For nearly four hours Tuesday morning, the full D.C. Circuit Court of Appeals drilled attorneys for Michael Flynn, the Department of Justice, and Judge Emmet Sullivan on a wide range of issues, from the scope of Federal Rules of Criminal Procedures 48(a), which provides that “the government may, with leave of court, dismiss an indictment, information, or complaint,” to the constitutional doctrine of separation of powers, the propriety of mandamus, and the need for Sullivan to recuse from the Flynn case.
The en banc hearing followed Sullivan’s request for a rehearing of the 2-1 panel decision that granted Flynn’s petition for mandamus and ordered the longtime federal judge to grant the government’s motion to dismiss with prejudice the charge levied against Trump’s former national security adviser.
A Timeline of Events
Flynn had pleaded guilty in December 2017 to lying to FBI agents Peter Strzok and Joe Pientka during a Jan. 24, 2017, interview in the White House about conversations Flynn had with Russian Ambassador Sergey Kislyak. Flynn later fired his attorneys, hired Sidney Powell, who argued the case today, and moved to withdraw his guilty plea. While that motion remained pending, Attorney General William Barr directed an outside U.S. attorney, Missouri-based Jeff Jensen, to review the Flynn case.
Jensen’s probe uncovered substantial exculpatory evidence withheld from Flynn and his attorneys that established that the FBI agents did not believe Flynn had lied during the interview. Jensen also concluded that the questioning of Flynn was “untethered” from any legitimate investigatory purpose and instead seemed to be a perjury trap set to catch Flynn in a lie. Jensen recommended the DOJ dismiss the charge against Flynn, and Barr agreed.
But when the DOJ moved to dismiss the charge against Flynn, presiding Judge Emmet Sullivan resisted. He appointed a retired judge, John Gleeson, to serve as an amicus curiae, or friend of the court, to argue against dismissal of the Flynn charge. Gleeson, who had co-authored a scathing Washington Post op-ed accusing the DOJ of political favoritism days before his appointment as an amicus curiae, turned in an oversized brief that accused the attorney general and DOJ of misconduct.
Flynn’s attorney, Powell, filed a petition for a writ of mandamus with the D.C Circuit Court of Appeals, seeking an order directing Sullivan to dismiss the charge. A three-judge panel consisting of Karen Henderson (a George W. Bush appointee), Robert Wilkins (an Obama appointee), and Neomi Rao (a Trump appointee), heard the petition, and while Henderson’s questioning suggested a loss for Flynn, the panel, in a 2-1 decision with Wilkins dissenting, granted mandamus and directed Sullivan to dismiss the charge.
Sullivan Requests En Banc Rehearing
Rather than dismiss the charge, however, Sullivan filed a petition for rehearing en banc. Powell and the DOJ, which had supported Powell’s petition for mandamus, opposed the petition for rehearing, but the D.C. Circuit voted to rehear the case as a full court. Later, the D.C. Circuit directed the parties — if Sullivan can be considered a party — to focus on whether Flynn had available other adequate remedies and then later told the parties to be prepared to discuss whether Sullivan must be recused from the case.
Powell began with a short opening statement and then responded to questions posed by the 10 active judges hearing the appeal. (Judge Gregory Katsas did not participate in the en banc proceedings.) Jeff Wall, the acting solicitor general, argued next on behalf of the government, followed by Beth Wilkinson, the private attorney retained to represent Sullivan. Powell and Wall concluded with short, two-minute rebuttals.
The questions posed focused mainly on the propriety of mandamus in the Flynn case given that Sullivan has not yet ruled on the government’s motion to dismiss. Mandamus is an extremely rare remedy, appropriate only when there is a clear and indisputable right to relief. Counsel for Sullivan argued there is no need for mandamus because a hearing has not even been held and there is no reason to believe Sullivan will not follow the law. But what exactly the law is, the court pushed the parties to explain.
Was Sullivan required to grant the motion? If so, what purpose is there for allowing further proceedings? Or does Sullivan have the authority to call witnesses and take evidence to challenge the Department of Justice’s decision to dismiss the case? If so, where does that authority end?
Disregard for Separation of Powers
Other than Rao and Henderson, the two judges in the panel decision’s majority, the other judges all expressed some concern over granting mandamus at this point. Several of the judges also expressed concern that requiring the government to respond to questions posed by Sullivan violated separation of powers and the executive’s Article II authority to decide whether to prosecute a case.
While Sullivan’s attorney suggested there was no reason to believe he would seek to question the government’s reasoning or to call witnesses, as Wall noted, Sullivan made clear in his petition for rehearing that he intended to question the government’s motives. As Powell stressed, Sullivan already intruded on the executive’s decision to terminate a prosecution by appointing an outside amicus curiae.
While Sullivan’s attorney suggested he had no intention of crossing any lines, and while a majority of the appellate court judges seemed to wish to allow Sullivan the benefit of the doubt, Henderson said it best when she quoted Henry David Thoreau: “Some circumstantial evidence is very strong, as when you find a trout in the milk.” Unsaid was that everything Sullivan has done since the government filed its motion to dismiss the criminal charge against Flynn tells of his intent to intrude on the executive branch’s prosecutorial decisions.
Wait and See
Whether three other judges will join Rao and Henderson is unclear. (In an en banc proceeding, a tie vote upholds a panel decision). The public should remember, however, that Henderson seemed inclined against mandamus originally. In the end, it might just be that Wall’s closing rebuttal swings the three votes necessary to Rao and Henderson’s side.
In closing out the fourth hour of argument, Wall noted that if Sullivan has nothing untoward planned, there is no reason not to grant mandamus and short-circuit any unnecessary proceedings. Conversely, if Sullivan intends to exceed his authority on remand and delve into the executive’s decision-making and prosecutorial discretion, mandamus is needed to stop that unconstitutional usurpation of power.
Wall, however, also proposed a middle ground, which a majority of the court might be likely to accept: Remand the case for a ruling on the government’s motion to dismiss, setting a time limit and specifying the appropriate scope of any such hearing, and then reassign the case to avoid the appearance of impropriety Sullivan created by seeking rehearing.
An expedited ruling is likely, and it is also possible the court will issue its bottom-line decision, with the opinions to follow.