A three-judge panel for the United States Court of Appeals for the District of Columbia Circuit has ruled that a lower court judge’s original demands, seeking out justifications from the government for why the Department of Justice (DOJ) was dropping its case against Michael Flynn, were inappropriate, in essence giving the DOJ the go-ahead to let Flynn go without any charges at all.
Flynn was originally charged with lying to the FBI about conversations he had with Russia’s ambassador to the U.S. The bureau had been investigating the then-incoming Trump administration official about those conversations as part of its inquiry into Russia’s interference in the 2016 presidential race.
Flynn, who was President Donald Trump’s first National Security Advisor, was fired from that role less than a month into the president’s tenure. He eventually pleaded guilty with the DOJ on the charges of lying to the FBI.
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However, in May of this year, the DOJ abruptly moved to drop Flynn’s case, despite his guilty plea. The reversal of the DOJ’s initial decision to charge Flynn came after Attorney General William Barr said the FBI didn’t have a valid reason to question him at the time, in essence viewing any lies he told to agents as irrelevant to the investigation at hand. The choice to drop the case was viewed by critics as motivated by political factors, as Trump has continued to support Flynn throughout the legal saga.
The judge overseeing that case, however, wouldn’t allow it to be dropped so quickly, pointing out that the DOJ didn’t give ample reason, in his view, to do so, especially since the guilty plea had already been entered. Judge Emmet Sullivan instead said he would appoint a retired judge to argue against the government’s decision to drop the charges against Flynn.
That prompted Flynn’s lawyers to appeal the case to the higher court. The D.C. Circuit Court’s ruling on Wednesday was a 2-1 decision, with Judge Neomi Rao, a Trump appointee, delivering the opinion of the court.
“In this case, the district court’s actions will result in specific harms to the exercise of the executive branch’s exclusive prosecutorial power,” Rao wrote. “The contemplated proceedings would likely require the executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority.”
There is a possibility that the decision could be appealed, however, to the D.C. Circuit Court en banc, or in full, with all active judges on that court weighing in. Some legal experts on social media suggested doing so was wholly appropriate, given the questionable grounds being cited in the opinion favoring the administration.
Harvard Law professor Laurence Tribe, responding to a tweet from former DOJ lawyer Joshua Geltzer, expressed the need for an appeal because the ruling was “astonishing” and a “travesty,” in his mind.
An “en banc review seems mandatory,” Tribe added.
Geltzer himself explained why the decision was particularly jarring to him, citing an excerpt of Rao’s opinion that stated the original decision from Sullivan “threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry.”
“What the majority calls a ‘chill,’ many of us call transparency, judicial responsibility, & Rule 48,” Geltzer said, referring to a federal rule that describes how the Department of Justice may drop a case.
Former United States Acting Solicitor General Neal Katyal also called for further review of the circuit court’s decision. “This is a terribly weak, and profoundly antidemocratic, decision,” Katyal wrote. “The full DC Circuit should hear the case immediately.”
Susan Hennessey, executive editor of Lawfare, also responded to a tweet, but in a critical way, from Press Secretary Kayleigh McEnany, who said the dismissal was “a VICTORY for justice and truth.” That conclusion, Hennessey explained, was “an exceptionally bizarre and dishonest reading” of the ruling.
“The issue is about a federal court’s ability to get answers regarding politicization and irregularity in DOJ decision making. It is in no way a substantive vindication of Flynn,” Hennessey said.
Others noted that the D.C. Circuit Court seemed to answer a question that was never asked in the first place, ignoring the true point of the appeal in the first place. “The only real constitutional question in this case was what power does a judge possess after a guilty plea has been answered, and the DC Circuit just didn’t answer that question,” University of North Carolina criminal law professor Carissa Byrne Hessick opined.
If an en banc appeal is pursued, there is a high possibility that the decision rendered on Wednesday may be overturned. Of the 11 active judges on the D.C. Circuit Court, seven were appointed by former Presidents Bill Clinton and Barack Obama. Two were appointed by Trump, one by former President George W. Bush, and one by George H. W. Bush.