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


WASHINGTON, DC - DECEMBER 18: Former White House National Security Advisor Michael Flynn and his wife Lori Andrade leave the Prettyman Federal Courthouse following a sentencing hearing in U.S. District Court December 18, 2018 in Washington, DC. Flynn's lawyers accepted the judge's offer to delay sentencing for lying to the FBI about his communication with former Russian Ambassador Sergey Kislyak. Special Prosecutor Robert Mueller has recommended no prison time for Flynn due to his cooperation with the investigation into Russian interference in the 2016 presidential election.

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.

“Flynn’s guilt has already been adjudicated,” said John Gleeson, a retired federal judge now in private practice. Sullivan appointed Gleeson to argue in favor of keeping Flynn’s case alive. “So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing.”

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]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.