The Washington PostDemocracy Dies in Darkness

Opinion Trump’s authoritarianism in the streets is being matched in the courts

Michael Flynn at the White House on Feb. 1, 2017. (Jabin Botsford/The Washington Post)

Joshua A. Geltzer and Neal K. Katyal are law professors at Georgetown University Law Center. Jennifer Taub is a professor at Vermont Law School. Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard.

The Trump administration’s authoritarian behavior on the streets is being matched by its authoritarian positions in the federal courts. On Monday, as the administration used military force to push peaceful protesters out of Lafayette Square, administration lawyers filed an astonishing brief in the federal appeals court down the street, urging the court to order the trial judge to dismiss the case against Michael Flynn.

The brief represents a remarkable new position by the Trump Justice Department: The doors of federal courthouses should be closed to hearing arguments other than those advanced by the department itself, and federal judges may not even inquire into whether the administration has acted improperly.

When the Justice Department moved abruptly to drop the Flynn case — after he pleaded guilty (twice) and as he was awaiting sentencing — U.S. District Judge Emmet G. Sullivan took two steps. He appointed a “friend of the court” to argue the position that the Justice Department had suddenly abandoned; and he called a hearing to scrutinize the department’s about-face.

The Justice Department told the appeals court that it should take the extraordinary step of intervening in the case — before Sullivan has ruled or even held a hearing — to stop him from doing so. “Simply put, the district court has no authority to reject the Executive’s conclusion,” the department said.

In other words: “None of your business, Judge Sullivan.” The Justice Department wants the case dropped, and so that’s it — the case should just go away, no questions asked, before the American people learned what happened.

Remember that this is no run-of-the-mill appeal — the department is demanding emergency relief, relief that the department itself acknowledges is a “drastic and extraordinary remedy.” It’s revealing, in the midst of a pandemic and a national criminal-justice crisis, what the Trump administration sees as an emergency: a federal court hearing legal arguments and discovering the facts. All of that is not merely forbidden, the Justice Department argues — it must be stopped now, before it can take place. And that, for the Trump administration, is the emergency: a court uncovering the facts of what happened and laying them out for the public to learn.

If the goings-on at the federal courthouse seem a world away from protesters facing down rubber bullets and military helicopters, think again: This is the other side of the same coin, if less vicious in form. Courts — real courts, where every legitimate party gets to make every legitimate argument — are the last bastion against authoritarianism.

That’s an American tradition: In the aftermath of the Civil War, the Supreme Court ruled in Ex parte Milligan that U.S. citizens contending they were not belligerents could not be subjected to military tribunals when civilian courts were open and functioning. As President Trump — “your president of law and order” — threatens to invoke the 1807 Insurrection Act to deploy the military to put down what he sees as an ongoing rebellion, Americans may find themselves needing robust, independent courts more than ever.

And judges like Sullivan. His moves in the face of the Justice Department’s motion to dismiss the Flynn case were indeed unusual — but they came in response to what seems an unprecedented decision by the department to abandon a guilty plea it secured.

As Sullivan’s lawyers explain in their brief to the appeals court, “It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime. It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.”

The appeals court, they add, is being asked to consider whether it should “forbid even a limited inquiry into the government’s motion, and order that motion granted. The answer is no. … The government’s motion is pending before Judge Sullivan and could well be granted, so Mr. Flynn can obtain the exact relief he seeks through ordinary judicial process.”

The Trump administration’s view is that Sullivan erred by not immediately and automatically acceding to the government’s request that the case against Flynn be dismissed. But the federal rule that provides for dismissing indictments provides that it can be done only “with leave of court.” Federal judges are not supposed to be potted plants. This case long ago ceased being about a single judge. It’s about the right of all of us to learn what happened at the Justice Department and avoid a coverup.

It may be inconvenient, at least in Trump’s view, for the administration to have protesters at the White House. And it may be inconvenient, at least in the Trump Justice Department’s view, to have its extraordinary action on behalf of one of the president’s allies scrutinized by a federal court. But that is what our system of free speech and an independent judiciary entails — whether Trump and his enablers like it or not.

The White House video of Trump's visit to St. John's Episcopal Church in D.C. erases the violent attack on protesters by authorities that preceded it. (Video: The Washington Post, Photo: Patrick Semansky/AP/The Washington Post)

Read more:

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.

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

David Von Drehle: In the midst of a pandemic, Trump is obsessing over Michael Flynn

Letter to the Editor: Michael Flynn is not a plea bargain victim

John Gleeson, David O’Neil and Marshall Miller: The Flynn case isn’t over until the judge says it’s over