On Monday, in the latest twist in the saga of former national security adviser Michael Flynn, the full federal appeals court in Washington sent the case back to the trial court to rule on the government’s controversial motion to dismiss. But the outcome of that motion is increasingly beside the point; this case has long since stopped being primarily about Flynn’s crime and punishment. Instead, it’s become a prime example of the power of the judiciary to push back against, and help expose, the Trump administration’s abuses of the justice system.
Flynn pleaded guilty in December 2017 to lying to the FBI. He cooperated for a time with the investigation by special counsel Robert S. Mueller III, but earlier this year moved to back out of his plea. Then, in May, in a remarkable development, the Department of Justice moved to dismiss the case, abandoning legal arguments it had made for more than two years and agreeing with Flynn that he never should have been prosecuted.
Because a motion to dismiss requires “leave of court,” District Judge Emmet G. Sullivan prepared to hold a hearing to consider the motion. That prospect caused Flynn, with the government’s support, to petition the U.S. Court of Appeals for the D.C. Circuit for a writ of mandamus — basically an order requiring Sullivan to dismiss the case without a hearing. And in yet another remarkable development, a three-judge panel agreed and ordered Sullivan to do so. But this week, the full court sensibly reversed that decision, noting that it had found no instance where the case was ordered dropped before the trial judge even had a chance to consider the motion.
So Sullivan will hold his hearing. In the end, he might well grant the motion to dismiss. Even if he doesn’t, and moves to sentence Flynn, it seems almost certain Trump would then pardon his former adviser. So regardless of what happens, Flynn is unlikely ever to see the inside of a jail cell. But the proceeding before Sullivan is important for other reasons.
First, it restores what judges in this case have referred to as “regular order.” Typically, the trial judge holds hearings, considers arguments and rules on motions. A party unhappy with that ruling may then appeal. But a party may not just skip that process and get the appeals court to tell the judge what to do, even if the correct outcome seems clear. The D.C. Circuit’s en banc decision reaffirms this core principle. Friends of the president don’t get to play by special rules, even if the Justice Department supports their efforts.
More importantly, this hearing allows Sullivan to explore the true reasons behind the government’s abrupt about-face in a case involving a presidential ally. These events suggest political interference in the criminal process and an abuse of prosecutorial power. There is plenty of smoke — and now Sullivan can probe to expose any underlying fire.
This sunlight is what the Justice Department and Flynn have desperately sought to avoid. The government actually argued in the appeals court that an order to dismiss the case was necessary to prevent the harm to the government that would result if required to explain itself. This is a theme with this administration: It stonewalls congressional oversight, ignores subpoenas, seeks to avoid judicial scrutiny and generally maintains that no one has the right to question what it does.
But there are plenty of questions here that need to be asked. For the government to seek to dismiss a case after a guilty plea is basically unheard of. The government’s legal arguments are laughable, contrary to years of court precedent and department practice. The career prosecutor assigned to the case already withdrew rather than support the motion. Let’s see what prosecutor is now willing to stand in front of Sullivan and make those arguments with a straight face. That’s going to be a career-defining moment for someone — and not in a good way.
In the face of a Congress that has been alternately compliant or largely impotent, the independent judiciary has been the branch of government most able and willing to fight the excesses of this administration — witness the Supreme Court’s recent rejection of Trump’s claims to be absolutely immune from investigation. Now, Sullivan has a chance to build a record concerning what really went on in the Flynn case. That kind of public reckoning is probably the best thing that can emerge from the wreckage at this point.
Sullivan may well conclude, in the end, that he lacks the authority to deny an unopposed motion to dismiss. He may hold his nose and grant the motion — but he doesn’t have to pretend it doesn’t stink. And he doesn’t have to make the judiciary a silent, powerless accomplice to this abuse of the justice system.