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“A divided federal appeals court on Wednesday ordered the dismissal of the criminal case against President Donald Trump’s former national security adviser Michael Flynn… U.S. District Judge Emmet Sullivan had declined to immediately dismiss the case, seeking instead to evaluate on his own the department’s request. He appointed a retired federal judge to argue against the Justice Department’s position… Judge Neomi Rao, a Trump nominee who was joined by Judge Karen LeCraft Henderson, wrote that Sullivan had overstepped his bounds by second-guessing the Justice Department’s decision.” AP News
See our prior coverage of Michael Flynn here and here. The Flip Side
The right supports the decision, arguing that it correctly applies precedent, and that Flynn’s case should be dismissed.
“The key quote from Judge Rao’s opinion is from Fokker [a DC Circuit case from 2016]: Rule 48 ‘gives no power to a district court to deny a prosecutor’s … motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority.’ Those words came from Judge Sri Srinivasan, an Obama appointee. Judges do have some leeway to review a prosecutorial decision. But such authority is at its lowest ebb when the executive branch uncovers an injustice or mistaken prosecution…
“As Judge Rao notes, Judge Sullivan far exceeded that authority when he appointed Mr. Gleeson not only to advise him on the law but to reinvestigate the facts of the prosecution. Mr. Gleeson had written an op-ed advocating continued prosecution before Judge Sullivan appointed him, and he wrote his own brief against the writ of mandamus to the appellate court… Judges Rao and Henderson deserve credit for a courageous decision that restrains a lower court when it exceeds its constitutional authority, and does right by a man who was unjustly prosecuted.”
Editorial Board, Wall Street Journal
“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.”
Andrew C. McCarthy, National Review
“If Flynn’s treatment were an anomaly, perhaps it could be explained away. It wasn’t. A federal court vacated two warrants to eavesdrop on another Trump campaign aide, Carter Page, after the Justice Department’s inspector general found profound omissions and factual errors in the warrant applications. Earlier this month, former Deputy Attorney General Rod Rosenstein acknowledged that his initial 2017 ‘scope memo’ for special counsel Robert Mueller’s investigation was deeply flawed, conceding that when he wrote it, the FBI had no evidence that the Trump campaign had colluded with Russia at all…
“None of this detracts from the very real evidence that Trump himself has tried to subvert the independence of the Justice Department… Rather, it’s a warning that when a political opposition refashions itself into a ‘resistance,’ it becomes too easy to justify abuses to achieve a greater good. This is what happened at the FBI and Justice Department during the presidential transition and in the first years of the Trump presidency. Sadly, Democrats today are too busy resisting Trump to see the injustices done to his first national security adviser, and the long-term danger such excesses pose to us all.”
Eli Lake, Bloomberg
“Short of an order of actual recusal of a judge, a mandamus order is the most stinging indictment of the handling of a case that can come from an appellate court. [But] the ruling in this case is unlikely to force any real circumspection by legal analysts or the media in the prior coverage. Nuanced legal questions quickly evaporate in this age of rage. Conflicting case law is dismissed in favor of the clarity demanded by echo journalism. The law however brings its own clarity and the message of this opinion could not be clearer. Sullivan’s actions in the case did not spell 'trouble’ for the Trump administration [as some had predicted], but rather, they spelled trouble for the administration of justice in our court system.”
Jonathan Turley, USA Today
“Now the question will be whether this goes any further. Sullivan hired outside counsel to represent him in this appeal, an extraordinary (but not entirely unprecedented) move. Does that signal his willingness to keep fighting, even with both parties to this prosecution in agreement on dismissal? Sullivan could theoretically demand an en banc hearing [before the entire appellate court], or appeal to the Supreme Court. He’d have a lot more luck with the former over the latter, but the odds are long either way.”
Ed Morrissey, Hot Air
The left opposes the decision, arguing that the dismissal of Flynn’s case is extraordinary, and that the case should continue.
The left opposes the decision, arguing that the dismissal of Flynn’s case is extraordinary, and that the case should continue.
“After only 24 days on the job, Flynn was dismissed by President Trump, who explained in a December 2017 tweet: ‘I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies.’ That was then. But in Attorney General William P. Barr’s Justice Department, the past can be miraculously rewritten. Guilty pleas can be erased… Here’s hoping the entire U.S. Court of Appeals for the D.C. Circuit insists on reviewing this scandalous decision and overturns it.”
E.J. Dionne Jr., Washington Post
“The ‘drastic and extraordinary remedy’ sought by Flynn is known as a ‘writ of mandamus.’ As Judge Robert Wilkins explains in a dissenting opinion, appeals courts may only grant mandamus relief if the person seeking such relief has ‘no other adequate means to attain the relief he desires’ and ‘his right to the issuance of the writ is ‘clear and indisputable.’’ But Flynn absolutely has another adequate means to obtain the primary relief he seeks in this case…
“Flynn and his lawyers can argue their case before Judge Sullivan. If Sullivan agrees to dismiss the charges, Flynn wins! If Sullivan does not dismiss the charges, Flynn can then appeal this case to the DC Circuit, which may very well rule in Flynn’s favor once the case is properly before that court. Nor is Flynn’s right to mandamus relief ‘clear and indisputable.’ To the contrary, the DC Circuit held in 2015 that ‘mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.’ Thus… the two judges in the majority, Rao and Henderson, ignored the very strict limits preventing their court from issuing a writ of mandamus.”
Ian Millhiser, Vox
“Flynn’s case has become a right-wing cause célèbre, with President Trump and his supporters routinely claiming Flynn was the innocent victim of a rogue FBI. The Justice Department’s abrupt reversal, therefore, raised questions about whether Flynn was receiving favorable treatment because of his connections to the president… The appeals court rightly pointed out there is a ‘presumption of regularity’ afforded prosecutorial decisions. But presumptions, by definition, may be overcome. The Justice Department’s decision to drop Flynn’s case appears highly irregular…
“Sullivan’s hearing could have at least cast some sunlight on the administration’s actions, even if he ultimately granted the motion. Through that check and balance, the judge could have provided the public with valuable information it could use to evaluate the performance of Trump’s Justice Department. But the appeals court has now foreclosed any judicial examination of whether Flynn’s dismissal may be based on improper political considerations.”
Randall D. Eliason, Washington Post
“John Gleeson, a former federal judge appointed by Sullivan to contest the Justice Department’s motion to dismiss the case against Flynn, accused the department of a ‘gross abuse of prosecutorial power.’ Gleeson added that the government ‘has engaged in highly irregular conduct to benefit a political ally of the president.’ Sound familiar?…
“On Wednesday the House Judiciary Committee heard from Aaron Zelinsky, a federal prosecutor on the team involved in the case of Trump associate Roger Stone, who was convicted of witness tampering and lying to Congress. Zelinsky said he was told that the acting U.S. attorney in Washington, D.C., ‘was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break’ in sentencing. It’s hard not to see a pattern here. Congress needs to be equally aggressive in investigating how and why Flynn was spared the consequences of his actions.”
Michael McGough, Los Angeles Times
“Under all but extreme circumstances, it is up to prosecutors to decide what to prosecute — an essential executive branch function. But in this case, there is substantial reason to question the government’s conduct… the decision to drop the Flynn case is not simply business as usual. It reeks of political manipulation at the highest levels of the United States government. The full appeals court should overrule the three-judge panel and allow Judge Sullivan to proceed with the hearing, rule on the prosecution’s request and go ahead with sentencing if he thinks it warranted.”
Editorial Board, Washington Post
