Neomi Rao (Photo by Alex Wong/Getty Images)
With Donald Trump publicly hyping his upcoming new list of SCOTUS papabile, DC Circuit judge Neomi Rao could not be more jazzed to show off her unswerving loyalty to the administration that installed her on the Supreme Court farm team bench. So when the Flynn case landed in her lap, complete with an opinion from Debevoise partner and former federal judge John Gleeson laying out rampant DOJ corruption, she got right to work figuring out how to give the White House the result it wanted and she was prepared to play doctrinal roulette to create a truly epic Frankenopinion. Indeed, almost half of the opinion consists of glib responses to the dissent in an effort to replace laying out a sound affirmative opinion by piling aspersions on the dissent.
Judicial restraint? Textualism? Original public understanding? You’d think any one of the Holy Trinity of conservative doctrines would make an appearance, but they all get shunted aside in the pursuit of serving the political aims of the White House. The logical contortions and hand-waving kicks off when she’s laying out the standards for a writ of mandamus and just compile upon themselves from there.
For this court to grant a writ of mandamus, “the right to relief must be ‘clear and indisputable’; there must be ‘no other adequate means to attain the relief’; and ‘the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’”
Judge Sullivan has not yet ruled on this issue, so how are there no other adequate means to attain relief? Doesn’t the court need to do something first? According to Rao, “the district court has acted here. It has ordered briefing and scheduled a hearing.” Holy hell! That’s the standard now? Briefing?
“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power”… because of briefs. Her concern is that “[t]he contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority,” ignoring that Rule 48(a) absolutely requires the government to provide the court with a satisfactory justification for its decision.
Here’s the problem with this, if Rao (joined by Judge Karen Henderson) is correct that the DOJ is dropping the Flynn case because of “newly discovered evidence of misconduct by the Federal Bureau of Investigation” then they can go ahead and use their briefs to outline the newly discovered evidence of misconduct by the Federal Bureau of Investigation. That does not expose the DOJ to any disclosures that they haven’t already volunteered. If Judge Sullivan doesn’t accept that, then they can appeal and be… exactly where they are right now!
But that’s the rub, they don’t have anything else to say. If the DOJ filed a brief that credibly asserted any of the aluminum hat stuff being passed around on Twitter about entrapment and Obama’s interference, Judge Sullivan would grant them leave. The majority reasoning here only makes sense in the world where the DOJ is lying about its reasons for dropping the case. Rao’s opinion rests on the presumption that the FBI misconduct that the DOJ is already asserting isn’t substantiated or completely pretextual because otherwise the Executive wouldn’t have to reveal jack in these scheduled briefs.
In a sense, that is an irreparable harm to the DOJ — if they had to actually lay out their casual claims that the FBI railroaded Flynn in a brief, it would expose the corruption. Still, that’s not the kind of irreparable harm these things are meant to prevent.
Although Rule 48 requires “leave of court” before dismissing charges, “decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion.”
So much for textualism! “Leave of court” now joins “well-regulated militia” on the Island of Lost Phrases as language the drafters inserted by PURE ACCIDENT… no further inquiry required! Rao cites an opinion about judges not having the authority to tell the DOJ that a deferred prosecution agreement isn’t good enough, which feels distinguishable from the government completely dropping a case where the defendant pleaded guilty twice to all the predicate acts. Alas, Rao has little time to address such concerns, waving them away in a footnote that misrepresents the argument as if Judge Sullivan contends that a different standard applies as opposed to the actual claim that the “satisfactory justification” standard remains the same, but when the government already has its conviction it’s a lot harder to swallow a justification that might have made sense earlier:
“Rule 48(a) continues to apply even after conviction and sentencing while the case is on direct appeal, and the same standard applies to a government request for dismissal at that stage as applies if the request came prior to trial.” 3B WRIGHT & MILLER, FED. PRAC. & PROC. CRIM. § 802 (4th ed. 2013).
Wright & Miller? I’m pretty sure Arthur Miller wouldn’t cite Wright & Miller as the lone authority in an appellate opinion. Legal Writing professors the world over are getting out their red pens. Judge Gleeson’s report actually spent a good deal of time discussing the original public understanding of Rule 48(a), which was drafted in the context of a backlash against prosecutors dismissing charges as corrupt political favors. Don’t worry, originalism doesn’t make it into this considered conservative opinion either!
Instead she asserts that the Department of Justice deserves the presumption that it’s acting ethically. Which is true! But what about the weight of the evidence rebutting that presumption?
On the record before the district court, there is no clear evidence contrary to the government’s representations. The justifications the district court offers in support of further inquiry—for instance, that only the U.S. Attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions—are insufficient to rebut the presumption of regularity to which the government is entitled.
Putting aside the cherry-picking of the evidence laid out, Rao’s position is “despite the clear irregularities, there’s no reason to suggest this is irregular.” Judge Wilkins’s dissent suggests that this may be a glib oversight, so Rao reiterates that the presumption of regularity is only overcome by “clear evidence to the contrary.” Toward that end, she also declared that the Department of Justice should not be forced to disclose any evidence. We’ll call this new Federalist Society doctrine “Catch-45” after the current president.
But Rao has now penned her Supreme Court resume. It’s not exactly Cardozo’s Palsgraf, but compared to Neil Gorsuch’s offering at least she didn’t suggest someone should die protecting a truck so… progress?
(Check out the opinion on the next page.)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.