Andrew McCarthy: In Flynn case, next move will likely still come from Judge Sullivan

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In a much anticipated hearing Friday morning, a federal appeals court in Washington heard arguments on Michael Flynn’s plea for an order directing District Judge Emmet Sullivan to grant the Justice Department’s motion to dismiss the case against Flynn.

Having briefly served as President Trump’s first national security adviser, Flynn was targeted by the FBI’s Russia investigation despite the lack of any evidence that he was a clandestine agent. He was charged with one count of lying to investigators during the Mueller probe.

Following his guilty plea, the Justice Department disclosed investigative irregularities, exculpatory evidence, and prosecutorial misconduct, and moved to dismiss the case as one that should never have been pursued in the first place.

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Though the law requires Judge Sullivan to grant the motion in these circumstances, he has resisted doing so – appointing non-party “amicus” lawyers to help him conjure up a reason to keep the case alive, sentence Flynn, and perhaps even charge him with new crimes.

Under the circumstances, then, it was startling to hear Beth Wilkinson, the lawyer representing Sullivan at Friday’s hearing before the D.C. Circuit appeals court, suggest that there was no reason to believe that the judge will not simply dismiss the case if that’s what the law requires.

There was no reason, she asserted, for the higher court to intervene at this premature stage by issuing what’s known as a writ of mandamus. Flynn’s counsel, Sidney Powell, had moved for the writ. In this, Flynn is supported by the Justice Department, and thus Deputy Solicitor General Jeffrey Wall joined Powell at the hearing, trying to persuade the three-judge panel to grant the writ – or just dismiss the case on its own.

At times, the panel appeared sympathetic to Flynn’s plight; but it also seems reluctant to issue a mandamus writ, signaling an inclination to let Sullivan rule before taking any action.

With the advantage of being last to address the court, Wilkinson prudently homed in on what, by then, was the panel’s most significant concern: Judge Sullivan has not taken any dispositive action against Flynn or DOJ – at least not yet.

Yes, Sullivan has refused to grant the dismissal motion … but he hasn’t denied it, either – he says he’s thinking about it. And sure, it was out of the ordinary for him to invite a flurry of amicus briefs in a criminal case … but the panel pried out of Powell a concession that Sullivan might have inherent discretion to invite non-parties to weigh in – even if, as Powell forcefully contended, it was improvidently exercised in Flynn’s case.

And to be sure, Sullivan did commission an overt anti-Trump partisan, former federal judge John Gleeson, to file a brief opposing the Trump Justice Department’s dismissal motion – a brief so venomous and political that Friday’s presiding judge, Karen LeCraft Henderson (a Bush-41 appointee), was moved to describe it as “intemperate” and “over the top.”

Yet, the court seemed to buy Wilkinson’s claim that the Gleeson polemic is just “advice” – Wilkinson made no effort to defend it and intimated that Sullivan might well ignore it.

To summarize: For all the atmospherics now surrounding the dismissal motion, all Sullivan has really done so far is invite briefing and scheduled a July 16 hearing.

Since he has not yet denied the motion, and ultimately may not, the panel wondered why it should get involved at this stage. Why shouldn’t it just wait to see what happens on July 16?

It is a fair question, if not necessarily an honest one.

Mandamus is an extraordinary remedy, to be invoked only rarely when a court commits an egregious error that will do real harm if not promptly corrected.

Not only does the Justice Department generally frown on mandamus; it failed to seek the writ in this very case.

That caused a few uncomfortable moments for Wall, the stellar deputy solicitor general.

He was left to rationalize how DOJ could now insist the writ is necessary when it was Powell, not DOJ, who filed the petition.

Wall countered that DOJ quickly and vigorously supported the petition and that the merits did not turn on which aggrieved party made the motion.

The aggrieved, he deftly added, included the judiciary itself: Sullivan’s shenanigans have deeply enmeshed the court in a political controversy.

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So, while it’s true that Judge Sullivan has not done as much harm as he could do if his antics continue, it blinks reality to maintain, as Wilkinson does, that there’s no reason to suppose he’ll refuse to do his duty in the end. Yet, the panel seemed prepared to give Sullivan the chance to prove her right.

The central problem here is the governing rule. As I’ve explained, that provision – Rule 48(a) of the Federal Rules of Criminal Procedure – purports to require “leave of the Court” before the Justice Department may dismiss a criminal case.

This requirement is almost certainly unconstitutional. In our system, prosecution is an executive branch function, and thus the Justice Department has unilateral discretion to decide whether to commence or persist in a prosecution.

Congress never likes to acknowledge that the executive branch has plenary power, so it sometimes writes statutes that ostensibly call for the Justice Department to obtain the court’s permission to do things that the Constitution empowers the executive to do.

To avoid constitutional disputes over such rules, federal jurisprudence construes the judicial role as merely ministerial, so the Justice Department complies without objection.

But every now and then, a court attempts to exercise the oversight authority Congress has purportedly vested in it. That is what Sullivan is doing in Flynn’s case.

So what does DOJ’s supposed need to obtain “leave of the court” empower Judge Sullivan to do?

The Justice Department and Flynn agree, at least for argument’s sake, that Rule 48(a) may permit some kind of cursory inquiry to ensure that the dismissal motion is made in good faith – although even that is questionable given that the judicial branch is supposed to accord its peer, the executive branch, a presumption of regularity. But beyond that, there is no consensus.

Flynn and DOJ sensibly argue that, at most, the “leave of the court” provision is meant to protect the defendant from DOJ abuse of its dismissal power – e.g., by practices that violate due process, such as dismissing a case without prejudice in order to recharge it later, at a time more advantageous to prosecutors. There is no such potential for abuse in Flynn’s case because the parties are in agreement that the case should be dismissed with prejudice (i.e., with no further possibility of prosecuting Flynn on the dismissed charge).

Under questioning by the panel, Wall theorized that a court might have the power to decline a dismissal that was based on a constitutionally offensive motive.

This brings us to the strangest exchanges of the session, pressed by Judge Robert Wilkins, an Obama appointee who was manifestly sympathetic to Judge Sullivan’s desire to scrutinize the dismissal motion.

Judge Wilkins repeatedly posed the following hypothetical: a white police officer is indicted after using excessive force against a black arrestee; prosecutors then calculate that a jury drawn from the jurisdiction would be more inclined to believe the white cop over the black victim, so they dismiss the case.

Friday’s oral argument was certain to garner media and public attention.

Evidently, Judge Wilkins figured it was an opportune moment to tap into the current anger over George Floyd, an African-American man killed by a white police officer.

No matter how mulishly determined the judge was to keep posing the hypothetical, though, it has utterly nothing to do with Flynn’s case. There is no racial angle in the prosecution. There is not a scintilla of evidence that any constitutionally wayward incentive drove DOJ’s dismissal decision.

As Wall pointed out, the Justice Department does not need to give any reason to dismiss a criminal case; yet, it volunteered an elaborate showing that Flynn had been subjected to investigative abuse.

Moreover, even if the Justice Department’s underlying reason was objectionable, that would not make it unconstitutional. And even if it were unconstitutional, that would not make refusal to grant a dismissal motion the appropriate remedy – instead, for example, the court might dismiss other cases the Justice Department sought to prosecute.

In any event, however, the court has no power to force the executive to bring a case or persist in a prosecution once it has commenced.

That was the principle Sullivan’s counsel had a tough time tackling. Judge Naomi Rao, a Trump appointee, pressed Wilkinson on what exactly would happen if Judge Sullivan denied Rule 48(a) motion.

After all, sentencing is not just a judicial function; it is a stage in a criminal prosecution and federal law contemplates that the prosecution must participate in it.

Given that the court has no power to force the Justice Department to prosecute, how would Sullivan proceed with Flynn’s sentencing? What would happen if the court tried to impose a prison sentence (which could only be executed by the Justice Department)?

Wilkinson mainly deflected these questions. Rather than speculate on what-ifs, she maintained that there was no reason at this point for the appellate court to presume that Judge Sullivan will not grant the dismissal motion.

That was the appropriate answer, but it was certainly not the response one would have anticipated based on Judge Sullivan’s appointment of Gleeson to advise the court on such matters as whether he may ignore DOJ’s dismissal motion, sentence Flynn, and maybe even appoint a special counsel to prosecute Flynn for criminal contempt (on the theory that Flynn must have lied when he pled guilty).

It was in that vein that Wilkinson had her most difficult moments of the session. Rao pushed her on whose interests, precisely, Gleeson was representing in the case.

Wilkinson replied with a feeble tautology: criminal cases are adversary proceedings, so Judge Sullivan simply appointed Gleeson to represent the position adversary to DOJ’s.

Rao brushed this aside, pointing out the obvious: The adversaries in a criminal case are the government and the defendant. When they are aligned on an issue – as frequently happens in criminal cases, such as when there is a plea bargain or some other agreement to dispose of the case – that does not mean the court gets to bring in a new adversary so the proceeding can remain adversarial.

Wilkinson shifted, positing that Gleeson could be seen as representing a judicial interest in the proper administration of Rule 48(a).

That, however, is just an obscure way of saying there is a judicial interest in examining and potentially second-guessing a good faith Justice Department decision to drop charges.

There is not.

Still, it does not appear that the D.C. Circuit court is prepared, at least at this point, to direct the lower court to dismiss the case.

I believe, out of respect for the experienced district judge, the panel will stay its hand and let the July 16 hearing go forward. But in doing so, the appellate court may find a not so subtle way to remind Judge Sullivan that Wilkinson, his chosen counsel, effectively committed that the judge would follow the law – that what she called the “parade of horribles” predicted by the Justice Department would not come to pass.

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If there are more antics – if, say, Judge Sullivan were to order the Justice Department to file affidavits, or he were to convene a hearing at which DOJ officials were called to testify about their motives – I would expect DOJ to submit a new mandamus petition forthwith.

That one would get an audience more receptive than the panel was on Friday.

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