(Photo by the Defense Department via Wikimedia)
After judicial social climber Neomi Rao contorted basic conservative principles to the breaking point in an effort to deliver her patron Donald Trump the result he craved in the Michael Flynn case, the rest of the D.C. Circuit found its institutional credibility thrust into the spotlight. Rao and H.W. Bush-appointed Judge Henderson who joined the MAGA revolution had rewritten the judicial process to declare that irreparable harm exists the moment a judge asks the government to explain its motion, a conclusion that amounts to throwing the plain text of Rule 48 in the garbage bin, lighting that bin on fire, scattering its ashes, and then loudly announcing, “um, what bin?”
The rest of the D.C. Circuit offered very little patience for this. In an 8-2 ruling — with Judge Katsas sitting out as a former White House Counsel official and Justin “L’il Skippy” Walker not yet on the scene — the Circuit kicked this nonsense straight back to the curb. Echoing what everybody said about the original opinion:
Here, Petitioner and the Government have an adequate alternate means of relief with respect to both the Rule 48(a) motion and the appointment of amicus: the District Court could grant the motion, reject amicus’s arguments, and dismiss the case.’
Quite simply, the only separation-of-powers question we must answer at this juncture is whether the appointment of an amicus and the scheduling of briefing and argument is a clearly, indisputably impermissible intrusion upon Executive authority, because that is all that the District Judge has ordered at this point. We have no trouble answering that question in the negative, because precedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances, including in criminal cases and even when the movant is the government.
This would be an excellent time to introduce Judge Rao to the many advantages of legal research software. Did you know that products like Westlaw and Lexis can actually show you the cases with the exact same fact pattern that are consistently decided the other way? Perhaps the rest of the D.C. Circuit should schedule a training. After all, the biggest problem in legal tech is user adoption.
Rao and Henderson dissent, rehashing the loony scribbles they backed in the original panel opinion. What’s so bizarre about the effort to transform this into a separation of powers dispute is that there was absolutely a juncture where that would have been appropriate… and the Flynn case blew by it months ago.
A prosecutor dropping a case doesn’t give a judge the authority to pursue criminal case. That’s not controversial. But neither does a prosecutor’s wishes get to dictate sentencing. Once someone is convicted, prosecutors can recommend whatever they want, but it’s in the judge’s hands at that point. Flynn went into court and swore under oath that he committed these crimes — twice — and entered a guilty plea. Under normal circumstances, this wouldn’t be the DOJ’s party anymore. If a judge decided to go over (or under) the DOJ’s sentencing recommendation, there wouldn’t be some egregious separation of powers complaint. That the prosecutors try to short-circuit this traditional distribution of powers by throwing out the charges after the charges have resulted in a conviction shouldn’t change that. That’s why trying to “square peg-round hole” that result from a jeremiad about separation of powers is so absurd. But the D.C. Circuit decides that they don’t even need to get that far yet since, of course, there’s not been any decision yet.
But let’s close by having a little pity for Judge Griffith, the W. Bush-appointee who joined the majority and used his short concurrence to try and play institutional defense for a court that appears to have a couple of MAGA rogues making up legal theories for purely partisan reasons:
In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken.
Would we? Because even Judge Griffith couldn’t keep a straight-face through his own concurrence.
[Separation of powers cases] are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree…. And that principled disagreement revisits a long-running debate about the relative powers of the Executive and Judicial Branches.
And the next sentence…
Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made.
To recap, “separation of powers cases aren’t political… but this case isn’t really about the separation of powers regardless of what the dissenters want to pretend.” Not exactly smoothing things over.
In the end, this whole thing reads like a very cautious and thorough effort to address the fact that the D.C. Circuit has a couple of crazy aunts that they’d really rather not talk about.
(Full opinion on the next page.)
Earlier: Michael Flynn Opinion Protects Bill Barr From Having To Go Ahead And Lie Under Oath
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.