There is plenty of confusion around the federal appeals court decision last week that ordered Judge Emmett Sullivan to dismiss the case against Michael Flynn, the former national security adviser accused of lying to the F.B.I.
How could anyone understand the decision given how politicized the case has become? Not even the U.S. Court of Appeals for the District of Columbia Circuit appears to have understood its own case.
The case is important — involving the separation of powers between the executive and the judiciary — and involves a few twists and turns. It started when the government, in a highly controversial move, asked Judge Sullivan for his approval — or his “leave” — to dismiss Mr. Flynn’s prosecution, a requirement under federal rules. 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 the case.
In considering Mr. Flynn’s request, the appeals court had before it three simple questions: Does Mr. Flynn have a clear and indisputable right to have his case dismissed — before Judge Sullivan rules? Does he have any other remedy for the harm he may suffer if the case is not dismissed immediately? And last, is ending Mr. Flynn’s prosecution now, before Judge Sullivan rules, “appropriate under the circumstances”?
As it turns out, the Court of Appeals panel decided none of these three questions.
Take the first question. Though it purports to have done so, the court did not decide that Mr. Flynn had a clear and indisputable right to immediate dismissal. Rather, the divided court decided the entirely different question of whether the government would have had a clear and indisputable right to have its prosecution dismissed immediately. “The circumstances of this case demonstrate,” Judge Neomi Rao wrote, that immediate dismissal “is appropriate to prevent the judicial usurpation of executive power.” However, it was not the government that asked the appeals court to dismiss Mr. Flynn’s prosecution before Judge Sullivan ruled. It was Mr. Flynn.
The divided Court of Appeals also purported to, but did not, decide whether Mr. Flynn would suffer irreparable harm by having to wait for Judge Sullivan’s ruling — harm for which there is no other remedy, such as vindication on appeal. Again, the Court of Appeals decided only that the government would suffer irreparable harm that could be avoided only by the immediate dismissal of its case. Judge Sullivan’s decision to hold a hearing “will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power that cannot be remedied on appeal,” Judge Rao wrote.
Finally, the court turned to the third question of whether the immediate dismissal requested by Mr. Flynn “is appropriate under the circumstances.” Once again, the court decided instead that immediate dismissal was appropriate under the circumstances for the government — as if the government had asked for immediate dismissal of its prosecution, which it had not. “Because there is no adequate remedy for the intrusion on ‘the Executive’s long-settled primacy over charging decisions,’” it ordered the district court to grant “the government’s” motion to dismiss the charges against Mr. Flynn.
In short, the court mistakenly believed that if the government is entitled to dismissal of its prosecution against Mr. Flynn now (which it is not, by the way), then Mr. Flynn is entitled to dismissal of his prosecution by the government now, too. But that is just not true, because the government’s rights and interests in immediate dismissal are vastly different from and greater than Mr. Flynn’s, which are lesser by far. And it is Mr. Flynn, not the government, who sought dismissal before Judge Sullivan can rule.
Knowingly or not, the Court of Appeals simply appears to have bungled perhaps the most consequential political constitutional case in recent memory.
Every day, courts err and often even grievously. That said, the question now is whether the entire Court of Appeals will or should rehear this significant constitutional case.
There are sound reasons for rehearing the case and for not. The choice for the full court is an exceedingly difficult one. Were the court to decide to rehear this case, its decision would unavoidably be perceived by many as the court’s positioning itself to rule for the losing side in last week’s case, evening the political score in this pitched partisan battle. This would only further politicize the already politicized case and the federal judiciary along with it. Prolonging what would then be a three-ring judicial circus would exact an almost unconscionable price from the integrity of the judicial process.
Were the full court to decide not to rehear the case, the errant edict of the three-judge panel would quickly be corrected in succeeding cases. Because the panel actually did not decide the important questions that it should have decided, its opinion will never be regarded as precedent.
On the other hand, while the opinion of the three-judge panel is grievously wrong, and as premature and ill reasoned as its decision was, 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. The government’s facially and unrebutted reasons for wanting to dismiss the prosecution — namely that the government itself wrongly investigated and prosecuted Mr. Flynn in the first place and then withheld exculpatory evidence from him in the second place — are constitutionally compelling. Accordingly, 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 at the end of the day a decision to deny his leave for the government to dismiss its prosecution of Flynn.
This is high legal drama in the federal court and high political drama around the country. And the partisans have all but succeeded in expropriating this case of law into service for their respective impassioned political agendas. Fortunately for our country, this case will not be decided by partisanship. It will not be decided by the rule of politics. It will be decided by the rule of law.
J. Michael Luttig served as a judge on the U.S. Court of Appeals for the Fourth Circuit from 1992 to 2006.
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