The decision Wednesday by a federal appeals court to allow the Justice Department to drop charges against former National Security Adviser Michael Flynn of making false statements to the FBI followed the law and prior precedents.
The 2-1 ruling by a panel of the U.S. Circuit Court of Appeals for the District of Columbia was a rebuke to U.S. District Judge Emmet Sullivan for acting improperly when he sought to block the Justice Department from ending its prosecution of the retired Army lieutenant general.
The appeals court ordered Sullivan to dismiss the case against Flynn immediately without additional review, throwing out Flynn’s guilty plea that was made after prosecutors threatened to file charges against his son. In legal parlance, the court ordered what is known as a writ of mandamus.
The majority opinion, written by Judge Neomi Rao, made clear that Sullivan had exceeded his authority when he refused to dismiss the case against Flynn despite a Justice Department decision to drop the charges and not prosecute the former national security adviser.
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The Justice Department filed a motion to dismiss the case after it concluded that Flynn should never have been charged with lying to FBI agents about his conversations with Russia’s ambassador to the United States during the transition period when Donald Trump was president-elect. The department argued that FBI agents shouldn’t have questioned Flynn about the call because their interview had no “legitimate investigative basis.”
In his role as the incoming national security adviser to President-elect Trump, Flynn had a lawful and proper telephone conversation with the Russian ambassador to the U.S., Sergey Kislyak. There is nothing unusual about officials working for a president-elect reaching out to officials in other countries who they will soon be dealing with as part of their jobs.
This was an unjustified prosecution that has shattered Flynn’s reputation and apparently drained all of his family’s financial resources.
After Flynn agreed to plead guilty to making false statements during the course of his interview with FBI agents he changed lawyers. Before Judge Sullivan handed down a sentence for Flynn’s guilty pleas to two charges, Flynn’s new lawyer, Sidney Powell, moved to withdraw his plea agreement.
Powell said the government had failed to produce exculpatory evidence – evidence favorable to Flynn that he could have used in his defense. That was a clear instance of prosecutorial misconduct.
A subsequent Justice Department investigation turned up “newly discovered evidence of misconduct” by the FBI. It also concluded that the FBI had no valid reason to interview Flynn in the first place, because it had no evidence he had broken the law.
As a result, the Justice Department told Judge Sullivan it could “no longer prove beyond a reasonable doubt that any false statements made by Flynn were material to a legitimate investigation – an element the government contends is necessary” to prove a case of lying to federal officials under the applicable law.
The Justice Department then filed a motion to dismiss the prosecution. The case should have ended there, with Sullivan granting the Justice Department motion to end Flynn’s prosecution.
But in a surprising move, Judge Sullivan refused to dismiss. Instead, he did something unprecedented and outside the procedural rules: he appointed a retired federal prosecutor and judge, John Gleeson, to file a friend of the court brief.
Sullivan instructed Gleeson to present arguments on why the prosecution shouldn’t be dismissed and whether Flynn should be held in criminal contempt for perjury because he changed his plea. Sullivan even invited other members of the public to file briefs in the case and scheduled a hearing for July 16.
Flynn lawyer Powell responded by filing for a writ of mandamus with the appeals court. Writs of mandamus are an extraordinary remedy, rarely granted, that ask an appeals court to order a lower court to do its duty properly.
Flynn asked the appeals court to order Judge Sullivan to grant the Justice Department’s motion to dismiss the prosecution; to vacate the appointment of Gleeson; and to assign the case to a different judge.
Flynn got what he needed from the three-judge panel: an order telling Sullivan to toss out the prosecution and canceling the appointment of Gleeson, who had displayed his bias when he wrote an op-ed attacking the Justice Department just before his appointment by Sullivan.
As Judge Rao pointed out, while Rule 48 of the Federal Rules of Criminal Procedure requires the approval of a court to dismiss a prosecution, the court’s discretion is very limited. Under Supreme Court precedent, the trial judge has no substantive role in deciding whether a prosecution should continue.
The only role of the trial judge is to protect a defendant – like Flynn – from “prosecutorial harassment,” such as when government prosecutors repeatedly dismiss and then refile charges against a defendant over the defendant’s objections.
That is certainly not the situation here, since Flynn agrees with the government’s motion to dismiss the case against him.
The appeals court further noted that the government’s motion includes “an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt.” The government’s “representations about the insufficiency of the evidence are entitled to a ‘presumption of regularity’… in the absence of clear evidence to the contrary.” In the Flynn case, there “is no clear evidence contrary to the government’s representations.”
All of this “forecloses” Judge Sullivan’s “proposed scrutiny of the government’s” decision to drop the prosecution, the appeals court found. Sullivan’s scheduling of a hearing to “question the bona fides” of the government’s decision is also improper because Sullivan has no authority to “superintend the prosecution’s charging decisions,” the appeals court ruled.
Decisions on whether to prosecute reside “fundamentally with the Executive, without the involvement of – and without oversight power in – the Judiciary,” the appeals court ruled. Scheduling a hearing and appointing Gleeson “constitute clear legal error” by Sullivan, according to the appeals court.
Usually, legal errors made by a judge like Sullivan are corrected on appeal. But here, his mistake “usurps a specific executive power” – prosecutorial decisions that are the “exclusive” power of the executive branch.
The appeals court found Sullivan’s appointment of Gleeson to be “troubling,” as was his “invitation to members of the public” to intervene in the case. Those actions put two “coequal branches of the Government … on a collision course,” the appeals court said.
The appeals court was also highly critical of Sullivan allowing Gleeson to file a brief accusing the government of “gross prosecutorial abuse” that was based on “news stories, tweets, and other facts outside the record” before the court.
The appeals court majority was also concerned that Sullivan’s actions would discourage the federal government from correcting its mistakes in the future. The court said in its decision that “each of our three co-equal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interests of justice.”
Because there is no remedy for Sullivan’s intrusion into the Justice Department’s “long-settled primacy over charging decisions,” the appeals court majority said it had no choice other than to grant the writ of mandamus and order Sullivan “to dismiss the charges against Flynn.”
The appeals court did, however, deny Flynn’s request to assign another judge to the case, which may not, or at least should not, make much difference because Sullivan has received his marching orders from the appeals court.
Hopefully, this is the end of the case and Flynn’s long legal nightmare. But it might not be if one of the other judges on the appeals court asks the full court to review the decision by the three-judge panel.
This was an unjustified prosecution that has shattered Flynn’s reputation and apparently drained all of his family’s financial resources. He no doubt now understands too well the chagrin expressed by President Ronald Reagan’s former Labor Secretary Ray Donovan, who after being acquitted of fraud and racketeering charges, asked: “Which office do I go to, to get my reputation back? Who will reimburse my company for the economic jail it has been in for two-and-a-half years?”