Gen. Flynn Wins -- For Now??

(AP Photo/Carolyn Kaster, File)

The three Judge panel of the Circuit Court of Appeals for the District of Columbia has issued a written decision and opinion in favor of General Michael Flynn, and ordering District Court Judge Emmet Sullivan to grant the motion to dismiss made by the Department of Justice pursuant to Federal Rule of Criminal Procedure 48(a).

My colleague Bonchie wrote about the breaking news earlier today.

I previously wrote a two part story on the oral arguments in this case.

Part One can be found here.

Part Two can be found here.

The decision announced today was 2-1, with Circuit Judges Henderson and Rao in the majority, and Circuit Judge Wilkins dissenting.  The Opinion was authored by Judge Rao – which under the rules of the court meant that Judge Henderson assigned the drafting of the opinion to her.

Judge Rao’s opinion is somewhat “expansive” on a couple topics, and that might open the door for the full court to seriously consider whether to take up review of the case “en banc.”   The dissenting opinion issued by Judge Wilkins is largely unpersuasive in my view on legal grounds, but he does hold out the possibility of “middle ground” that I think could persuade other Circuit Judges to take the matter up.

I’m not going to spend a lot of time here going through the legal reasoning and conclusions in detail.  Frankly, everything Judge Rao wrote could become “dust in the wind” in 72 hours if the matter is taken up en banc, so I’m not inclined to spend a lot of time explaining her legal reasoning only to have that become irrelevant.  If the decision stands, I’ll come back later and look more closely at what she wrote.

But for now, my reading is that the “self-correction” argument probably carried the day more than anything else.  Remember that it was in the very last question and answer to Dep. Solicitor General Wall that Judge Henderson made reference to the issue of “self-correction”, and what was the competing interest of the Judicial Branch if the Executive Branch decided to revisit an earlier decision that it later deemed to have been made in error.

Judge Rao addresses this issue at the end of her opinion, but based on everything she said, I think this issue was the one on which Judge Henderson voted with Judge Rao.  I think Judge Henderson allowed Judge Rao to draft the opinion simply so she wound not — herself — be in the position of dictating to Judge Sullivan that his approach to deciding the motion was unsound.

Judge Rao sets up the outcome by limiting it to “rare” and “extraordinary” cases where Rule 48(a)’s “leave of court” language would allow for the kind of broad inquiry into the decision-making by the Executive Branch such as that suggested by Judge Sullivan in his orders following the filing by DOJ of its motion to dismiss.  She then says this is not such a “rare” or “extraordinary” case.

She mentions that the motion is based on “extensive discussion of newly discovered evidence casting Flynn’s guilt in doubt.”  She says “insufficient evidence” is the “quintessential justification for dismissing a case,” and that the government’s representations about insufficiency of the evidence get a presumption of regularity.  She acknowledges this is only a “presumption”, but states that based on the record as it exists, there is no “clear evidence” to overcome the presumption.

She said this view is bounded by the fact that it is not for the court to “superintend” government charging decisions.  So the “presumption” can’t be overcome merely with the possibility of disagreeing with the change in position taken by the government.  She held that the stated intention to scrutinize the reasoning and motives of Executive Branch officials in deciding to reverse course are irreparable harms that cannot be remedied on appeal — the damage will have been done regardless of the outcome.

Some of her best comments were with regard to Judge Sullivan’s appointment of Ret. Judge Gleeson as “amicus.”  She stated that there is no basis in Rule 48(a) for the appointment of an advocate to defend continuing the case.  Such a process forces the government to now only answer the questions of the court, but to defend against an “opposition” when none exists in the case.  She noted the invitation to the public to file amici to oppose the government motion, that Gleeson had already proposed in a court filing to conduct further factual development by him, and that Gleeson has filed a brief concluding both “pretext” and “gross prosecutorial abuse” by the government — citing to news stories, tweets, and other facts outside the record before the district court.

Gleeson also encourages the district court to scrutinize representations made by the DOJ motion regarding the strength of its case against Flynn, where the case law all states courts are powerless to review that subject.

Responding directly to issues raised by Judge Wilkins in his dissent, she make a few specific points which I found to be effective.

Judge Wilkins suggests that the “complete reversal” by DOJ is a basis to overcome the presumption of regularity, and to inquire further as Judge Sullivan is proposing.  Judge Rao points out the obvious — every time DOJ files a motion under Rule 48(a) it is making a “complete reversal.”   DOJ sought the indictment or filed the information in the first instance, so every motion to dismiss is an abandonment of what it started.  So the fact of the filing of the motion is not relevant to anything in terms of the scope of an inquiry under Rule 48(a).

There is a back-and-forth between the two opinions on the issue of whether the discussion in US v. Fokker regarding Rule 48(a) is dicta or not.  I’m going to leave that for later.

Judge Rao points out that the district court has no means available to maintain a prosecution going forward if it denies the Rule 48(a) motion.  Because of that concern, she argues that a “public interest” test advocated by Judge Wilkins, as well as the opponents of the motion is unworkable.  The outcome of a Rule 48(a) motion cannot turn on whether the district judge decides if the dismissal is in the “public interest” because he cannot mandate the continuation of the prosecution by the government when he believes that to be the case.

On whether the extraordinary relief that mandamus represents is warrants:

“The novelty of the district court’s usurpation of power heightens rather than lessens the need for mandamus.”

On Judge Sullivan not having acted yet so there is nothing for an appeals court to decide:

“[T]he court has appointed one private citizen to argue that another private citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue its charges.”

Unwarranted judicial scrutiny of 48(b) motions puts the court in the position of directing to the government with regard to who it should and should not prosecute.   Article III does not grant powers of inquisition and seeking out law violators to courts.

Not a case about whether the Court can hold a hearing, it’s a case about whether after the govt has presented its reasons for wanting to dismiss a case, the DC can prolong the prosecution by hiring an amicus, encouraging public participation in the decision-making process of the court, and probing the gov’t motives for its request.

As for the dissent, at this point I want to point out only the following — Judge Wilkins suggested as a possible outcome that the Court could issue a decision with instructions to Judge Sullivan about the appropriate limits that his inquiry must confine itself, and then retain jurisdiction over the matter to immediately address any concerns of the parties with regard to Judge Sullivan abiding by those limits.

This was actually what I predicted would be the outcome.  I suggested Judges Henderson and Wilkins would send it back to Judge Sullivan to decide the motion, but cut off much of the process that he contemplated using.  The fact that Judge Wilkins has suggested this very thing in his dissent is what I fear might be the point other Circuit Judges seize upon to take the case to “en banc” review.

That process involves a vote by all Judges of the Circuit Court — but not Senior Judges — whether or not to re-hear the case, take a vote of the full court, and issue a new opinion.  Right now the composition of the Court is that there are 11 Democrat appointed Judges and only 4 GOP appointed Judges.

Judge Rao’s opinion stakes out some serious positions — and she does so on behalf of the entire court, unless the full court steps in to say otherwise.  She’s a very recent addition to the Court, and there might well be some sentiment among judges who have been there much longer to not let her views be the final views of the DC Circuit on these matters.

So, General Flynn wins — for now.  There may be another chapter to this story yet to be written.