A user-friendly analysis explaining why Flynn's case got dismissed

You've no doubt heard that the United States Court of Appeals for the District of Columbia Circuit issued a decision dismissing Michael Flynn's case.  Judge Neomi Rao used impressively accessible prose in the decision, but it's still written in legal language.  This post simplifies her argument even further.

Here's the vital point: Rao, a Trump appointee, and Judge Karen L. Henderson, a Bush appointee, ruled in Flynn's favor and ordered that Judge Emmet Sullivan stop trying to keep the Flynn prosecution alive.  Judge Robert L. Wilkins, an Obama appointee, dissented.

The decision is not yet final.  Wilkins, or another judge on the appellate court, may still ask for the entire court to review the matter.  This possibility explains why, in the decision itself, Rao takes the time to write a brutal takedown of Wilkins's silly reasoning.

Rao recited the necessary background facts: as information came out showing that the FBI and the DOJ railroaded him, Flynn moved to have his guilty plea reversed and the case dismissed.  The DOJ then reviewed the case and concluded that the newly revealed facts, combined with the FBI's misconduct, undermined its case, justifying its own motion for dismissal.

Even if Flynn had made false statements, the DOJ concluded, those statements did not justify a case against him.  Moreover, the government would receive no benefit from prosecuting Flynn.  When the government moved to dismiss, though, Judge Sullivan hired an outside attorney to craft an argument that would justify keeping the case alive.

Having established the operative facts, Rao explained the controlling law.  Under Rule 48, although the prosecution must ask the court for permission to dismiss a case, the court has almost no say in the matter.  It may deny the motion only to protect the defendant from a prosecution that is toying with him.

That is not the case here.  Absent that special circumstance, the separation of powers doctrine means that the Executive Branch (and the DOJ is part of that branch) has the exclusive right to decide if a case is worth pursuing.  Moreover, the court must presume that the prosecution is making trustworthy, normal decisions about dismissal.  The court has no authority to announce, as Judge Sullivan did, that it will hold hearings, complete with outside counsel, to determine whether the prosecution made the right decision.

Rao also rejected the argument that the emergency petition was premature.  Sullivan wanted to let the matter play out and had already scheduled briefs and oral argument, and he even seemed to contemplate an evidentiary hearing.  Only after all that, said Sullivan, if he then ruled against Flynn, would an ordinary appeal be appropriate.  In the interim, all that Flynn would lose would be time, and that did not justify emergency relief.

Sullivan was wrong, said Rao.  The emergency petition was the only way to proceed because there was a risk of irreparable harm — not to Flynn, but to the federal government itself.  The moment a member of the Judicial Branch wrongly tries to insert himself into a matter over which only the Executive Branch has authority, he has committed irreparable harm to the balance of powers under our constitutional system.

For all those reasons, the court ruled that Sullivan must grant the government's motion to dismiss without any further ado.

The court stopped short of dismissing Sullivan from the case entirely.  Flynn had argued that Sullivan's statements about Flynn (at one point accusing him of treason) showed that he was so biased that he could not be trusted with the case anymore.  The court held, however, that judges can say nasty things about a defendant or his attorney without being forced off a case.

Having disposed of the petition, Judge Rao brutally attacked Judge Wilkins's dissent.  First, Wilkins challenged without facts or argument the presumption that the prosecutor is acting in the ordinary course of business.  Instead, he argued that the prosecution's decision to reverse course was proof that it was acting abnormally.  Rao pointed out that when a government moves to dismiss a case, it's always reversing course, so that fact proves nothing.

Second, Wilkins argued that the controlling decision — Fokker Services — stated the applicable legal principles as "dicta" (meaning mere comments, without legal weight), leaving his panel free to disregard Fokker's holding.  Rao reminded Wilkins that the facts in Fokker put the lie to that argument.

Third, Wilkins contended that, by following Fokker, the court was creating two separate opinion tracks in federal appellate courts.  Rao pushed back by saying it was Fokker that had created this split.  Rao then reiterated that there is no precedent anywhere for Sullivan's efforts to conduct a mini-trial examining the prosecution's decision to dismiss Flynn.  Once the prosecution wanted to end the case, and there was no evidence a dismissal would harm Flynn, Sullivan's job was over.

Fourth, Wilkins was upset that he could not find an identical case in which the court had granted identical relief. Rao rightly pointed out that this is not how the court works. Indeed, Sullivan's behavior was so "novel" that it begged for emergency intervention.

Fifth, Wilkins echoed Sullivan's argument that the petition was premature and that Sullivan should have had a chance to decide the motion after a mini-trial before Flynn brought the matter up on a regular appeal. Rao noted that Sullivan had already done so many actions outside the scope of his authority (e.g., hiring counsel to oppose Flynn, scheduling hearing) that he needed to be stopped immediately.

Sixth, Wilkins argued that, because Flynn, not the government, filed the urgent petition, the court could not use harm to the government as the standard for granting the petition. Rao stated that the government is not just any old party. The separation of power is at issue here, and that is always urgent.

And seventh, Rao savaged a silly procedural claim that saw Wilkins try to analogize the motion to dismiss to the ban on the government's "selectively prosecuting" someone. That ban does not prevent the government from dismissing a specific person without first requiring excessive judicial oversight.

Rao's is a tightly reasoned decision, and it would take a brave en banc panel to attack it.

20-5143-1848728 by Scott Johnson on Scribd

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