Decision 8-2 of the Federal Court of Appeal of In response: Michael T. Flynn, issued Monday, confirms – on the objection of two right-wing judges – that the ordinary rules that apply to any other trial also apply to President Trump’s former national security adviser. Michael Flynn, a former general who briefly was Trump’s best national security aide, will not be able to drop criminal charges against him until his case is heard in a federal trial.
This is hardly a devastating legal event. But the decision is important because it reveals a deeply radical view of one of President Trump̵
It remains likely that Flynn will avoid federal allegations that he lied to the FBI. And he is likely to do so, although he once pleaded guilty to the charges.
But Flynn, at least, will not receive a special exception to the rules governing criminal appeals.
Flynn tried to get around the judge hearing his case
The facts underlying Flynn’s case are, to say the least, unusual. In 2017, Flynn pleaded guilty to lying to the FBI about his contacts with Russian Ambassador Sergei Kislyak. Almost three years later, however, Trump’s Justice Department decided to drop the charges against the former Trump aide. Although the DOJ acknowledges that Flynn lied to investigators, the Justice Department now claims that these lies could not “affect” an investigation that has no legitimate, counterintelligence or criminal purpose. “
It is extremely unusual for prosecutors to drop charges years after receiving a guilty plea. And the Federal Criminal Procedure Code only allows the government to dismiss charges “on leave.” So Judge Emmett Sullivan, the presiding judge in the case, decided to hold a hearing to consider how to proceed – and to assess whether Flynn should be held in breach of perjury, a charge the court could raise without consent. of DOJ.
Sullivan also asked a court-appointed lawyer to argue the case against Flynn, a common practice where the parties appearing in court present important arguments at the heart of the case.
Judge Sullivan has not yet heard. And he has not ruled at all on whether the accusation against Flynn should be dropped. It is possible – probably even because ordinary judges are postponing to prosecutors who want to drop a case – that Sullivan will allow the initial charges against Flynn to be dropped. If Sullivan rules against Flynn, Flynn always has the opportunity to appeal that decision to the United States Court of Appeal for the District of Columbia, the same court that ruled against him on Monday.
But Flynn felt he did not have to comply with the ordinary process that governs almost every case before a federal district court. Usually, the judge in the case hears a case, first decides it and then the case can be heard by a court of appeal. after the judge rules. Instead, Flynn sought what is known as a “mandamus order,” a rarely issued court order that sometimes allows the appellate court to intervene against a judge’s request.
In any case, the result of the DC Circuit solution in Flynn is that Flynn will have to follow the same procedural rules as anyone else. Referring to a 1967 Supreme Court ruling, the court explained that the “mandamus petition” can never be used as a substitute for an appeal. ”
Rather, the mandamus relief is only available if “the party requesting the order [has] there are no other adequate means to achieve the relief he desires. “Since Flynn has another remedy at his disposal – he can challenge his case before Judge Sullivan and then appeal Sullivan’s decision if he doesn’t like it – Mandamus’ relief is inappropriate.
The case came this far only because of two more unusual judges
DC circuits Flynn the decision is a rather elementary application of the long-standing law. So simple, in fact, that it’s surprising that the full DC circuit had to consider this case at all.
The majority of the cases of the federal courts of appeal are heard by judges of three judges, whose members are chosen arbitrarily from among the judges of the court. In this case, Flynn was briefly lucky because he was composed of two extremely conservative judges: Judge Karen Henderson, appointed by George H. W. Bush, who sometimes held positions in Brett Cavanaugh’s law when the two served together on the DC chain. ; and Judge Neomi Rao, a recently appointed Trump who authored several dubiously motivated decisions in favor of Trump or the Trump administration.
After Henderson and Rao voted to grant Mandamus relief to Flynn, the full court intervened to overturn the decision. In fact, the entire DC circuit seems so concerned about Henderson and Rao’s decision that they refer to an extremely rare process.
Less than 0.3 percent of all federal court cases are heard en banc, the legal deadline for a full court hearing, according to a 2011 analysis of cases receiving an en banc review. In addition, most of these cases are heard by bank transfer because the party who lost the case to a three-judge panel asked the full court to reconsider the case.
And yet in Flynn, the court revealed that it had decided to consider the en banc case “on the basis of a motion by a member of the court”. In this way, Henderson’s and Rao’s colleagues seem to have decided, without the need to be asked, that the two judges’ decision could not stand.
This means that Rao wrote a special opinion published on Monday, where she makes every effort to defend her original decision in favor of Flynn. The essence of her argument is that Flynn is entitled to special treatment, as the lack of relief for Mandamus would disrupt the separation of powers.
“In our system of divided powers,” Rao said in his disagreement, “the government can deprive a person of liberty only by the action of the three branches: Congress must pass a law criminalizing the activity; the executive must determine that the persecution is in the public interest; and the judiciary, independent of the political branches, must adjudicate the case. “
Thus, Flynn must prevail, because “the prosecution no longer has a prosecutor.”
It is possible that after this case goes through the courts, Judge Sullivan or perhaps even DC Circuit will agree with Rao on this issue. Again the question in Flynn was whether Sullivan was allowed to hold a hearing before deciding whether to dismiss the charges against Flynn – not whether those charges could be upheld because of the DOJ’s objections.
But there is also a very good reason to doubt Rao’s theory of the separation of powers. It is simply not true that the executive as a constitutional issue should be involved in prosecution. On the contrary, the current system, in which federal prosecutions are usually initiated by executive officials in the Ministry of Justice, is a relatively recent development.
As Fordham law professor Jed Sugerman explained in a 2019 article, for most of the nation’s history, the power to prosecute has not even been limited to the government. As Shugerman writes, “for most of English and American history, most accusations were not executive at all because they were private enterprise. ”
In fact, prosecutions by private lawyers have been the norm for decades after the ratification of the Constitution. “Most American persecution was still private until the mid-19th century,” explains Schuermann, “as Alan Steinberg and many other historians have demonstrated.”
The Senate Judiciary Bill of 1789 gave federal district judges, not the president, the power to appoint federal prosecutors. And the final version of this law allowed many federal law enforcement officers to be removed by judges. This law allows federal district judges to appoint temporary attorneys in the United States (albeit only after a provisional appointment by the Attorney General has served 120 days).
So Rao’s reasoning is anachronistic at best. He ignores much of the nation’s early legal history. And it even potentially threatens many contemporary prosecutions conducted by court-appointed prosecutors.
Her reflections also received little support from her colleagues. And given that the law is very clear that Flynn must follow the usual process if he does not agree with Sullivan’s decision, it is unlikely – though certainly impossible – for the Supreme Court to intervene to provide relief to Flynn’s mandamus.
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