It looks like the stage is set for quite a showdown over separated powers and the fate of General Michael Flynn. It will pit, on the one hand, America and President Trump’s first national security adviser against, on the other hand, a United States district judge, who has balked over a motion by the government to dismiss the criminal charges to which the general once pled guilty. The stakes, though, are bigger than General Flynn alone.
That’s because the district judge, Emmet Sullivan, has signaled he’s considering opening a new legal attack against the general and, through him, the Justice Department itself. He’s suggested he’s prepared to empower various “friend of the court” lawyers, known as amici, to undertake a whole new probe of the Justice Department’s handling of the Flynn case. He’s suggested that the “presumption of regularity” is up for review.
That’s a polite way of saying that Judge Sullivan is prepared to open the question of whether the Justice Department’s decision to drop the charges in the Flynn case was on the up-and-up. The first amicus he tapped, John Gleeson, an ex-United States district judge in New York, was one of the authors of an op-ed piece in the Washington Post suggesting that the decision of America to drop charges against General Flynn “reeks of improper political influence.”
It’s not clear to us, incidentally, that politics has no role in the due process vouchsafed by the Constitution. After all, nearly every prosecutor and top Justice Department official is a political appointee, who must be confirmed by a political body, the Senate. It’s not our purpose, though, to argue that point here. The big question is whether a judge, part of the judicial branch, can launch a whole new investigation of the administration on its own, becoming both prosecutor and judge.
The Justice Department, in no uncertain terms, says no. The Constitution, it argues, “vests in the Executive Branch the power to decide when — and when not — to prosecute potential crimes.” It is insisting that it was exercising that power when it filed to dismiss the charges against General Flynn, who, it had concluded, was railroaded. It’s clearly shocked that Judge Sullivan would “assume the role of prosecutor” and ask an amicus to eye new criminal charges.
Judge Sullivan, whose lawyer has filed with the appeals bench a brief on his behalf, is taking the position that he does not have to “serve as a mere rubber stamp.” There would, his brief suggests, be plenty of time for the appeals court to review the matter after the district is done with its review. Our own estimate — it’s only that — is that Judge Sullivan is trying to run out the clock on what he hopes will be a one-term administration of President Trump.
It has put General Flynn in a vise, to put it mildly. Hence his emergency petition for a writ of mandamus from the appeals court. It would cut through all the politics and get to the fact that there is currently no case and controversy extant in respect of the general. The general and the government agree that he wrongly pled guilty and that the case should be dropped. If the courts could act where there is no case or controversy, they’d be the new King George.
The appeals panel includes three hardheaded judges, Karen Henderson, Robert Wilkins, and Neomi Rao. We wouldn’t hazard a guess as to what they’ll do, even if a key precedent was decided by their own circuit. They could deny the general’s petition and give Judge Sullivan time. Or they could order Judge Sullivan to dismiss the case. Or they could assign the case to a different judge. Or they could — on their own motion — dismiss the case themselves and set the general free once and for all.