If the President goes ahead and pardons General Michael Flynn — as the Wall Street Journal, in an editorial scoop, is suggesting this morning — would the United States District Court for the District of Columbia accept it? Or would Judge Emmet Sullivan proceed to try to sentence and even jail the general, despite the pardon? Those will sound like fantastic questions only if one hasn’t been following this astounding case.
That’s because the showdown over General Flynn has become a fight over what in law is called the “presumption of regularity.” It is a deference that is supposed to be accorded to government agencies. This principle has been given in Latin as omnia presumuntur rite et solemnitur esse acta, donec probetur in contrarium — or, as Google translates it, all things are presumed to be duly and solemnly done, until the contrary is proved.
That the “presumption of regularity” has been withheld in the Flynn case is, at least to us, a shocking development. The first blood in this fight was drawn by Judge Sullivan, who recoiled at the motion by America to drop the case against the general, despite his guilty plea. The Justice Department did so after discovering new evidence that cast doubt on its own agents and officers. Which should have been the end of it.
That is, once the general and his accuser were in agreement on dismissing the case, that should have been the end of it. Judge Sullivan, though, refused to grant the Trump Justice Department the presumption that it was operating in good faith. Instead, bent on a new investigation, he named to represent what he thought should be the government’s point of view an amicus lawyer. He chose one who’d already suggested the case reeked of political influence.
That means that the presumption of regularity was abandoned. The principle of separated powers was also breached, with the court playing prosecutor. Yet, it seems, both sides can withhold the presumption of regularity. So General Flynn, with the government swinging behind him, filed in the appeals court a petition for a writ of mandamus. It asked the appeals court to order the district judge to dismiss the case.
The appeals court, citing its own and Supreme Court precedents, promptly did so. The district judge, though, refused to obey the order. Instead, it filed a petition with the full circuit bench, which was packed with Democrats during the Obama administration. That move appears to be an effort to run out the clock in the hopes that the election will hand up a Democratic administration prepared to resume prosecuting General Flynn.
In other words, we have a bonfire of regularity. The Journal reckons — and we’re not here to gainsay the point — that the best bet for justice is now the pardon. President Trump could say that he’s granting the pardon because he doesn’t think the district court deserves the presumption of regularity. Even if he didn’t say it in so many words, that would be the gist of it.
If the district judge refused to bow to a pardon, could he get away with it? Ordinarily, we’d say no. The pardon power, after all, is the least fettered of any power granted to the president. The president doesn’t have to consult the Justice Department or the courts. He could, we once suggested, just write a pardon out on a napkin. So if the district court balked, surely the higher courts would step in and restore a presumption of regularity. Wouldn’t they?