The 8: 2 decision of a federal appeals court in In re: Michael T. FlynnThe report handed down on Monday confirms – on the objection of two right-wing judges – that the ordinary rules that apply to any other litigation also apply to President Trump’s former national security advisor. Michael Flynn, a former general who briefly served as Trump’s top national security aide, cannot drop a criminal complaint against him until his case is tried by a federal judge.
It is hardly a world-shattering legal event. However, the decision matters as it dissolves a deeply radical view of one of President Trump̵
It remains likely that Flynn will escape federal charges he lied to the FBI. And it is likely that he will, despite once pleading guilty.
But Flynn, at least, won’t get any particular exception to the rules of appeal.
Flynn tried to bypass the trial judge, who heard his case
The facts underlying Flynn’s case are unusual to say the least. In 2017, Flynn pleaded guilty to lying to the FBI about his contacts with Russian Ambassador Sergey Kislyak. However, almost three years later, the Trump Justice Department decided to drop the charges against the former Trump aide. Although the DOJ admits that Flynn lied to investigators, the Justice Department now claims that those lies “may have” influenced “an investigation that was neither legitimate nor counter-espionage or criminal purpose.
It is highly unusual for prosecutors to drop charges years after receiving a pledge of guilt. And the federal penal ordinance only allows the government to refuse prosecution “with the permission of the court”. As a result, Judge Emmet Sullivan, the trial judge on the case, decided to hold a hearing to discuss how to proceed – and to see whether Flynn should be despised for perjury, an indictment the court can pursue without the DOJ’s approval .
In addition, Sullivan asked a court-appointed attorney to argue the case against Flynn. This is a common practice when parties appearing in court have made important arguments to support the gist of that case.
Judge Sullivan has not yet held his hearing. And he didn’t make a decision at all about dismissing Flynn’s charges. It is possible – probably even as judges postpone ordinary judges for prosecutors trying to dismiss a case – that Sullivan will allow the original charges against Flynn to be dropped. Should Sullivan decide against Flynn, Flynn will always have the option to appeal that decision to the US District of Columbia Circuit Court of Appeals – the same court that ruled against him on Monday.
However, Flynn felt that he should not follow the normal procedure that governs almost every case heard in a federal district court. Typically, the trial judge hears a case, decides first, and then the case can be heard by an appeals court after this the rules of the trial judge. Instead, Flynn looked for a so-called “mandamus deed,” a seldom issued court order that sometimes allows an appeals court to intervene against the will of a trial judge.
In either case, the outcome of the DC Circuit’s decision is in Flynn is that Flynn must follow the same rules of procedure as everyone else. A 1967 Supreme Court opinion stated that “a motion to issue a mandamus may never be used as a substitute for an appeal.”
Rather, Mandamus relief is only available if “the party requests that the letter be issued [has] no other adequate means of obtaining the relief he desires. “Because Flynn has another means – he can discuss his case in front of Judge Sullivan and then appeal Sullivan’s decision if he doesn’t like it – Mandamus relief is inadequate.
The case only made it this far because of two runaways
The DC circuits Flynn The judgment is a fairly rudimentary application of longstanding law. So rudimentary, in fact, that it’s surprising that the entire DC circuit had to take this case into account at all.
The vast majority of cases in federal appeals courts are tried by three-person panels whose members are randomly selected from among the court’s judges. In this case, Flynn had a brief happy hiatus as his jury consisted of two extremely conservative judges: Judge Karen Henderson, a George HW Bush-appointed judge who was sometimes right to stand by Judge Brett Kavanaugh when the two were on the DC together Circuit served; and Judge Neomi Rao, a recently Trump-appointed person who has authored several dubious decisions in favor of Trump or the Trump administration.
After Henderson and Rao decided to give Flynn Mandamus relief, the entire court stepped up to override that decision. Indeed, the Henderson and Rao decision seems to have troubled the entire DC circuit so much that they invoked an extraordinarily rare process.
According to a 2011 analysis in which cases were examined by en banc, less than 0.3 percent of all cases by federal appeals courts are tried “en banc,” the legal term for a full court hearing. In addition, most of these cases go en banc because the party that lost the case before a three-judge panel asked the court to reconsider the case.
But in FlynnThe court announced that it had decided to hear the case en banc “at the suggestion of a member of the court”. The colleagues from Henderson and Rao seem to have decided without being asked that the decision of the two judges could not stand.
That means Rao drafted a dissenting opinion on Monday in which she would do her best to defend her original decision in favor of Flynn. The core of their argument is that Flynn is entitled to special treatment because failure to divide Mandamus relief would disrupt the separation of powers.
“In our system of separate powers,” argues Rao in her contradiction, “the government can only deprive a person of his or her freedom if all three branches act: Congress must pass a law that criminalizes activity;” The executive must determine that prosecution is in the public interest. and the judiciary, regardless of political branch, must rule the case. “
Therefore Flynn has to assert himself because “the public prosecutor no longer has a prosecutor”.
It is possible that Judge Sullivan or maybe even DC Circuit Rao will agree on this point once this case winds its way through the courts. Again the question in Flynn was whether Sullivan can hold a hearing before deciding whether to dismiss the charges against Flynn – not whether those charges can stand on the DOJ’s objections.
But there are also very good reasons to question Rao’s theory of the separation of powers. It is simply wrong that the executive branch is constitutionally required to participate in law enforcement activities. On the contrary, the modern system in which federal law enforcement is usually initiated by officials of the Justice Department’s executive branch is a relatively recent development.
As Fordham law professor Jed Shugerman explained in a 2019 article, the power to initiate law enforcement has not even been confined to the government for much of the nation’s history. Shugerman writes, “For much of English and American history, most law enforcement was not an executive function at all because it was one Private Companies.”
Indeed, law enforcement led by lawyers in private practice was the norm decades after the Constitution was ratified. “The vast majority of American law enforcement agencies were still private in the mid-19th century,” explains Shugerman, “as Allen Steinberg and many other historians have shown.”
The Senate’s draft Justice Act of 1789 gave federal district judges – not the president – the power to appoint federal prosecutors. And the final version of that bill allowed many federal law enforcement officers to be removed by judges. Under current law, federal district judges can appoint US provisional attorneys (but only after an attorney-general nominated temporary agent has been in office for 120 days).
So Rao’s reasoning is anachronistic at best. It ignores much of our nation’s early legal history. And it may even jeopardize many modern law enforcement operations run by court-appointed prosecutors.
Her argumentation found little support from her colleagues. And since the law is very clear that Flynn must follow normal process if he disagrees with Sullivan’s decision, it is unlikely – if not impossible – that the Supreme Court will step in to grant Flynn Mandamus relief.
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