The latest chapter in the saga of former National Security Advisor Michael Flynn — a perfect serial novel for the times — has just opened, leaving Flynn in criminal jeopardy despite the lack of prosecuting authority. On Aug. 31, the D.C. Circuit Court of Appeals killed its previous order to Flynn’s trial judge, Emmet Sullivan, to dismiss the charges against him. So now Sullivan is allowed to continue his maverick orders and rulings, and Flynn bides his time.
When we last left the case, Sullivan’s lawyers argued an appeal before the D.C. Circuit Court of Appeals, sitting en banc. A three-judge panel had dismissed the charges against Flynn, and Sullivan appealed that order. Litigants who dislike an appeals court ruling can apply to that court for re-hearing before the full court, and that is what Sullivan did. So the new ruling is the result of Sullivan’s appeal.
As Chief Justice of the United States John Roberts said in 2018: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” The three-judge panel that first heard the case consisted of two Republican appointees and one Democrat. In a 2-1 ruling, they said that Sullivan was required to issue a dismissal in the criminal case against Flynn that he presided over. A writ of mandamus directed Sullivan to dismiss the charges, as a matter of law, and the ruling tracked by and large with party affiliation. To that point and addressing the matter directly, Judge Thomas Griffith, a George W. Bush appointee to the court, spoke eloquently:
“In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt, there will be some who will describe the court’s decision today in such terms, but they would be mistaken.
“This proceeding was not about the merits of the prosecution of Flynn or the government’s decision to abandon that prosecution. Rather, it involved questions about the structure of the Judiciary and its relationship to the Executive Branch. There are two central problems in this case: defining the scope of the authority of the Judiciary to inquire into the exercise of a core function of the Executive and deciding how the relationship between the district court and our court shapes a challenge to that inquiry. Those questions are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree.”
Sullivan May Be Wrong, But So Is Mandamus
The full court ruled that the relief granted previously — the mandamus writ — was too drastic for the case as it currently sits. The judges chose to address the case as less a separation-of-powers issue and more about when it’s appropriate to issue a writ of mandamus. The majority ruling said: “General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time.”
As a rule, appeals courts try to find their way out of making a big ruling on a major issue if they can instead address the case through a procedural ruling. Judge Neomi Rao, a Trump appointee, and Judge Karen Henderson, another W. appointee, both wrote in dissent and would have granted Flynn relief now and through a mandamus order.
Given the times and the stakes, it’s hard not to see the case as a partisan battle. Perhaps we should try to heed Griffith’s words and be more circumspect than outraged. For sure, the great injustice against Flynn did not occur at the 10th Circuit this week, but in the White House in the waning days of the Obama administration. For now, the ball is back in Sullivan’s court, where he can exit graciously or further test the bounds of judicial independence and the power of the Judiciary. Sullivan was appointed to the court by Bill Clinton.
Read more from Scott D. Cosenza.