U.S. District Judge Emmet G. Sullivan cannot scrutinize the Justice Department’s decision to drop its long-running prosecution of President Trump’s former national security adviser Michael Flynn and must dismiss the case, a federal appeals court ruled Wednesday.
In a 2-1 decision, the court said it is not within the judge’s power to prolong the prosecution or examine the government’s motives for its reversal in the politically charged case. Flynn twice pleaded guilty to lying to federal agents about his pre-inauguration contacts with Russia’s ambassador before the Justice Department moved in May to dismiss the charges.
“This is not the unusual case where a more searching inquiry is justified,” wrote Judge Neomi Rao, a recent nominee of the president, who was joined by Judge Karen LeCraft Henderson.
Barr has been getting a lot of attention lately, but I want to give a big shout-out to Mitch McConnell and the judges he’s pushed through the Senate on this one.
Citizen Alan
Butter emails.
schrodingers_cat
Flynn case could still be heard by full DC Circuit
twitter.com/steve_vladeck/status/1275796826822754307
donnah
It’s appalling. But this is what stacking the courts has done and we seem powerless to stop this and any other serious cases from being ruled by Republican puppets. The rule of law is more damaged every day in the hands of these corrupt judges.
Baud
@schrodingers_cat:
Doubt it’ll happen. Flynn was almost certainly going to walk anyway. The DC Circuit just short circuited the process. The other judges aren’t going to want to drag this out.
SFAW
Meanwhile, the Traitor-/Murderer-/Coward-in-Chief told the
Hitler/Trumpenjugendhis brownshirts that the election will be the “most corrupt” in history.Elizabelle
@schrodingers_cat: And I hope that they will. It only takes a request from one judge, per that tweet.
Do not reward Bill Barr for bad behavior. Make him squirm more.
Elizabelle
@SFAW: Which, in TrumpSpeak, means the last one was.
SFAW
@Elizabelle:
I would LOVE to reward him for his behavior. For various alternative definitions of the word “reward.”
Jay Noble
Poop
SFAW
@Elizabelle:
Well, we already knew that. In this case, he’s telling us what he and his traitorous buddies are GOING/PLANNING to do.
ETA: And, as you know: with him, every accusation is a confession.
MomSense
WTF.
Elizabelle
@MomSense: Yup. HYBT? How you be today?
Omnes Omnibus
@Baud: Yeah, a quick read of the case indicates that the dissent was just focused on the timing of the order and would have allowed Sullivan to make a decision rather than ordering him to do it.
oldster
We knew that Rao was going to be an unprincipled hack, showing loyalty to Trump above loyalty to the law or Constitution,
This absurd decision should be the basis for the first charge in her impeachment.
MattF
Flynn is crazy, though, so it’s debatable what going to prison would accomplish. Maybe he can try out for the job of Trump’s next campaign manager.
Marcopolo
We are truly now living in a Banana Republic. The slide into this condition has happened a lot faster than I ever imagined. November 2020 is our last/only chance to recover from where we are. Let’s all keep working our a$$es off to make sure we win this for ourselves & our country.
West of the Cascades
@Baud: I think there’s a good chance for a vote to rehear this en banc. Without reading the opinion, I’m assuming that this is a gross misapplication of the law governing mandamus, which is supposed to be granted in only very rare and extreme circumstances. Cutting off a judicial inquiry like Sullivan was proposing shouldn’t be one of them. So there are two “questions of exceptional importance” here – whether DOJ corruptly moved to dismiss the suit against Flynn, and whether the panel correctly applied mandamus law. Democratic appointees still hold a 7-5 majority among active judges on the DC Circuit (I don’t know if any would be disqualified).
Edmund Dantes
If Judicial reform is not one of the top priorities of a Dem Trifecta, then nothing else they do will survive the courts.
SFAW
Someone should ask Susan Collins whether she still thinks Trump “learned his lesson.”
Well, not really, because she’d just utter some mealy-mouthed bullshit.
Elizabelle
The three who heard the case: TrumpJudge Neomi Rao, no surprise there.
Second who voted to dismiss: Karen Henderson, GHWBush appointee and, per the NY Times:
Using a rarely invoked rule — seems about perfect for this time of lawlessness. Come on, judges.
SFAW
@West of the Cascades:
They ALL would, because they’re Demon-rats.
Omnes Omnibus
@West of the Cascades: I hope you are right. I fear Baud is.
ETA: I think one of the biggest issues here might be that Rao thought that the DOJ decision to drop the charges deserved a presumption of regularity.
Elizabelle
Here’s a list of the judges on the DC Circuit along with, conveniently, their phone numbers. You know what you have to do.
Judges
Sri Srinivasan, Chief Judge
216-7080
Karen LeCraft Henderson
Judith W. Rogers
216-7260
David S. Tatel
216-7160
Merrick B. Garland
216-7460
Thomas B. Griffith
216-7170
Patricia A. Millett
216-7110
Cornelia T.L. Pillard
216-7120
Robert L. Wilkins
216-7240
Gregory G. Katsas
216-7220
Neomi Rao
216-7180
Harry T. Edwards
216-7380
Laurence H. Silberman
216-7353
Stephen F. Williams
216-7210
Douglas H. Ginsburg
216-7190
David B. Sentelle
216-7330
A. Raymond Randolph
216-7425
Elizabelle
My comment’s in moderation. The names of the judges, along with links to their bios and phone numbers.
hueyplong
@SFAW: Trump absolutely learned the lesson made clear by the GOPers in the Senate. The lesson is that no one is going to stop him.
Susan Collins expressly authorized today’s decision.
Expect Flynn back in the White House soon
And let’s not forget that Trump couldn’t have thought of the maneuver that cuts Flynn loose. That’s a Barr production. This is the Trump/Barr administration, and you can expect it to do even worse things so long as they’re in place.
Imagine what it would be like had the House not been flipped.
randy khan
@Omnes Omnibus:
I just read the dissent, which is pretty blistering as these things go.
It is, as you say, focused on the question of whether the appeals court had any reason to act before the district court hearing, but that’s actually the central issue in the case – Flynn said there can’t be a hearing at all, so the judge should be directed to vacate the conviction and let Flynn walk away.
I think it’s pretty rare for a judge to ask for the whole circuit court to hear a case, but if there’s a time when it might happen, it would make sense here. The notion that a court can’t even hold a hearing seems bizarre. (And, from our perspective, dragging this out would be good for many reasons.)
West of the Cascades
@SFAW: Heh. I should add that (again without having read the opinion) I think that one of the controlling issues here should be that the Rule of Criminal Procedure related to dismissal (Rule 48) provides that the government may dismiss an indictment only “with leave of court.” That presupposes that the judge is not a rubber-stamp on a motion to dismiss — part of why it’s particularly important that the full DC Circuit review this. The Rules Advisory Committee which put this requirement in place (in 1944) knew it was changing the previous prevailing law that a prosecutor could dismiss a case without the court’s leave – this from the Advisory Committee notes:
(a). 1. The first sentence of this rule will change existing law. The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court, prevails in the Federal courts, Confiscation Cases, 7 Wall. 454, 457; United States v. Woody, 2 F.2d 262 (D.Mont.). This provision will permit the filing of a nolle prosequi only by leave of court. This is similar to the rule now prevailing in many States. A.L.I. Code of Criminal Procedure, Commentaries, pp. 895–897.
MomSense
@Elizabelle:
Ok. Turns out I have strep. Started antibiotics and hopefully they will kick in right away.
Thanks for asking.
West of the Cascades
@randy khan: I’m sure you know this, but for others listening — the 12 active judges (i.e. those who are not on Senior status) could vote to order a rehearing by the entire court (en banc), without a petition. Here’s the rule —
Rule 35. En Banc Determination
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
(2) the proceeding involves a question of exceptional importance.
Anya
When we win the senate the very first task of the new senate leader should be confirming liberal judges to all the vacancies in the Federal Judiciary.
hueyplong
@Anya: The whole point of McConnell’s termite-like activity has been to assure that there are no vacancies on 1.20.21.
download my app in the app store mistermix
@Elizabelle: I pulled your comment out of moderation – it had more links than the spam filter could tolerate.
That said, I’m not sure that calling judges is a good use of political energy, but to each their own.
randy khan
@West of the Cascades:
As I understand it, either the loser has to ask for the whole court to consider the case (not going to happen here, I assume) or one of the judges on the circuit has to ask. (I suppose in theory that 7 judges could just vote to hear it, but something has to start the process.)
Dorothy A. Winsor
Speaking as a layperson, that’s a horrifying decision. It sounds as if Barr and Trump get to decide who has to follow the law.
randy khan
@Elizabelle:
I really would advise against calling the judges. They do not like to be bothered by regular people. Heck, they don’t like being bothered by lawyers (and, really, you’ll just be bothering their voice mail).
PST
@download my app in the app store mistermix:
I’m sure it’s not. Among other things, judges are strictly forbidden to consider ex parte communications, which a phone call from a member of the public would be. I will bet that all judges forbid their clerks to convey any information about what callers are lobbying for.
Omnes Omnibus
@randy khan: Yeah, I read it again, and I agree with you. My first comment was based on a very quick skim. Based on the circumstances, it is reasonable for a court to want to look into why the charges are being dismissed and it is also reasonable to for the appellate court to let the district court do its thing before stepping in.
West of the Cascades
Maybe passing a new law adding three or four new judges per District, about six-eight new judge positions per Circuit, and potentially four new Supreme Court justices. In seriousness, the federal courts’ caseloads have expanded to the point that additional judges would help get decisions faster as well as making for better decisionmaking (by lightening dockets). Call it the “Federal Understaffed Courts Key Year Organizational Updating Act.”
West of the Cascades
@randy khan: I believe that’s right – I don’t know the DC Circuit internal rules, but a lot of my practice is in the Ninth Circuit, and the General Orders here allow a single judge to call for a vote of the active judges. So Judge Wilkins could ask his colleagues to vote on whether to have the full court review it.
Jinchi
I’d rate getting rid of the filibuster as number one. Unfortunately, too many Democrats seem inclined to embrace a ‘norm’ that allowed McConnell to hobble Democratic efforts to rebuild after the economic collapse in 2008. We’ll need a serious effort to rebuild after devastation of the Trump administration.
SiubhanDuinne
@West of the Cascades:
Saw what you did there. ?????
West of the Cascades
@download my app in the app store mistermix: Calling the judges is a really, really bad idea. Don’t do it. They are not supposed to be subject to political pressure for one thing, so they ought to just ignore any requests from one side or another unless it’s submitted formally (i.e. part of a case) — and there’s no need to piss off their support staff with unnecessary and improper calls.
Le Comte de Monte Cristo, fka Edmund Dantes
@SFAW:
I’d love to see him get a reward of a free place to live for the rest of his life.
Omnes Omnibus
An editorial note on the opinion: The majority spends far too much time specifically arguing against the dissent. A judge who is confident in the correctness her opinion would not need to spend that amount of effort.
hitchhiker
Looters and thugs … I feel just like I did watching assholes torching downtown Seattle a few weeks ago. Some people are lawless, and citizens just have to watch in horror. It’s not different when the criminals wear suits and smirk.
Benw
@MomSense: whew. fell better
Another Scott
@Omnes Omnibus: +1
IANAL, and have not read the opinions, but the
appealappeals court seems to be jumping the gun for no good reason. Sullivan should not be short-circuited. Especially not in this case.We need each of the legs on the 3-legged stool of our national government to be strong and independent. Throwing away judicial review powers is a very bad idea.
Cheers,
Scott.
J R in WV
@MomSense:
Glad to hear this — imagine now strange a world where a diagnosis of lethal infection is preferable to other illnesses!?!?!!??
Please keep us posted on your hopefully swift recovery!
Bagel J
Seems as though jeopardy has not attached, so a Biden DOJ could reinstate the charges. At least that is what my federal criminal law expert spouse told me.
J R in WV
@West of the Cascades:
So… since 1944 prosecutors have needed “leave of court” to dismiss case. But Barr can just do it today? I think not. Reason right there to impeach Barr and his boss. Another one, actually on top of so many others!
randy khan
@Omnes Omnibus:
I didn’t bother reading the majority because I figured I’d get more useful information from the dissent. That said, given what I saw in the dissent, I’m not surprised.
West of the Rockies
Well, I guess it’s a loss for Team Liberal, but Flynn was going to do maybe a year at most, so this will go down in history as another example of the corruption and utter lack of honor of Republicans.
I hope Flynn is forever tainted and unwelcome in 73% of American enterprise.
SFAW
@Le Comte de Monte Cristo, fka Edmund Dantes:
Agree, but that would come after certain other “rewards.” Rewards like the Ludovico Technique, or like what Kevin Bacon got in Animal House (“Thank you, sir, may I have another”).
burnspbesq
@Omnes Omnibus:
I think the dissent goes farther than that. As I read it, the real problem is that Flynn has an alternative remedy readily available. If Judge Sullivan were to deny the motion to dismiss, Flynn could appeal.
The Court of Appeals ought not to have acted until the District Court had an opportunity to act. All of Judge Rao’s arguments are bullshit.
Jim, Foolish Literalist
@burnspbesq:
IANAL but I think this is going to be, as twitter would have it, an evergreen comment.
Kelly
Someone around here suggested changing the law to appoint a new Supreme Court Justice whenever a sitting Justice reaches age 70. That’d be nice to include and by the way we have 4 sitting Justices over age 70.
Ella in New Mexico
Any lawyers or others in the know want to tell me whether Justice “dropping” the case means that all the protections against further prosecution in other crimes (we all know he committed) granted in his plea agreement could now be back on the tale under a Biden AG? He committed a ton of far more serious national security crimes than his “lying to the FBI” charge, and they were set aside in order that he cooperate with Mueller on other issues.
If so I could care less about the next few months of “freedom” for Michael Flynn. He’s ruined. Just like Bolton. He’ll never hold another national security job, never be able to work as an international crime thug with his US Passport ever again. He’ll never have any credibility except in the most deplorable parts of the Republican Party apparatchik money maker crowds like C-Pac.
Seriously, we are gonna need a frigging cutthroat Attorney General when we take over, one who is willing to be ruthlessly but righteously just in cleaning house and holding people accountable in ways we’ve never seen before. Gonna take one gutsy person.
burnspbesq
@Ella in New Mexico:
There are a number of solid candidates available. My personal pick would be Andrew Ceresney, who was head of the Enforcement Division of the SEC under Obama; I’ve worked with him, and he is by far the smartest lawyer I’ve ever met. But I would be totally happy with Bharara, Becerra, or Healy.
ETA: I didn’t mention Sen. Harris because I assume she’s going to be VP.
Baud
Keith P.
Could the next DOJ prosecute again, or would double jeopardy apply in a case like this? (I’m wondering if Trump would have helped Flynn more to just pardon him)
burnspbesq
@Keith P.:
fd.org/news/courts-split-about-when-double-jeopardy-attaches-after-guilty-plea
Ella in New Mexico
@burnspbesq: Sounds like we’ll need him and the others on the front lines, no matter who is the AG!
As to the Double Jeopardy stuff above, if DOJ simply drops these charges related to his plea agreement in which other charges were not brought in order to obtain his cooperation then how would DJ apply at all in the future? Seems to me no charges means no plea means no trial so it should be a free-for-all when the next AG comes on board.
@Baud: Makes me wonder if a move to as for an en banc Appeals review of the Flynn case would actually go over better if they include the testimony we’ll be hearing today as a cause for review.
Elizabelle
@randy khan: and MisterMix: WRT calling the judges: thanks re advice that it’s not done. Did not know. (And, FWIW, I would have been happy just putting up a list of names, but that’s how their website was arranged.)
My fingers are crossed that a judge will call for a rehearing.
JoyceH
@Keith P.: not a lawyer but just pointing out that the feds agreed not to charge some really serious charges in exchange for Flynn pleading guilty to these relatively minor charges. Since he’s withdrawn his guilty plea I think that agreement was nullified and the more serious charges are available to a Biden AG.
Omnes Omnibus
@burnspbesq: As I noted, my first comment was based on a quick skim of the opinion.
laura
Sweet tap dancing jeebus – Neomi Rao is a hack. So now we can expect the actual traitor Flynn and his son to immediately return to the campaign trail, return to lock her up and return to paid meddling for Turkey.
So much winning.
Glad to hear Momsense is recovering from step – that makes my hair hurt just thinking about it, but glad it’s not CV. Take care Momsense!
Slappy Kincaid
An en banc hearing would be interesting. Marcy Wheeler put up a pretty detailed analysis of the decision at Empty Wheel.
Depends on how willing Sullivan is to let it go. So far, he has seemed pretty unwilling to do that, so a request for an en banc hearing may be coming.
Zinsky
Someone needs to make a citizen’s arrest of Flynn and hold him in a dog cage until we have a legitimate Attorney General.
Ixnay
@West of the Cascades: A most excellent acronym.
karen marie
I scared my dog I screamed so loud when I read that.
Ruckus
@burnspbesq:
Hope you get our wish.