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Opinion What the appeals court should — and shouldn’t — do in the Flynn case

Judge Emmet G. Sullivan in 2009. (Dominic Bracco II/For The Washington Post)

J. Michael Luttig served as a judge on the U.S. Court of Appeals for the 4th Circuit from 1991 to 2006.

The politically charged issue of whether a federal judge should grant the government’s request to dismiss the prosecution against former national security adviser Michael Flynn has brought out the partisan mobs on all sides of the issue. Fortunately for our country, the issue will be decided not by the rule of mobs, but by the rule of law.

The rule of law instructs that U.S. District Court Judge Emmet G. Sullivan has the power — indeed, the obligation — to determine whether dismissal of Flynn’s case would be in the public interest and whether the integrity of the judicial process would be compromised by granting the government’s dismissal request. This authority stems from the federal criminal rules of procedure and the trial judge’s inherent authority. If this authority were properly exercised, the judge’s refusal to dismiss the case would not impermissibly usurp the executive’s exclusive constitutional power to decide whether to bring or maintain a criminal prosecution.

The devil is in the word “properly.” In Flynn’s case, the judge has already abused his wide discretion by inviting outside advocates to weigh in, which would make a circus of the solemn judicial proceeding, and by selecting an outside party to make the case against dismissal who has already made clear his bias against dismissal via this very newspaper.

In response, Flynn’s lawyers have taken the unusual step of asking the federal appeals court to order Sullivan to dismiss the case, arguing that prosecutors have the sole power to decide whether to continue the prosecution. Ordinarily, this effort would fail.

However, this is not the ordinary case. In this highly extraordinary case, the appeals court should step in even at this early stage — not to order that the case be dismissed, but to send it back to a different trial court judge for further review. The court of appeals is bound to permit (and require) a trial court to decide in the first instance those questions that are now before the court.

Ordering the trial judge to dismiss the case at this stage would be premature. The Federal Rules of Criminal Procedure allow the government to dismiss an indictment only “with leave of court.” Those words contemplate that the trial judge has a constitutionally important role to play in whether a prosecution is dismissed. If the court of appeals were to order Sullivan to dismiss the case now, the full appeals court or, if not, the Supreme Court, should reverse that error.

The appeals court, though, would be justified in intervening in the case now to correct the process the judge has established for moving to decision. Sullivan has done two highly unusual, and troubling, things. First, he invited amici, or outside “friends of the court,” to submit arguments on whether dismissal of the prosecution would be in the public interest. These are questions for the judge to decide, not for the public to debate.

Second, and more disturbing, he tasked a retired federal judge, John Gleeson, with making the case that Flynn’s guilty plea should not be dismissed. Bringing in an outside party in essence to argue for the continued prosecution of the case is unusual enough, but Gleeson, though a well-respected former judge, is the wrong choice. In an op-ed piece in which he all but argued that Sullivan should not grant the motion to dismiss, he revealed his bias on the very question in which his impartial advice is being sought.

The court of appeals should therefore proceed as follows: grant the writ of mandamus; disallow amicus briefs; have the judge select a different adviser to assist him confidentially, if necessary and the court of appeals agrees; and urge that the judge rule promptly on the motion to dismiss, explaining his reasoning in full for appellate review.

There are ample grounds in the actions the district court has already taken for the appeals court to order that the government’s motion to dismiss be heard by a different judge, and it should so order.

Were either Sullivan or another judge eventually to decide that it would be contrary to the public interest to dismiss the prosecution or that to do so would undermine the integrity of the judicial process, that judgment could be appealed.

The appeals court would then confront a novel and nettlesome question. The trial court has indisputable, but very limited, power to refuse the government’s request. Here, because the government contends that the case should be dismissed because of its own confessed misconduct, and therefore the government’s prosecutorial interest is at its zenith, it would be exceedingly difficult for a court to substitute its view and override the government’s contrary assessment. Under our Constitution, the decision whether to prosecute to the final stages of conviction and sentence is committed wholly and exclusively to the executive branch of the government — almost.

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George F. Will: Our plea bargain system can make the innocent admit guilt. Enter Michael Flynn.

Marc Thiessen: Someone committed a crime in the Michael Flynn case. It wasn’t him.

Paul Waldman: Michael Flynn isn’t a martyr. He’s a crook and a crackpot.

Randall D. Eliason: The judge in the Michael Flynn case has taken some unusual steps. Here’s why they’re appropriate.

Michael Morell: The only culprit in the Flynn ‘unmasking’ scandal is the Trump administration

Chuck Rosenberg: The long list of people who thought Flynn’s lies were material

David Ignatius: If Michael Flynn did nothing wrong, why didn’t he tell the truth?