Jul 7, 2020
A week ago Monday former federal appellate judge Michael Luttig took to The New York Times to attack the D.C. Circuit’s handling of the General Michael Flynn case. In an at times misleading and oddly vituperative op-ed, Mr. Luttig accuses the U.S. Court of Appeals for the District of Columbia Circuit of not having “understood its own case” and of “bungl[ing] perhaps the most consequential political constitutional case in recent memory.” Serious charges from a respected sometime jurist would raise concerns if they were true; fortunately, a closer examination reveals that they are not.
Judge Neomi Rao’s well-crafted and carefully reasoned opinion for the court, which veteran Judge Karen Henderson joined in full, covers the legal ground quite capably. But it is worth debunking some of the external criticism targeting the Flynn panel majority’s mandamus ruling, if only to counteract any misimpression that something untoward happened in this important—albeit unduly politicized—appeal.
Mr. Luttig’s piece gives a breezy description of how federal district court judge Emmet Sullivan responded to the government’s Rule 48(a) motion to dismiss the charges against General Flynn. He writes: “Judge Sullivan scheduled a hearing to determine whether to give that approval. Mr. Flynn, in turn, asked the higher court, the Court of Appeals, to dismiss his prosecution now, before Judge Sullivan decides whether to dismiss it.” Reading that abbreviated account, which skips much controversial context, could leave an observer wondering what all the hubbub is about.
Luttig does not just bury the lede, he practically buries the whole story. He omits how far out in the future the hearing was scheduled. He never mentions Judge Sullivan’s appointment of an amicus to “present arguments in opposition to the government’s Motion to Dismiss.” Nor that this amicus, retired federal district judge John Gleeson, had just published a Washington Post op-ed calling for harsher treatment of Flynn. Nor does Luttig note Sullivan’s highly unusual invitation for other amici to weigh in on charges in a criminal case. Nor that Sullivan had turned away some two dozen requests earlier in the proceedings for amicus briefs in Flynn’s favor. He also neglects to point out that Sullivan asked his appointed amicus to assess whether Gen. Flynn perjured himself (either in pleading guilty or in seeking to withdraw his guilty plea). Finally, he fails to describe Mr. Gleeson’s apparent intention to investigate conduct by the Department of Justice (DOJ) outside the record.
Instead of providing this background, Luttig sets up Gen. Flynn’s mandamus request as a radical reaction to a run-of-the-mill hearing. But Judge Sullivan’s was no ordinary judicial response to the government’s Rule 48(a) motion to dismiss. The whole reason Flynn’s counsel, Sidney Powell, sought mandamus is that she did not believe the rule’s “leave of court” proviso permitted the judge’s ambitious amicus gambit. So, omitting those maneuvers leaves readers in the dark. Even if Mr. Luttig does not think Sullivan (or Gleeson) did anything wrong on the amicus front, his readers cannot fairly assess his indictment of the Flynn panel without these key facts and this procedural history.
A second glaring absence from Mr. Luttig’s piece is discussion of case law. Presumably he agrees that judges must follow binding precedent. Given the D.C. Circuit’s U.S. v. Fokker Servs.case, no crystal ball was needed for this author to foretell back on May 14 in this space that Gen. Flynn might well seek mandamus or that granting it would be appropriate. “Few subjects are less adapted to judicial review,” Fokker explained, “than the exercise by the Executive of his discretion in deciding when and whether … to dismiss a proceeding once brought.” Fokker’s logic excluded any other outcome here, so the court’s appropriately heavy reliance on it to decide the Rule 48(a) question was reassuringly predictable.
Rather than take issue with the panel’s treatment of Fokker (or take on Fokker’s own handling of precedent), Mr. Luttig erects his argument on a weak falsework. No fewer than three times he states versions of the notion that “it was not the government that asked the appeals court to dismiss Mr. Flynn’s prosecution.” But this premise is simply wrong. While only Gen. Flynn filed a formal mandamus petition, the Solicitor General backed that petition, filed a strong brief in support, and used the lion’s share of time at oral argument to bolster the case for mandamus.
On page one of the Solicitor General’s brief, he states, “This Court should issue a writ of mandamus compelling dismissal.” At argument, Principal Deputy S.G. Jeff Wall said, “[W]e are asking that the district court be directed to grant the Rule 48 motion.” DOJ did not file its own mandamus petition, but Wall left no doubt about the government’s position. Like Flynn’s counsel, DOJ told the appellate panel it ought to direct Judge Sullivan to grant the Rule 48 motion. If one reads the S.G.’s brief and listens to oral argument, the point is indisputable. The government asked the D.C. Circuit to dismiss Gen. Flynn’s prosecution, and it did so repeatedly. Any contrary suggestion is misleading.
Finally, in a strange twist, Mr. Luttig concedes that “the court reached the result that almost certainly will be required by law after any hearing that the full court could constitutionally authorize Judge Sullivan to conduct.” Add, he adds, “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 … a decision to deny his leave[.]” In other words, Luttig apparently agrees the panel reached the right result but thinks it did so prematurely or for the wrong set of reasons.
Yet mandamus is precisely the tool the law supplies Gen. Flynn—and DOJ—to prevent Judge Sullivan from launching an investigation outside the record. Had he simply held a hearing and interrogated DOJ there about any ulterior motives he suspected, mandamus would not have been sought nor such relief given. If the law compels Flynn’s prosecution to be dismissed eventually, as Mr. Luttig argues, it is difficult to understand what good could have come from allowing Sullivan’s questionable hearing to proceed.
While the trial court’s actions in response to the Rule 48(a) motion were unprecedented, the D.C. Circuit’s were not. As in Fokker, the In re: Michael T. Flynn panel majority recognized that there is an exceedingly minimal role for a district court to play in entertaining a prosecutor’s motion to dismiss criminal charges. It does not appear that Judge Sullivan will appeal this mandamus decision, and it would be even more unusual for the D.C. Circuit sua sponte to call for rehearing en banc.
Whatever Mr. Luttig’s ultimate intent, his misleading piece feeds a narrative of politicized judges ignoring law. Yet, far from bungling the case, the D.C. Circuit reached the result the rule of law compelled here. Even if the entire court of appeals were to rehear the case, it would be to loosen the binding force of now-Chief Judge Srinivasan’s unanimous ruling in Fokker, not to error-correct the panel majority’s proper application of that precedent. But now that the appeals court has directed Judge Sullivan to dismiss the Flynn case, and vacated his appointment of amicus as moot, a rehearing en banc would just cause needless delay for no better result.