In the case of General Michael Flynn, who plead guilty, twice, to lying to FBI agents before changing attorneys and then changing his plea, which [breath] was followed by Attorney General Barr deciding to withdraw the entire prosecution, precipitating Judge Emmet Sullivan into putting that matter on hold in order to collect opinions and hold a hearing on whether to accept that move, [breath again] resulting in Flynn and the DoJ appealing to the next level up in the federal judiciary, it turns out a panel of the DC Court of Appeals doesn’t think that’s important, uh, “that” being the lying:
U.S. District Judge Emmet G. Sullivan cannot scrutinize the Justice Department’s decision to drop its long-running prosecution of President Trump’s former national security adviser Michael Flynn and must dismiss the case, a federal appeals court ruled Wednesday.
In a 2-1 decision, the court said it is not within the judge’s power to prolong the prosecution or examine the government’s motives for its reversal in the politically charged case. Flynn twice pleaded guilty to lying to federal agents about his pre-inauguration contacts with Russia’s ambassador before the Justice Department moved in May to dismiss the charges.
“This is not the unusual case where a more searching inquiry is justified,” wrote Judge Neomi Rao, a recent nominee of the president. [WaPo]
I’m disregarding Judge Rao’s astounding remark, as it appears to me that the judge and her one colleague have disregarded a core element of conservative judicial reading of the law: the clear meaning of the text. Fox News helpfully supplies the relevant section:
Rule 48(a) of the Federal Rules of Criminal Procedure states that prosecutors “may, with leave of court, dismiss an indictment, information, or complaint.” Retired Judge John Gleeson, chosen by Sullivan to file an amicus curiae brief, claimed in a May Washington Post op-ed he co-authored that this means a motion to dismiss “is actually just a request.” As a judge in 2013, however, he wrote that courts are “generally required to grant a prosecutor’s Rule 48(a) motion unless dismissal is ‘clearly contrary to manifest public interest.’”
Here’s a link to the Federal site reciting the rule; I do not know if this is authoritative, but it’ll do.
While with leave of court may be a trifle old-fashioned, its meaning is clear: if a prosecutor wishes to drop a prosecution already decided, they must get the permission of the court. There are no caveats, exceptions, or By Direction of the President. Period.
In my non-lawyer view of the rule in question, it seems abundantly clear that Judge Rao and her colleague are completely out to lunch; I hope Judge Sullivan appeals for an en banc hearing by the DC Court of Appeals, which I believe is the next step; this entails all judges of the Court hearing the case, rather than just the three person panel.
And, really, the two judges above, who are both Republican appointees, should be asked by someone in The Federalist Society why they’ve abandoned their core judicial principles. If no member does, it’ll unmask that group as just another pack of partisan power-mongers.
