On Wednesday, in a 2–1 decision, Judge Neomi Rao forced a district court to dismiss the prosecution of Michael Flynn. Rao’s opinion is an exercise in outcome-driven sophistry that barely pretends to be a judicial opinion. While gutting a vital check of executive misconduct, Rao whitewashed the Justice Department’s flagrantly political decision to drop charges against Flynn—hours before the House Judiciary Committee heard whistleblowers testify about political interference at the DOJ, including in Flynn’s case. Rao accused the district court of “unprecedented intrusions on individual liberty” simply because it dared to “prob[e] the government’s motives” for meddling in the prosecution of the president’s ally.
Wednesday’s decision by the U.S. Court of Appeals for the District of Columbia Circuit will almost certainly be appealed to the full court and possibly the Supreme Court after that. If upheld, Rao’s ruling will set a terrible legal precedent. But equally devastating are its broader, long-term implications for judicial independence.
The facts of the case are by now well known. Shortly before Trump took office, Flynn communicated with Russian Ambassador Sergey Kislyak, asking him to ensure that Russia did not respond too harshly to the Obama administration’s sanctions. After becoming Trump’s national security adviser, Flynn then lied to FBI agents about this conversation. In December 2017, Flynn entered a plea bargain with special counsel Robert Mueller, pleading guilty to “willfully and knowingly” lying to federal law enforcement. After Mueller ended his investigation, Flynn withdrew his guilty plea and Attorney General William Barr began reviewing the case. During this period, Trump repeatedly demanded that the DOJ drop charges against Flynn. Then, in May 2019, Barr’s ally, U.S. Attorney Timothy Shea, sided with Flynn, urging the court to dismiss all charges. Former lead prosecutor Brandon L. Van Grack abruptly withdrew from the case, and not a single career prosecutor who had worked on the case for the past 2½ years signed Shea’s motion.
There is ample evidence that Barr and Shea got Flynn off the hook at Trump’s behest. This political meddling in a federal prosecution is wildly unethical and extremely disturbing. Luckily, there is a federal rule, 48(a), designed to prevent well-connected defendants from pulling strings in Washington to get their cases dismissed. Under Rule 48(a), the government requires “leave of court” to dismiss a criminal case. Thus, U.S. District Court Judge Emmet Sullivan, the Bill Clinton appointee overseeing the case, asked former federal Judge John Gleeson to address Shea’s motion under the rule and explain whether Flynn committed perjury when entering his guilty plea. Sullivan then ordered briefing and scheduled a hearing on the matter, with the help of Gleeson as amicus.
It’s important to remember that Sullivan has not yet ruled on the Justice Department’s motion to dismiss. He merely appointed independent counsel to help flesh out his responsibilities under Rule 48(a). Moreover, Sullivan is not seeking to convict Flynn against the DOJ’s wishes; because he entered a guilty plea, Flynn has already been convicted. Sullivan’s only remaining task is to hand down a sentence. He appointed Gleeson as amicus to decide whether he should proceed with sentencing or grant “leave of court” and dismiss the case.
According to Rao, however, these modest actions were not just inappropriate—they were plainly illegal. (Rao was joined by Judge Karen L. Henderson, a George H.W. Bush appointee.) To the majority, Sullivan’s actions were so outrageous they justified an exceedingly rare “writ of mandamus,” which let Flynn skip right over the normal course of appeals. Rao made three arguments to justify this extraordinary action, and none of them can be taken seriously.
First, Rao more or less repealed Rule 48(a). Ignoring its history and purpose, Rao insisted judges may only refuse to grant “leave of court” in cases involving prosecutorial harassment. This claim is false: The Supreme Court itself has recognized that courts have also refused to grant “leave of court” if it is “clearly contrary” to the “public interest.” Second, Rao wrote that the government deserves “the presumption of regularity” because “there is no clear evidence” that it acted unethically. (There is, of course, a mountain of evidence to the contrary, but Rao dismisses these “news stories, tweets, and other facts outside the record” entirely.) Third, Rao declared that Sullivan is not allowed to scrutinize the government’s conduct or force prosecutors to explain their decision in open court. Why? Because doing so would “result in specific harms” to the executive branch, she wrote, compelling it “to reveal the internal deliberative process” in violation of the constitutional separation of powers.
These three arguments are rooted not in binding precedent, but in Rao’s own improvised sense that federal prosecutors are unaccountable to anyone but the president. As University of North Carolina criminal law professor Carissa Byrne Hessick has noted, this principle is utterly inconsistent with democratic accountability. “In order for elections to serve as a remotely effective check on prosecutors,” Hessick explained, “voters need information about the decisions that prosecutors make.” Yet Rao just enshrined into law a new edict that allows federal prosecutors to conceal their entire deliberative process from federal courts—and, by extension, the public.
In dissent, Judge Robert L. Wilkins, a Barack Obama appointee, shredded each of Rao’s fictions with righteous indignation. Wilkins appears to be shocked that Rao would reach this “trailblazing result” by contorting or ignoring precedent. “This is a case,” he reminded the majority, “about whether a district judge may even hold a hearing on a Rule 48(a) motion.” There is no precedent to support Rao’s pronouncement that merely holding a hearing infringes on the president’s Article II powers. Furthermore, Sullivan had asked Gleeson to advise him on Flynn’s alleged perjury before the court. Federal judges have “inherent authority” to hold perjurers in contempt. Yet Rao prohibited Sullivan from considering whether to hold Flynn in contempt. It is as if Rao began with the conclusion that Flynn must be let off the hook entirely then worked her way backward to find flimsy, novel reasons why.
Rao has run interference for the president before to shield him from meaningful oversight. She routinely acts like Trump’s personal protector rather than an impartial judge, fabricating avant-garde legal theories out of whole cloth that happen to favor the executive every time. But her Wednesday decision crosses the line into new territory. The full D.C. Circuit, sitting en banc, can and should reverse her opinion, which presents a shockingly expansive theory of executive power that overrides the federal judiciary’s ability to identify and stamp out prosecutorial corruption. Under Rao’s rule, federal judges must look the other way when politicians interfere in prosecutions to help their friends—a gross perversion of justice that plainly occurred here. Instead, federal judges must adopt a “see no evil” approach, rubber-stamping prosecutors’ rationalizations even when they reek of corruption. With this opinion, Rao has made herself and her court complicit in that corruption.
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