A former federal appellate judge said that last week’s D.C. Circuit decision ordering Judge Emmett Sullivan to dismiss the criminal case against Michael Flynn was “grievously wrong,” failing to address any of the substantive legal questions before the court. He argued that, while the court’s analysis was severely defective, the political circus that would inevitably accompany any further litigation may not merit a rehearing by the full court–particularly because dismissal of the case is likely what would ultimately be “required by law.”
According to J. Michael Luttig, a Fourth Circuit judge from 1991 to 2006, the D.C. Circuit’s ruling was fundamentally flawed in that it did not answer three questions of that were before the court.
“In considering Mr. Flynn’s request, the appeals court had before it three simple questions: Does Mr. Flynn have a clear and indisputable right to have his case dismissed — before Judge Sullivan rules? Does he have any other remedy for the harm he may suffer if the case is not dismissed immediately? And last, is ending Mr. Flynn’s prosecution now, before Judge Sullivan rules, ‘appropriate under the circumstances’?” Luttig wrote in Monday’s New York Times. “As it turns out, the Court of Appeals panel decided none of these three questions.”
Luttig pointed out that Judge Neomi Rao’s majority opinion tackled the legal questions as though the government – not Flynn – had petitioned the court for mandamus.
“In short, the court mistakenly believed that if the government is entitled to dismissal of its prosecution against Mr. Flynn now (which it is not, by the way), then Mr. Flynn is entitled to dismissal of his prosecution by the government now, too. But that is just not true, because the government’s rights and interests in immediate dismissal are vastly different from and greater than Mr. Flynn’s, which are lesser by far. And it is Mr. Flynn, not the government, who sought dismissal before Judge Sullivan can rule,” Lutti wrote. “Knowingly or not, the Court of Appeals simply appears to have bungled perhaps the most consequential political constitutional case in recent memory.”
Luttig said that, despite the circuit court’s erroneous reasoning, he believed a decision as to whether the full court should rehear the case should not be taken lightly, as it would “unavoidably” be viewed as the judiciary “evening the political score” in an already overly politicized case. Furthermore, because the panel’s decision was so substantially misguided, the opinion “will never be regarded as precedent,” further reducing the need for rectification.
“The government’s facially and unrebutted reasons for wanting to dismiss the prosecution — namely that the government itself wrongly investigated and prosecuted Mr. Flynn in the first place and then withheld exculpatory evidence from him in the second place — are constitutionally compelling,” Luttig wrote. “Accordingly, the law will almost certainly countenance neither Judge Sullivan’s proposed interrogation of the government as to the political ulterior motives and purposes that he suspects — but only suspects — nor at the end of the day a decision to deny his leave for the government to dismiss its prosecution of Flynn.”
The former judge takes the position that the decision to grant mandamus was “grievously wrong,” “premature” and “ill reasoned”; still, dismissal is the result that would have “almost certainly” been “required by law” even if Sullivan was permitted to conduct a hearing.
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