Trump toady judge writes opinion directing Judge Sullivan to dismiss Michael Flynn case (updated)

Today the rule of law may have died in America.

The years-long project by Senator Mitch McConnell and far-right organizations to pack the federal courts with unqualified far-right ideologues who would put their stamp of approval on the illegal and unconstitutional acts of Republican presidents and legislators with the imprimatur of a ruling that their acts are legal has reached its full fruition.

Trumpism, the new American fascism, is ascendant at the same public opinion polls demonstrate that the American people are firmly opposed. This is a full-blown constitutional crisis.

This moment gives added urgency to the House Judiciary Committee hearing today into how Attorney General William “Coverup” Barr decapitated the D.C. office of the Department of Justice, and ordered his compliant lieutenants to dismiss the guilty plea of Michael Flynn in an unprecented subversion of justice.

Law & Crime reports, Trump-Appointed Judge Pens Majority Opinion Forcing Emmet Sullivan to Dismiss Michael Flynn Case:

A three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit on Wednesday morning directed the lower court judge overseeing the prosecution of Michael Flynn to dismiss the prosecution.

Read the full opinion: D.C. Circuit Court of Appeals Grants Flynn Writ of Mandamus by Law&Crime on Scribd.

“Upon consideration of the emergency petition for a writ of mandamus, the responses thereto, and the reply, the briefs of amici curiae in support of the parties, and the argument by counsel, it is ORDERED that Flynn’s petition for a writ of mandamus be granted in part,” Judge Naomi Rao wrote.

Earlier this year, Attorney General Bill Barr directed his subordinates to drop the case against President Donald Trump‘s former national security advisor. Judge Sullivan, however, did not automatically acquiesce to that demand–citing the Federal Rules of Criminal Procedure, specifically language requiring “leave of court” which is traditionally understood to grant judges some discretion over decisions to pursue or end a criminal prosecution.

Judge Emmett Sullivan, overseeing Michael Flynn’s prosecution, called the Justice Department’s attempt to drop its case against President Donald Trump’s former national security advisor “unprecedented” and asked the federal appeals court not to short-circuit his inquiry into the government’s actions.

U.S. District Judge Emmet Sullivan in Washington on Monday said in a court-mandated brief that the unusual developments give him a plausible reason to question the “bona fides” of the government’s motion. Sullivan said the surprise May 7 dismissal request cited “minimal legal authority” and didn’t come from the line prosecutors who worked on the three-year-old case, in which Flynn twice pleaded guilty to lying to the FBI in the early days of the Russia probe.

“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,” Sullivan said in his brief. The lead prosecutor in the case [- Brandon Van Grack, the chief of the Justice Department’s Foreign Agents Registration Act division -] stepped down just before the request was filed.

The decision comes as a grant for Flynn’s writ of mandamus request filed in late May. A writ of mandamus is an order which forces an inferior government official, here, Judge Sullivan, to take a certain action.

Per the decision:

Whatever the precise scope of Rule 48’s “leave of court” requirement, this is plainly not the rare case where further judicial inquiry is warranted. To begin with, Flynn agrees with the government’s motion to dismiss, and there has been no allegation that the motion reflects prosecutorial harassment. Additionally, the government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt.

Trump-appointed Circuit Judge Neomi Rao penned the majority opinion. The ruling is only a partial victory for Flynn, however, who also sought to have Judge Sullivan reassigned and taken off of the case. Sullivan previously exhibited arguable bias against the defendant by upbraiding him during a scuppered sentencing hearing by saying that Flynn “sold [his] country out” and asked the prosecution whether he could have been charged with treason.

This was Judge Sullivan’s exasperation with Michael Flynn getting off light, and not being asked to plead guilty to the full panoply of illegal acts documented by the DOJ, in which Judge Sullivan was fully informed.

[Judge Sullivan’s] defiance of Barr’s directive was viewed by Flynn and his defenders as more of the same–though Flynn’s defense team largely focused on those controversial sentencing hearing comments from late 2018.

Judge Rao’s opinion turns on “The government’s representations about the insufficiency of the evidence are entitled to a “presumption of regularity in the absence of clear evidence to the contrary.” Unbelievably, Judge Rao finds “On the record before the district court, there is no clear evidence contrary to the government’s representations.”

This is clearly contrary to the evidence. Michael Flynn freely and voluntarily plead guilty several times after being afforded every opportunity by Judge Sullivan to disavow pleading guilty. Flynn’s belated attempt to disavow his guilty plea means he committed perjury in Judge Sullivan’s court, something exclusively within the purview of the trial court in which it occurred for to impose sanctions for perjury. This appellate panel is circumventing the trial court’s exclusive authority.

The Court did not find judicial bias to reassign the case.

“We deny Flynn’s petition to the extent he seeks reassignment of the district judge,” the opinion continues. “This case does not meet the ‘high bar’ for reassignment, which would be appropriate only if the district judge’s conduct was ‘so extreme as to display clear inability to render fair judgment.’ … [T]he district judge’s conduct did not indicate a clear inability to decide this case fairly. We decline to reassign the case to a new judge simply to grant the government’s Rule 48(a) motion to dismiss.”

An opinion dissenting in part was filed by Circuit Judge Wilkins, who rejected the majority’s opinion that “The government’s representations about the insufficiency of the evidence are entitled to a “presumption of regularity in the absence of clear evidence to the contrary.”

Tellingly, the majority opinion argues at length responding to each of the particulars of Judge Wilkins’s dissent, a clear indication that they find his dissent persuasive and want to preemptively respond before this case is appealed further to the full en banc U.S. Court of Appeals for the District of Columbia Circuit, or the U.S. Supreme Court.

Judge Wilkins in his dissent makes clear that this panel of judges is exceeding their own authority in ordering a trial judge to dismiss Michael Flynn’s guilty plea before the trial judge has even held a hearing on the merits of the government’s motion to dismiss the guilty plea. From the opening paragraph of Judge Wilkins’s dissent:

It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant “leave of court” pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they compel its rejection. I therefore respectfully dissent from the majority’s grant of the writ.

Today’s extraordinary ruling is a violation of the rules of procedure and the rule of law, and must be further appealed by Judge Emmett Sullivan. This is an assault on the independence of the judiciary by the executive branch, i.e., the Trump “Injustice” Department, and complicit Republican judges serving on this panel of judges, in particular a toady appointed by Trump (Neomi Rao was rated not qualified by the American Bar Association, but was put on the court by Republican senators anyway).

This is a breaking news story.

UPDATE: On Wednesday evening, Judge Sullivan did not follow the order to dismiss the Flynn case. Instead, Sullivan issued a stay of the proceedings. It appears that Judge Sullivan intends to file a petition requesting en banc review from the entire appeals court. (If granted, it will set aside today’s ruling).

UPDATE: Norm Eisen, Senior Fellow at Brookings Institute, Former Impeachment Special Counsel, US Ambassador, and Obama White House Ethics Czar, tweets:

Just finished the Flynn decision.

It is an excrescence, as the dissent points out. It guts one of the most important safeguards of our democracy: an independent judiciary.

Sullivan should seek en banc review. He will win if he does–the opinion is that weak.

— Norm Eisen (@NormEisen) June 24, 2020

Good catch by Glenn Kirschner, former federal prosecutor and NBC News legal analyst:

Silver lining? Flynn can now be charged with ALL crimes come January, including the other felonies he admitted to in the Statement of Offenses in this case AND the prosecutors will not have to fight to undo a corrupt Trump pardon (and no 6-month cap). https://t.co/0Q6NGn1iMG

— Glenn Kirschner (@glennkirschner2) June 24, 2020

The Biden DOJ will have the opportunity to charge Mike Flynn with all of the felony counts that he should have been facing in this case. Flynn already admitted to all of his crimes in his proffer when he was agreed to plead guilty and become a cooperating witness.

UPDATE: Legal analyst Mark Joseph Stern at Slate says “Donald Trump’s most brazenly partisan judicial appointee has come through for the president once again.” Trump Judge Neomi Rao’s Flynn Opinion Is Dangerous and Anti-Democratic (excerpt):

Wednesday’s decision by the U.S. Court of Appeals for the District of Columbia Circuit will almost certainly be appealed to the full court and possibly the Supreme Court after that. If upheld, Rao’s ruling will set a terrible legal precedent. But equally devastating are its broader, long-term implications for judicial independence.

* * *

First, Rao more or less repealed Rule 48(a). Ignoring its history and purpose, Rao insisted judges may only refuse to grant “leave of court” in cases involving prosecutorial harassment. This claim is false: The Supreme Court itself has recognized that courts have also refused to grant “leave of court” if it is “clearly contrary” to the “public interest.” Second, Rao wrote that the government deserves “the presumption of regularity” because “there is no clear evidence” that it acted unethically. (There is, of course, a mountain of evidence to the contrary, but Rao dismisses these “news stories, tweets, and other facts outside the record” entirely.) Third, Rao declared that Sullivan is not allowed to scrutinize the government’s conduct or force prosecutors to explain their decision in open court. Why? Because doing so would “result in specific harms” to the executive branch, she wrote, compelling it “to reveal the internal deliberative process” in violation of the constitutional separation of powers.

These three arguments are rooted not in binding precedent, but in Rao’s own improvised sense that federal prosecutors are unaccountable to anyone but the president.

* * *

In dissent, Judge Robert L. Wilkins, a Barack Obama appointee, shredded each of Rao’s fictions with righteous indignation. Wilkins appears to be shocked that Rao would reach this “trailblazing result” by contorting or ignoring precedent. “This is a case,” he reminded the majority, “about whether a district judge may even hold a hearing on a Rule 48(a) motion.” There is no precedent to support Rao’s pronouncement that merely holding a hearing infringes on the president’s Article II powers. Furthermore, Sullivan had asked Gleeson to advise him on Flynn’s alleged perjury before the court. Federal judges have “inherent authority” to hold perjurers in contempt. Yet Rao prohibited Sullivan from considering whether to hold Flynn in contempt. It is as if Rao began with the conclusion that Flynn must be let off the hook entirely then worked her way backward to find flimsy, novel reasons why.

Rao has run interference for the president before to shield him from meaningful oversight. She routinely acts like Trump’s personal protector rather than an impartial judge, fabricating avant-garde legal theories out of whole cloth that happen to favor the executive every time. But her Wednesday decision crosses the line into new territory. The full D.C. Circuit, sitting en banc, can and should reverse her opinion, which presents a shockingly expansive theory of executive power that overrides the federal judiciary’s ability to identify and stamp out prosecutorial corruption.

This thoroughly corrupt judge is going to face an impeachment someday.