Judge Neomi Rao’s opinion on In re: Michael T. Flynn It is simply amazing.
It involves the surprising decision by the Justice Department to drop the charges against one of President Trump’s former top aides, almost three years after that aide pleaded guilty to lying to the FBI. And Rao’s opinion takes extraordinary liberties with the law.
His opinion affirms jurisdiction over a case that the Rao court has no right to hear. It is based on a rarely invoked process that the Supreme Court described as a “drastic and extraordinary remedy” that is “reserved for truly extraordinary causes.” And it prevents a trial judge from hearing arguments that Rao and one of her fellow Republicans, Judge Karen Henderson, apparently believe that the trial judge should not even be allowed to reflect before making a decision.
Nor is it Rao’s opinion in Flynn out of place for the newly appointed lawyer. In less than two years on the bench, Rao has repeatedly conveyed opinions for the benefit of Trump and his assistants that are based on highly dubious legal reasoning.
The only saving grace of the court’s decision in Flynn is that Rao and Henderson are outliers of the far right in the United States Court of Appeals for the District of Columbia. There is a possibility that the entire court, which has the power to reconsider Rao’s opinion even if neither party requests such reconsideration, will throw Rao’s opinion in the trash.
The case involves the Trump Justice Department’s decision to drop the charges against a former Trump aide.
The case stems from the Justice Department’s abrupt decision to abandon its successful prosecution of Michael Flynn, a former general who briefly served as President Trump’s national security adviser. In 2017, Flynn pleaded guilty to lying to the FBI about his contacts with the Russian ambassador to the United States.
However, almost three years later, the Justice Department decided to drop the charges against the former Trump aide. Although the Justice Department admits that Flynn lied to investigators, the Justice Department now claims that these lies could not conceivably have “influenced” an investigation that had no legitimate or counterintelligent or criminal purpose. “
In particular, the Justice Department filing seeking to drop the charges is signed only by a single political representative. Such documents are also typically signed by professional Justice Department attorneys without loyalty to a particular administration or party.
Brandon Van Grack, the chief prosecutor against Flynn, withdrew from the case shortly before the Justice Department sided with Flynn.
Trial judge wants to hear a full range of arguments before settling Flynn’s case
It is very unusual for prosecutors to drop the charges years after obtaining a guilty plea. Furthermore, the Federal Rules of Criminal Procedure only allow the government to dismiss a prosecution “with the permission of the court.” So Judge Emmet Sullivan, the trial judge presiding over this case, decided to hold a hearing next month to address how he should proceed, and also to consider whether Flynn should be dismissed for perjury, a charge that a court can pursue without the consent of the Department of Justice.
Because the Justice Department abandoned his prosecution, Sullivan also asked a court-appointed attorney to discuss the case against Flynn. This is common practice when none of the attorneys appearing in a case have presented important arguments at the heart of that case. In Seila Law v. CFPBFor example, the Supreme Court recently appointed former Attorney General Paul Clement to defend a lower court ruling that neither party Seila Law in accordance with.
Notably, Sullivan has taken no action against Flynn. It has not ruled that the guilty plea must be preserved by the Justice Department’s objection. Nor has he despised Flynn. Judge Sullivan simply scheduled a hearing and asked a lawyer to brief him on the best legal arguments against Flynn’s position before Sullivan makes a decision.
Judge Rao’s opinion ignores the ordinary procedures of the judiciary.
If Sullivan finally rules against Flynn, once again, there is no guarantee that he will, that order can be appealed to the DC Circuit. However, Rao’s opinion concludes that Sullivan cannot even consider arguments that undermine Flynn’s interests.
Rao’s central idea is that “decisions to dismiss pending criminal charges, no less than decisions to initiate charges and identify which charges to file, are directly within the scope of procedural discretion.” So if prosecutors decide to dismiss the charges against an individual, that’s the end of the case.
Perhaps Rao is right about it, although there are many historical examples of court-appointed attorneys prosecuting federal crimes, but the central problem with his opinion is that Rao’s court does not have to intervene before Sullivan decides the case.
The “drastic and extraordinary remedy” sought by Flynn is known as a “commandment of mandamus”. As Judge Robert Wilkins explains in a dissenting opinion, courts of appeal can only award a mandamus remedy if the person seeking the remedy has “no other appropriate means of obtaining the relief they want” and “their right to issue of the car is clear “and indisputable. ‘”
But Flynn has absolutely no other suitable means of obtaining the primary relief he seeks in this case: dismissal of the charges against him. Flynn and her attorneys can discuss her case before Judge Sullivan. If Sullivan agrees to dismiss the charges, Flynn wins! If Sullivan does not dismiss the charges, Flynn may appeal this case to the DC Circuit, which may well rule in Flynn’s favor once the case is properly before that court.
Nor is Flynn’s right to relief from the mandamus “clear and indisputable.” Rather, the DC Circuit held in 2015 that “the mandamus is inappropriate in the presence of an obvious means of review: direct appeal of the final judgment.”
Therefore, in their apparent zeal to grant relief to a former Trump aide, the majority of the two justices, Rao and Henderson, ignored the very strict limits that prevent their court from issuing a commandment of mandamus.
Rao has a history of writing dubious opinions that benefit Trump and his allies
Henderson is a very conservative judge who sometimes took positions to Judge Brett Kavanaugh’s right when Henderson and Kavanaugh served together in the same court.
Meanwhile, Rao, who served in the Trump White House and only became a judge in 2019, has quickly built a reputation as a rubber stamp for the Trump administration’s preferred results. She wrote a widely mocked dissenting opinion that would have blocked much of the power of Congress to investigate Trump. And she tried to delay the House’s ability to obtain documents related to the investigation by former special adviser Robert Mueller into possible Russian interference in the 2016 election.
It would also have stripped the federal judiciary of much of its authority to review the Trump administration’s efforts to quickly deport immigrants.
Rao, however, is a minority on his court. Currently, the appointed Democrats control seven of the 11 active judges on the DC Circuit, and the entire court has the power to overturn Rao’s opinion through a process known as an “en banc” review.
So while Rao went far enough to benefit a former Trump aide in FlynnIt is far from clear that she will have the last word.
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