The D.C. Circuit Court of Appeals said in a 2-1 ruling on Wednesday that the federal judge overseeing the sentencing of former national security adviser Michael Flynn must accept the Justice Department’s request to drop charges.
Why it matters: It could mark the end of a long-running legal fight that began with Flynn pleading guilty to lying to the FBI in December 2017 about his contacts with the Russian ambassador during the Trump administration’s transition into office.
The backdrop: The Justice Department under Attorney General Bill Barr moved to dismiss the charges against Flynn in May, following a review that alleged prosecutorial misconduct by the FBI agents who had interviewed Flynn.
D.C. District Judge Emmet Sullivan pumped the brakes on the case and sought to hear from outside parties on whether he should accept the government’s motion.
Flynn’s lawyers subsequently asked the D.C. Circuit Court of Appeals to order Judge Sullivan to drop the case.
In the meantime, an ex-judge appointed by Sullivan to review the case issued a scathing brief alleging that Flynn committed perjury and accusing the DOJ of a “corrupt, politically motivated” dismissal.
Worth noting: The majority opinion was written by Circuit Judge Neomi Rao, who was appointed in November 2018 to fill the seat vacated by Supreme Court Justice Brett Kavanaugh.
What’s next: Sullivan could ask the full D.C. Court of Appeals to vote whether to rehear the panel decision.
What they’re saying:
Because legal errors ordinarily may be corrected on appeal, a writ of mandamus is proper only if there is “no other adequate means to attain … relief.” Although “an abstract concern with the separation of powers,” does not rise to the level of an irreparable injury, we have found the requisite harm as a matter of course when a party alleges the district court’s action usurps a specific executive power.
In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.