Rule of Law

BLOG: Appeals Court Deals Body Blow to Checks and Balances in Flynn Case

“Power must never be trusted without a check,” John Adams once wrote. Last week’s 2-1 ruling by the U.S. Court of Appeals for the D.C. Circuit, ordering a lower court judge to dismiss criminal charges against retired General Michael Flynn—charges to which Flynn has already pleaded guilty—would essentially erase a vital check by the judiciary on the power of the executive branch. The full D.C. Circuit should take up last week’s ruling and reverse it.

Throughout his tenure as Attorney General, William Barr has shown a shameless, unshakeable will to run interference between President Trump and the two other branches of government—Congress and the courts—to shield his boss from the consequences of his persistent lawlessness. Barr’s decision last month to drop the prosecution of General Flynn is only a recent example.

Flynn, President Trump’s onetime National Security Adviser, lied to the FBI in its investigation of Russian interference into the 2016 elections and potential Russian contacts with the Trump campaign—lying that “Flynn himself has admitted repeatedly in open court.” Flynn told investigators that his contacts with the Russian ambassador did not include discussions of “Russia’s response to the latest Obama sanctions or about a forthcoming UN vote.” They did. Lying to the FBI isn’t just an obviously bad thing to do. It’s a federal crime, a crime that impedes the course of justice.

But dropping the federal prosecution of this crime is not so cut and dried. Virtually ignored by the D.C. Circuit panel majority, the law provides the judicial branch a check when the executive branch attempts a corrupt dismissal of criminal charges.

As CAC argued in a brief filed in federal district court on behalf of criminal law professors, Federal Rule of Criminal Procedure 48(a) was designed to prevent corrupt or politically motivated dismissals that would harm the public interest. The rule provides, in part, “The government may, with leave of court, dismiss an indictment, information, or complaint.” (emphasis added.) Those words, “with leave of court,” mean that the presiding judge has a say in whether Attorney General Barr should be allowed to simply drop the matter, an act that would aid one of President Trump’s stalwart allies by essentially giving him a “get out of jail free” card.

The presiding judge in Flynn’s case, Emmet Sullivan, is a jurist well-respected by observers on the left and the right—or at least was respected by many on the right until he showed independence from the Trump Administration by preparing to hold General Flynn accountable for his actions. Two years before becoming Flynn’s own attorney, Sidney Powell called Judge Sullivan a “judicial hero” and “the perfect judge to decide General Flynn’s motion” to withdraw his guilty plea. Judicial Watch Founder Larry Klayman once wrote that Sullivan “is a rare bird in the federal judiciary today” and that his “hat was off to Sullivan” after ruling the way Klayman wanted in a case he was trying.

Last week’s ruling from the Court of Appeals, however—written by Judge Neomi Rao, a Trump appointee—would eliminate Judge Sullivan’s discretion and prevent him from keeping the government honest in this instance. While other courts have recognized that Rule 48(a) “permits courts faced with dismissal motions to consider the public interest in the fair administration of justice and the need to preserve the integrity of the courts,” Judge Rao’s opinion barely addresses the history of Rule 48(a) at all.

In fact, the text and history of this rule show a specific desire to protect against prosecutors dropping criminal charges for corrupt reasons. Before Rule 48(a) was enacted, for example, a politically-connected defendant in Montana was let off the hook for multiple charges of embezzlement—a decision “abhorrent to justice” according to the judge in that case, who said his hands were tied because at the time, prosecutors had total discretion to drop charges.

That should no longer be true, since after Rule 48(a) was enacted, federal judges may prevent dismissals clearly predicated on the defendant’s political connections. This important check means that Judge Sullivan should have power to keep the executive branch, in the words of James Madison, “in [its] proper place[],” and refuse to allow Attorney General Barr to dismiss such a serious criminal charge against General Flynn.

Last week’s ruling from the Court of Appeals deals a body-blow to checks and balances, ignores the text and history of rules governing such proceedings, and should be taken up by the full Court of Appeals for the D.C. Circuit and reversed.


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