Former Appellate Judge Says D.C. Circuit Should Boot Judge from Michael Flynn Case, But with This Catch

A former federal appellate judge said on Memorial Day that the Court of Appeals for the District of Columbia Circuit should take a lesser-discussed path while disposing of the Michael Flynn case. That path, per J. Michael Luttig, a Fourth Circuit judge from 1991 to 2006, is for the appeals court to send the case back to the district court for review by a judge other than U.S. District Judge Emmet Sullivan without ordering the case dismissed.

“Ordering the trial judge to dismiss the case at this stage would be premature,” Luttig said.  His suggested move would grant only one of the wishes of Flynn’s legal team.  They want the D.C. appeals court to order both a new judge assigned and to order the case dismissed with prejudice, so that it can never be filed again.

“In this highly extraordinary case, the appeals court should step in even at this early stage — not to order that the case be dismissed, but to send it back to a different trial court judge for further review,” Luttig wrote in the Washington Post.  “The court of appeals is bound to permit (and require) a trial court to decide in the first instance those questions that are now before the court.”

The questions, legally, are (1) whether Flynn should be allowed to withdraw his guilty plea, and (2) whether the case should be dismissed at the motion of the Department of Justice.

Luttig spent several paragraphs waxing on about the rule of law, the separation of powers, and that pesky line in the Federal Rules of Criminal Procedure — “with leave of court.” Prosecutors cannot dismiss indictments at this stage without seeking a “leave of court,” and a debate has raged recently over what a “leave of court” must look like in this case.

“Those words contemplate that the trial judge has a constitutionally important role to play in whether a prosecution is dismissed,” Luttig said. “If the court of appeals were to order Sullivan to dismiss the case now, the full appeals court or, if not, the Supreme Court, should reverse that error.”

He further said that “U.S. District Court Judge Emmet G. Sullivan has the power — indeed, the obligation — to determine whether dismissal of Flynn’s case would be in the public interest and whether the integrity of the judicial process would be compromised by granting the government’s dismissal request.”

But Luttig also rebuked Judge Sullivan rather harshly: “In Flynn’s case, the judge has already abused his wide discretion by inviting outside advocates to weigh in, which would make a circus of the solemn judicial proceeding, and by selecting an outside party to make the case against dismissal who has already made clear his bias against dismissal via this very newspaper.”

The amicus curiae appointed by Sullivan previously commented on the matter in the Post. Luttig said it wasn’t a good look.

Luttig, the former appellate judge, was critical of that line of reasoning by Gleeson while also being critical of the tactics employed by Flynn’s team.

“Flynn’s lawyers have taken the unusual step of asking the federal appeals court to order Sullivan to dismiss the case, arguing that prosecutors have the sole power to decide whether to continue the prosecution,” Luttig said.  “Ordinarily, this effort would fail.”

Here was Luttig’s roadmap forward:

The court of appeals should therefore proceed as follows: grant the writ of mandamus; disallow amicus briefs; have the judge select a different adviser to assist him confidentially, if necessary and the court of appeals agrees; and urge that the judge rule promptly on the motion to dismiss, explaining his reasoning in full for appellate review.

Luttig reasoned that this scenario would result in a decision not plagued by the current shenaniganry. Luttig was nominated to the bench by President George H. W. Bush. He resigned to become general counsel at Boeing.

[image via Chip Somodevilla/Getty Images]