Flynn pleaded guilty in December 2017 to one count of lying to the FBI and cooperated with the investigation conducted by then-special counsel Robert S. Mueller III. After the Mueller inquiry concluded, however, Flynn hired a new lawyer who moved to withdraw Flynn’s guilty plea and to have the case dismissed, based on alleged government misconduct. While those motions were pending, the Justice Department, in a stunning reversal, filed a motion to dismiss Flynn’s case, abandoning a prosecution it had pursued for more than two years.
Flynn’s case has become a right-wing cause célèbre, with President Trump and his supporters routinely claiming Flynn was the innocent victim of a rogue FBI. The Justice Department’s abrupt reversal, therefore, raised questions about whether Flynn was receiving favorable treatment because of his connections to the president. (In an ironic twist, on the same day the D.C. Circuit decision was announced, a former prosecutor in the case of another Trump ally, Roger Stone, testified before Congress about political pressure exerted by senior Justice Department officials on Stone’s behalf.)
Sullivan indicated he was not going to accept the government’s dismissal at face value. He appointed a retired federal judge, John Gleeson, to present arguments against the motion. But rather than wait for Sullivan to decide, Flynn’s lawyer petitioned the D.C. Circuit for a writ of mandamus — an extraordinary remedy in which the court of appeals orders a judge to take action. On Wednesday, the court granted that writ and ordered Sullivan to dismiss the case.
In doing so, the court of appeals has taken the highly unusual step of saying Sullivan can’t even consider the motion. To be entitled to such an order, Flynn was required to demonstrate that his right to relief was “clear and indisputable” and that he had no other adequate remedy. He should have failed on both counts.
Federal criminal procedure provides that the government may dismiss a case only “with leave of court.” This language indicates the judge has some role to play, though that role may be limited. Even when both sides agree to dismissal, some courts have ruled that the motion may be denied if it is “contrary to the public interest.” The Supreme Court has never decided that question.
At minimum, then, the law is far from “clear and indisputable” that Sullivan must automatically grant the motion. Gleeson has argued that the decision to drop Flynn’s case was a “gross abuse of prosecutorial power” and would undermine the public’s faith in the rule of law. Sullivan should have been allowed to consider whether that was true and, if so, whether he could — and should — deny the motion to dismiss as contrary to the public interest.
Nor can Flynn properly show that he has no other remedy. Like any other defendant, his remedy is to litigate his motion before the judge and appeal if he loses. The appeals court essentially held that the government itself would be irreparably harmed by the hearing because it might have to explain its reasons for the dismissal. But as Judge Robert L. Wilkins pointed out in his dissent, the government did not seek mandamus itself — it merely supported Flynn’s petition. The court improperly allowed Flynn to piggyback on the claim from the government that it would be harmed by Sullivan’s inquiry.
The appeals court rightly pointed out there is a “presumption of regularity” afforded prosecutorial decisions. But presumptions, by definition, may be overcome. The Justice Department’s decision to drop Flynn’s case appears highly irregular. Given the many other allegations of Attorney General William P. Barr’s politicization of his agency and the flimsy arguments offered in the motion to dismiss, there is more than sufficient justification for Sullivan to ask prosecutors to explain their actions before deciding whether to grant his “leave of court.”
Sullivan’s hearing could have at least cast some sunlight on the administration’s actions, even if he ultimately granted the motion. Through that check and balance, the judge could have provided the public with valuable information it could use to evaluate the performance of Trump’s Justice Department. But the appeals court has now foreclosed any judicial examination of whether Flynn’s dismissal may be based on improper political considerations.
Allowing Sullivan to decide the novel legal issues raised by this case would have been following “regular order.” This decision by the appeals court is anything but. And it has also regrettably buttressed the Trump administration’s general view that the other branches of government have no business questioning its actions.
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