” Rao said.
Wilkins argued that Sullivan hasn’t yet conducted the hearing, so there’s still a chance that he may not intrude on the executive branch’s authority.
“To the extent that any of the majority’s fears of intrusive inquiries are well-founded, they could easily be resolved by providing instruction to the District Court as to the metes and bounds of a permissible ... hearing,” he said.
Rao disagreed. Already during the oral argument, she opposed the idea to try to spell out what “precisely is on and off the table” in Sullivan’s situation, which seemed to her “like a lot of law to be making in a mandamus.”
In her opinion, she said that Sullivan’s appointment as amicus curiae of retired federal Judge John Gleeson, “who had publicly advocated for a full adversarial process,” already indicated the court’s “mistaken understanding of its role.”
She emphasized that Sullivan appointed Gleeson specifically to oppose the DOJ motion to dismiss.
“In other words, the court has 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,” she said.
Sullivan also opened the door to other amici to join the case, Rao added.
“We need not guess if this irregular and searching scrutiny will continue; it already has,” she said.
“The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the [Constitution’s] Article II charging authority,” she said. “Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.”
The appeals court didn’t grant Flynn’s request to reassign the district court judge in the case. Rao explained in the opinion that “the district judge’s conduct did not indicate a clear inability to decide this case fairly.”
“We decline to reassign the case to a new judge simply to grant the government’s Rule motion to dismiss,” Rao wrote.
President Donald Trump, who had long rooted for Flynn, celebrated the court’s decision on Twitter.
“Great! Appeals Court Upholds Justice Departments Request To Drop Criminal Case Against General Michael Flynn!” he wrote.
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