Over the course of nearly two hours, a three-judge panel of the D.C. Circuit Court of Appeals quizzed attorneys for Michael Flynn, the Department of Justice, and Judge Emmet Sullivan. The questions posed during oral argument suggest the court is hesitant to order Sullivan to dismiss the criminal case against Flynn — at least at this time. How the court will rule, however, likely rests in the hands of Judge Karen Henderson.
Here’s why, along with some other key highlights.
But first, the background:
The special counsel’s office had charged Flynn in late 2017 with making false statements to FBI agents. At the time, Flynn pleaded guilty to the charge, but after hiring a new attorney, Sidney Powell, Flynn moved to withdraw his guilty plea, arguing prosecutors threatened to improperly target his son unless he pleaded guilty to the offense and that his prior attorneys were ineffective. While that motion was pending, Attorney General William Barr directed an outside U.S. Attorney, Missouri-based Jeff Jensen, to review the Flynn case.
Jensen’s review revealed evidence previously undisclosed to Flynn and Sullivan, the federal judge presiding over the case. After turning over that material, the local U.S. attorney filed a motion to dismiss the charge against Flynn. While that should have been a routine motion, Sullivan refused to dismiss the criminal charge and instead invited amicus curiae, or friend of the court, briefing from outside parties, and appointed a retired judge, John Gleeson, as an amicus curiae to argue against dismissal.
Powell promptly sought assistance from the D.C. Circuit Court, asking for an order, called a writ of mandamus, directing Sullivan to dismiss the case. In an unusual move, the federal appellate court ordered Sullivan to respond to the petition, and also invited the Department of Justice to respond.
Sullivan hired an outside attorney, Beth Wilkinson, to represent him, and Wilkinson argued the federal judge’s position this morning, while DOJ attorney Jeff Wall argued on behalf of the government. Of course, Powell took to the podium to present Flynn’s position.
The argument began promptly at 9:30, live-streamed on the court’s YouTube channel, when presiding Judge Karen Henderson, a George H.W. Bush appointee, called the court to session, flanked by fellow judges Obama-appointee Judge Robert Wilkins and a recent Trump judge, Neomi Rao. The three-judge panel peppered the attorneys with questions for nearly two hours.
One key area of inquiry concerned the power of a federal judge to question federal prosecutors on their motive for seeking dismissal. What is the “leave of court” standard? Rao asked, noting it was more than a rubber stamp, but surely not a deep-dive into the executive branch’s decision-making.
Wilkins pushed the same line of inquiry, but with the goal of cornering the Trump administration into a fateful admission: What if the government decided to drop an excessive force charge against a white police officer where the victim was black? Could the court question the Department of Justice’s decision? Would the court be required to dismiss that prosecution?
Wall, who argued for the DOJ, deftly handled the inflammatory question, noting that the DOJ would never act in such a way and that he has never seen such conduct, but if such a situation occurred, it would present an equal protection issue — something far afield of the case before the court. And there would be other remedies for racist-based failure to prosecute a case, Wall assured the court.
While the attorneys fenced with the judges on the issue of the standard for dismissal, Judge Henderson focused on the question of remedy. With mandamus being “an extraordinary remedy,” what would be the harm in going ahead with “regular order” and allowing Sullivan to issue a ruling on the government’s motion to dismiss? the longtime appellate judge queried. Henderson then added that she had found no case in which the court had issued a writ for mandamus prior to the district court issuing an order.
Henderson noted that while Sullivan had appointed an “intemperate amicus,” referring to John Gleeson, who recently filed a 70-plus-page anti-Trump screed, Sullivan is “an old hand” and “we don’t know” that he will deny the motion to dismiss, Henderson stressed. Instead, he might well say, “You know I asked for advice, but I’m ignoring it, and I’m granting the motion to dismiss.” Given that mandamus is a “drastic remedy,” and there is no precedent for granting before an order, why not wait until Sullivan considers the question on July 16? the Bush appointee queried.
Powell forcefully reminded the court that this case is over. There is no controversy, and while the government is paying for everyone else’s attorneys, three years into this fight, it is a burden on Flynn and his family, where the outcome is a foregone conclusion.
Wall, for his part, stressed the more global harm to the executive branch, noting that Sullivan invited an amicus who politicized the process and has accused Trump and Barr of malfeasance. The filed amicus brief and Sullivan’s brief filed before the D.C. Circuit also suggest the court’s intent to explore the DOJ’s decision and motives — something clearly beyond the judiciary’s power, Wall maintained. There is a true harm to the government, beyond the “intemperate amicus,” as it invades the executive branch’s deliberate process and creates a conflict between two branches of the government.
Why then did the DOJ not seek mandamus? Wilkins asked. Wall explained that the DOJ had been considering the appropriate course to take, unsure how Sullivan intended to proceed, when Powell filed her petition for mandamus. But the DOJ attorney added that if the court thought it was important, the DOJ would file for leave to file a petition for mandamus because this case presents significant and concrete constitutional separation of powers issues.
At that point, Wilkins chided Wall for suggesting yet another extraordinary departure from “normal procedures” by seeking leave to file a mandamus petition after the fact. Wall countered that the DOJ was appearing in support of Flynn’s petition, and that its position is regularly considered in such cases, and should be considered here as well, even without a mandamus petition.
Whether the D.C. Circuit will agree with the DOJ’s position in this case, however, is impossible to accurately predict. Rao’s concerns, that there is no adversary and that the judicial branch cannot create a criminal case where the executive branch has concluded that continued prosecution is inappropriate, suggest she will side with Flynn. Wilkins’ one-sided questioning and his chiding Wall for not filing a mandamus indicate he will rule that Sullivan has both the right and the obligation to inquire further into the dismissal. That leaves Henderson with the decisive vote.
Here, it is significant to note that in questioning Wall about the propriety of mandamus, Henderson noted that there was a “clear and indisputable right,” meaning that dismissal would be required in this case. But she faltered on the question of remedy. Her comments from the bench indicate she wants to let Sullivan have a chance to do the right thing — which, based on her various questions, means dismissing the criminal charge.
Don’t we want the Article 2 branch to self-correct? Judge Henderson asked at the end of the hearing. The bad faith in this case occurred in the original prosecution, she added.
Yes, Wall noted, stressing that the Department of Justice provided three independent reasons for dismissal of the charge against Flynn, and that Sullivan and the amicus supporting his perspective ignored the final rationale: The DOJ believed continued prosecution was not in the interest of justice given the extraordinarily improper circumstances surrounding the interview of Flynn. No one disputes that making such considered judgments is a core Article 2 power. This alone requires the district court to grant the motion to dismiss, Wall added.
How these points will play out for Judge Henderson are unknown, but Wall also offered an appealing compromise: Direct Judge Sullivan to limit further proceeding to the pending Rule 48 motion to dismiss — and thus order him to abandon his pursuit of a perjury claim — and then allow Sullivan to rule on that motion, but only based on the rationales provided in the DOJ’s motion to dismiss.
Framing this directive, however, may prove challenging, as Rao noted. At the end of the day, Judge Henderson may decide, based on the long and sordid history of this case, that it isn’t just Judge Sullivan’s amicus who is intemperate.