The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit voted 2-1 that the case should be immediately dismissed — cutting off the upcoming hearing planned by the Judge Sullivan. The panel criticized the appointment of former judge John Gleeson to argue for prosecution . . . against the prosecutors. Sullivan’s orders were described as “irregular” and potentially damaging to the system of justice.
Many former prosecutors and academics insisted that Sullivan’s orders were entirely appropriate and that he should reject the motion and refuse to dismiss the case. Indeed, the media published few dissenting views. Indeed, UCLA Law Professor and former U.S. Attorney under Bill Clinton, Harry Litman insisted that I was “a very lonely voice in the wilderness” in academia in contesting the use of an outside lawyer make arguments in a criminal trial case that neither the defense nor the prosecution supported. While some of us gave detailed reasons why Sullivan’s orders contradict governing case law, these objections were dismissed and even recast as nefarious. In the Washington Post, Randall D. Eliason wrote that “the strident opposition by Flynn and his supporters to the court gathering more information suggests that they have something to hide. Let’s hope Judge Sullivan gets to the bottom of it.”
Now it appears that commentators are attacking the fact that two of the three judges (Neomi Rao and Karen L. Henderson) were Republican appointees. It is not relevant that dissenting Judge Robert Wilkins is an Obama appointee. Only the motivations of the majority are placed into question. This is coming from many of the same people who (correctly) criticized President Trump for dismissing opinions as the work of Democratic or Obama judges. That attack however seems entirely permissible when judges rule in favor of the Administration.
Judge Sullivan can seek an en banc review. Some judges would likely feel uncomfortable to ordering the dismissal rather than allowing Sullivan to reach that conclusion on his own. This is a rare and controversial move. I was expecting a remand with stern language on the law governing these decisions. Many judges likely agree with the concerns over Sullivan’s actions and the arguments raised by Gleeson. However, the mandamus issue could be something that other judges want to review. The issue for Judge Sullivan is whether such an appeal advances any substantive legal purpose. The law in this area is very clear on the deference afforded to the government. Despite Gleeson’s filing, it was absurd to argue that Sullivan should send a person to jail when the prosecutors are denying the basis for the crime. Now two judges have expressed such disagreement with his measures that they are ordering a dismissal rather than let Sullivan proceed with a hearing. There comes a time when the judicious course is to end the controversy, particularly when the ultimate conclusion was never in serious doubt. Otherwise, the trial court seems to eager to hold a hearing that will shed more heat than light.
Here is the opinion: Flynn Decision