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Yesterday, the DC Circuit agreed to rehear argument en banc in Michael Flynn’s case demanding that U.S. District Judge Emmet Sullivan immediately dismiss all charges against him. This grant magically erases Judge Neomi Rao’s embarrassing mixtape of judicial activism and anti-textual hottakes that she hoped would win her a seat on the country’s highest court. Yeah, it’s a bummer.
On January 24, 2017, the former National Security Advisor pled guilty to making false statements to the FBI and also admitted that he’d failed to register as an agent of the Turkish government in violation of the Foreign Agents Registration Act. He reallocuted to the same illegal conduct under oath in open court. Twice.
Nonetheless, last summer Flynn hired a new lawyer, Sidney Powell, who engaged in a sustained campaign of Fox appearances arguing that her client was framed by a vicious FBI out to smear Donald Trump. How those wily lawmen managed to force Michael Flynn, who’d had a security clearance for decades, to lie about his secret promises to the Russian ambassador is not entirely clear. But the pressure campaign appears to have worked. Attorney General Barr embarked on a crusade to smear his own department, tasking the US Attorney for Missouri to hunt down any scrap of notes that might impugn the investigators — no one has ever called this stuff Brady materials, and anyway Flynn gave up his right to demand those in his plea agreement — and announcing that the government was dropping the case on June 24, just days before Flynn was due to be sentenced.
U.S. District Judge Emmet Sullivan refused to accord the government the presumption of regularity and accept its bland assurances that this was standard operating procedure, nothing to see here, Your Honor. Perhaps Barr’s public admission that he’d ratf*cked the Stone and Flynn cases was a clue! In any event, Judge Sullivan appointed retired judge and current Debevoise partner John Gleeson to make sure the government’s move to dismiss the case against Trump’s political ally was on the up and up.
Turns out, it wasn’t. Like, not at all. Or, as Judge Gleeson put it:
The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient. Moreover, the facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.
So Judge Sullivan ordered further briefing, and Sidney Powell sprang into action, filing a mandamus petition with the D.C. Circuit. Powell demanded that the appellate court order Judge Sullivan to dismiss the case right now, because even a briefing on the government’s petition constituted a grievous injury to truth, justice, and the American way. And then she got really lucky, drawing Judges Rao, Karen L. Henderson, and Robert Wilkins as her appellate panel.
Judge Rao cooked up an opinion saying that actually, where Rule 48 says cases can only be dismissed with “leave of court,” what that really means is that the decision is entirely within prosecutorial discretion and judges are merely a pro forma stamp of approval. And Judge Henderson did her a solid and signed on to it.
Naturally this decision to give Donald Trump exactly what he wants has nothing at all to do with public speculation that Trump wants to name Rao to replace Justice Ginsburg, whom Leonard Leo et al have been sizing up like a pack of vampires for years now.
But Judge Sullivan himself asked for rehearing by the entire D.C. Circuit — why not, everything else in this case is batsh*t, right? — and yesterday the panel agreed. In a brief order setting argument for August 11, the court directed the parties to “be prepared to address whether there are ‘no other adequate means to attain the relief’ desired.” In plain English, the court is wondering why exactly Michael Flynn will be irreparably harmed if the government is forced to explain its case, particularly since he has the remedy of appealing any final decision to the D.C. Circuit.
It’s a question we’ve all been wondering.
Elizabeth Dye lives in Baltimore where she writes about law and politics.