A Trump judge’s attempt to bail out Michael Flynn ends

A federal appeals court’s 8-2 decision in In re: Michael T. Flynn, handed down Monday, affirms — over the obje

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A federal appeals court’s 8-2 decision in In re: Michael T. Flynn, handed down Monday, affirms — over the objection of two right-wing judges — that the ordinary rules that apply to any other litigant also apply to President Trump’s former national security adviser. Michael Flynn, a former general who briefly served as Trump’s top national security aide, won’t be able to have criminal charges against him dropped before his case is heard by a federal trial judge.

It’s hardly an earth-shattering legal event. But the decision is significant because it unwinds a deeply radical opinion by one of President Trump’s most partisan appointees to the federal bench.

It remains likely that Flynn will escape federal charges that he lied to the FBI. And it is likely that he will do so even though he once pleaded guilty to those charges.

But Flynn, at the very least, will not get a special exception to the rules governing criminal appeals.

The facts underlying Flynn’s case are, to say the least, unusual. In 2017, Flynn pleaded guilty to lying to the FBI regarding his contacts with Russian Ambassador Sergey Kislyak. Nearly three years later, however, Trump’s Justice Department decided to drop the charges against the former Trump aide. Though DOJ admits that Flynn lied to investigators, the Justice Department now claims that these lies could not have “conceivably ‘influenced’ an investigation that had neither legitimate or counterintelligence or criminal purpose.”

It is highly unusual for prosecutors to drop charges years after obtaining a guilty plea. And the Federal Rules of Criminal Procedure only permit the government to dismiss a prosecution “with leave of court.” So Judge Emmet Sullivan, the trial judge presiding over this case, decided to hold a hearing to address how he should proceed — and to consider whether Flynn should be held in contempt for perjury, a charge the court may pursue without DOJ’s consent.

Additionally, Sullivan asked a court-appointed lawyer to argue the case against Flynn, a common practice when parties appearing before a court have presented important arguments at the heart of that case.

Judge Sullivan has yet to hold his hearing. And he hasn’t ruled at all on whether the prosecution against Flynn should be dismissed. It is possible — likely, even, since judges ordinary defer to prosecutors who wish to dismiss a case — that Sullivan will allow the original charges against Flynn to be dropped. Should Sullivan rule against Flynn, Flynn always has the option of appealing that decision to the United States Court of Appeals for the District of Columbia Circuit — the same court that ruled against him on Monday.

But Flynn felt that he should not have to comply with the ordinary process that governs nearly every case that is heard by a federal district court. Typically, the trial judge hears a case, decides it first, and then the case may be heard by an appeals court after the trial judge rules. Instead, Flynn sought what is known as a “writ of mandamus,” a rarely granted court order that sometimes allows an appeals court to intervene against a trial judge’s wishes.

In any event, the upshot of the DC Circuit’s decision in Flynn is that Flynn will have to comply with the same procedural rules as anyone else. Quoting from a 1967 Supreme Court opinion, the court explains that “a petition for a writ of mandamus ‘may never be employed as a substitute for appeal.’”

Rather, mandamus relief is only available if “the party seeking issuance of the writ [has] no other adequate means to attain the relief he desires.” Because Flynn has another means available to him — he can argue his case before Judge Sullivan, then appeal Sullivan’s decision if he doesn’t like it — mandamus relief is inappropriate.

The DC Circuit’s Flynn ruling is a fairly rudimentary application of longstanding law. So rudimentary, in fact, that it’s surprising that the full DC Circuit needed to consider this case at all.


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