The next big question in the legal drama of General Michael Flynn is whether the full United States Circuit Court of Appeals in Washington will step in to review the decision of its colleagues on the panel that just ordered a district court to end the case against the general. It would be an unusual — and highly political — move. Then again, too, for close to a decade now, the District of Columbia circuit has been at the center of a political struggle that has yet to be resolved.
In today’s action, a three-judge panel ordered the district court judge to dismiss the criminal case against General Flynn. Dismissal, the panel ruled, is required by the Constitution and the D.C. circuit’s own precedents. That’s because new evidence led the Justice Department to conclude that General Flynn’s guilty pleas were to crimes that the United States could no longer prove. The general himself moved to withdraw his pleas. So both are on the same side, leaving no case.
When they asked the district court to drop the charges, though, the court balked. It moved to set in train a whole new series of hearings. It appointed an outside “amicus” to — in effect — replace the federal government as the prosecutor. The amicus, John Gleeson, a retired federal judge from New York, had written in the Washington Post that the Justice Department’s motion to drop the record in the case “reeks” of “improper political influence.”
That the district court might not grant what constitutionally should be an automatic dismissal prompted General Flynn, with the federal government right behind him, to ask the circuit to order a dismissal. The district judge, Emmet Sullivan, filed a brief opposing such an order. The three judge panel, though, moved swiftly today, in a two-to-one vote, to order the district judge to end the case. Judge Robert Wilkins dissented. Judge Karen Henderson joined an opinion by Judge Neomi Rao.
Judge Rao penned a short, crystalline opinion crediting the separated nature of the executive and judicial powers. “The district court,” Judge Rao wrote, “has no mechanism by which it can maintain a prosecution in the absence of the Executive Branch moving forward.” Judges Rao and Henderson, were particularly pointed in repelling the attempt by Judge Sullivan and Amicus Gleeson to pierce the presumption of regularity that the courts normally accord decisions of prosecutors.
In other words, absent evidence, they rejected the attempt to impugn the Justice Department’s integrity. And they’re not going to let the district court launch a fishing expedition for evidence on the basis of the amicus’ olfactory sense that the Justice Department’s record in the case “reeks” of political interference. They did not question Judge Sullivan’s good faith, though, and turned aside General Flynn’s motion that Judge Sullivan be removed from the case.
This is a moment of truth for the District of Columbia Circuit, whose own precedent (in a case known as Fokker) Judges Rao and Henderson cited today. It’s been seven years since the Wall Street Journal launched a series of editorials, warning that the Democrats were going to try “packing the D.C. circuit.” Packing connotes hiring judges who aren’t needed but for ideology. The Journal sprang on the issue after Senator Schumer declared of the Democrats: “We have to fill the D.C. Circuit.”
Mr. Schumer had been upset by a number of then-recent rulings from the D.C. circuit, which he claimed — ludicrously — was
“dominated by the hard right.” There was no need for more judges on the circuit. Within a year, though, the Obama administration proceeded to land three new Democrats on the bench. Even with three appointments by Mr. Trump (including one last week) the circuit’s Democratic judges outnumber its Republicans seven to four.
The Journal warned back in 2013 that the Democrats appeared to be maneuvering to be able to use en banc hearings to overturn rulings they don't like. So here we are. It’s not our intent to question the integrity of any of these judges. It is rather but to mark the fact that the world is watching whether the circuit will abide by its own precedent, by the doctrine of separated powers, and by the constitutional confinement of the judicial power to actual cases and controversies. General Flynn and his prosecutors agree that the case against him should be ended, and it’s time for the courts to accept that fact.
Correction: Four is the number for Republican active judges on the circuit. Judge Walker, confirmed last week, will fill the seat of Judge Griffith, who is retiring. The District of Columbia Circuit also has six senior judges, who normally don’t participate in en banc proceedings unless they’d participated in the panel the bench is reviewing. Two-to-one was the vote in the panel today. These numbers were given incorrectly in the bulldog.