The District of Columbia appeals court picked the strongest option to react to a district court judge who has for weeks refused to grant the Justice Department’s motion to dismiss the case against former Trump adviser Lt. Gen. Michael Flynn.
The court ordered the judge on May 21 to respond within 10 days—a particularly rare move, according to several lawyers who’ve commented on the matter.
The court “chose the most extreme, rare, and drastic” of the options it had available, said appellate attorney John Reeves, former assistant Missouri attorney general, in a May 21 series of tweets.
“This is extraordinary,” commented Leslie McAdoo Gordon, an attorney specializing in security and disciplinary cases. In her practice, she’s never seen an appeals court directly order a judge to respond, she said in a May 21 tweet.
Flynn, a former head of the Defense Intelligence Agency and former national security adviser to President Donald Trump, pleaded guilty in 2017 to one count of lying during an FBI interview. In January, the retired Army three-star general disavowed the plea and asked the court to allow him to withdraw it.
The Department of Justice (DOJ) moved to drop Flynn’s case on May 7, saying the FBI interview wasn’t based on a properly predicated investigation and “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.”
The district judge handling his case, Emmet Sullivan, has so far refused to affirm the dismissal and has instead laid out a schedule that would prolong the case for possibly months to come. He’s appointed former federal Judge John Gleeson as an amicus curiae (Friend of Court) “to present arguments in opposition to the government’s Motion to Dismiss,” as well as to “address” whether the court should make the defense explain why “Flynn should not be held in criminal contempt for perjury.”
He’s also signaled he may allow more amici to join the case.
Flynn’s lawyers, led by former Texas prosecutor Sidney Powell, filed on May 19 a petition for a writ of mandamus—a request to the higher court to order Sullivan to accept the case dismissal, cancel the Gleeson appointment, and assign the case to another judge.
The appeals court’s reaction “shows it is deeply troubled by Judge Sullivan’s actions,” Reeves said.
He explained that most writ petitions are denied right away. The fact that the court wants a response “shows it is concerned and wants to hear more about the matter,” he said.
In such situations, the Appeals Court has three options. The first and most common one is to appoint an amicus curiae who would present an argument on behalf of the judge. The second option is to “invite” the judge to address the petition personally.
The most serious option is to order the judge to respond.
That means that the judge (and his clerks) will have to personally “submit written briefing trying to legally justify his refusal to dismiss the Flynn case,” Reeves said.
Moreover, the order included a reference to a 2016 case where the court ruled that a judge has only a “narrow” role when prosecutors send him a motion to dismiss a case.
“Decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion,” the ruling stated.
“That’s not subtle,” commented McAdoo Gordon. “It means: ‘What are you doing in light of this case?’”
The case is being handled at the appeals court by a three-judge panel of Karen Henderson, a G. W. Bush appointee; Robert Wilkins, an Obama appointee; and Neomi Rao, a Trump appointee. There was no dissent on the order.
Sullivan’s reference to contempt for perjury likely refers to Flynn’s reiterating his guilty plea before the judge in 2018. Flynn said he only did so because his lawyers urged him to and because he was coerced into making the plea by the prosecutors’ threat to charge his son.
The plea is legally irrelevant to the case dismissal, according to Powell, because the DOJ based its decision on a lack of materiality, meaning impactfulness of what Flynn said to a legitimate FBI investigation.
It was the government’s job—not Flynn’s—to vouch for materiality, so his plea has no bearing on it, she affirmed.
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