“Each of our three coequal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice,” Rao wrote.
“This is not the unusual case where a more searching inquiry is justified,” Rao added in her opinion, which was joined by Judge Karen Henderson, an appointee of President George H.W. Bush.
The ruling Tuesday may not be the last word on the issue. Any active judge on the D.C. Circuit — including dissenting Judge Robert Wilkins — could call for a vote to bring the matter before the full court en banc. The court’s active bench is currently made up of seven Democratic appointees and five Republican ones.
But the victory, no matter how temporary, was greeted with celebration — not just by Trump, who called the ruling “great!” but his Justice Department too.
“WIN in General Flynn’s case,” said DOJ spokeswoman Kerri Kupec in a tweet adorned with four American Flag emojis.
Trump’s allies on Capitol Hill also trumpeted the ruling, sidestepping the prospect that it could be reviewed by the full appeals court.
“Justice. Finally justice. Justice delayed is better than no justice,” said Sen. Lindsey Graham (R-S.C.) in a statement.
In theory, Sullivan could even ask the full bench of the appeals court to reconsider the issue or he could take the ruling to the Supreme Court, but it would be extraordinary for a district court judge to do either.
“We have no comment at this time,” said Beth Wilkinson, a prominent attorney tapped by Sullivan to represent him during the appeals court fight.
Rao’s majority opinion leans heavily on the “presumption of regularity” often afforded to executive branch decision-making — the notion that courts should presume prosecutorial decisions are made in good faith. Through this lens, Rao and Henderson concluded, the Justice Department’s discovery of new evidence that cast doubt on Flynn’s guilt should be treated with deference.
Wilkins, an Obama appointee, issued a sharply worded dissent. The government’s U-turn in the case, he said, was so abrupt that a judge could reasonably question it.
“This is no mere about-face; it is more akin to turning around an aircraft carrier,” Wilkins wrote.
Wilkins also complained that his colleagues were departing with normal federal court practice by prematurely intruding in the affairs of a district court judge who had not yet ruled.
“It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own,” wrote Wilkins. He added that while the government never actually filed an appeal of its own, the majority’s ruling shutting Sullivan down seems to rest not as much on Flynn’s rights as on the impact on the government of Sullivan’s continuing scrutiny of Barr’s decision.
During arguments earlier this month, Henderson sounded reluctant to order an end to the proceedings before Sullivan, but she wound up siding with Rao in Wednesday’s ruling.
The decision inflamed Trump’s opponents on and off Capitol Hill, with some expressing hope for the appeals court to take the matter up en banc.
“Just finished the Flynn decision. It is an excrescence, as the dissent points out,” said Norm Eisen, a lawyer who helped lead the House’s impeachment inquiry and trial arguments. “It guts one of the most important safeguards of our democracy: an independent judiciary.”
Rep. Ted Lieu, a member of the House Judiciary Committee, called Rao’s opinion “ludicrous” and also encouraged en banc review. Most appeals are filed after a judge rules or a case concludes, but Flynn’s aggressive legal team asked the D.C. Circuit to step in before Sullivan issued a decision on whether to acquiesce in Barr’s decision to drop the case.
The unusual appeal — called a mandamus petition — came after Sullivan named former federal judge John Gleeson to argue against the united front the government and Flynn’s defense presented following the Justice Department’s about-face in the case last month. Gleeson, in a blistering amicus brief, ripped the department for what he said were “preposterous” arguments made in bad faith.
Rao’s opinion says Sullivan caused “irreparable” harm by tapping Gleeson to make arguments that neither side was willing to make.
“The court has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges,” wrote Rao.
Sullivan also signaled last month that he was considering a possible contempt of court charge, prompting Flynn’s lawyers to accuse him of bias and ask that the case be assigned to a new judge.
The ruling Tuesday rejected Flynn’s request to have the case reassigned. Rao said nothing Sullivan had done or said in the case was sufficiently extreme to warrant the extraordinary step of handing the case to another judge.
Whether Sullivan will pursue contempt charges is uncertain. Gleeson urged him not to, and instead to take account of Flynn’s conduct during a sentencing proceeding that the appeals court has now ordered Sullivan not to conduct.
Even if Wednesday’s ruling is overturned, it’s far from clear the retired 3-star Army general and former Defense Intelligence Agency chief will ultimately be sentenced on the false-statement charge, which stems from his answers to the FBI’s questions about his contacts with Russian Ambassador Sergey Kislyak. A pardon from Trump has always been a live possibility.
The Justice Department submission last month signaling its reversal in the case said a review Barr ordered of the case by a U.S. Attorney in Missouri, Jeffrey Jensen, found that the FBI had no legitimate investigative purpose in interviewing Flynn because investigators had weeks earlier prepared memos to close their investigation into whether he had been compromised by the Russian government.
The review raised doubts about whether the government could show Flynn’s statements were material to any pending matter at the time. However, many former federal prosecutors and defense attorneys have said defendants are routinely convicted of and sentenced on false statement charges with only a tangential or theoretical impact on government inquiries.
The false-statement charge Flynn pleaded guilty to in 2017 carries a maximum possible sentence of five years in prison. However, as part of Flynn’s plea deal, both sides agreed that a sentence between zero and six months in prison would be a reasonable one, in accordance with non-binding federal sentencing guidelines.
Mueller’s prosecutors told Sullivan in 2018 they would not object to Flynn receiving a sentence of no jail time. But a dispute over that issue erupted earlier this year after the defense accused the prosecution team — answering to the U.S. Attorney’s Office in Washington after Mueller’s shop closed down — of breaching the plea deal by arguing to the court that Flynn should be imprisoned. Prosecutors later insisted that was a misunderstanding and that they were sticking to their recommendation of anywhere between zero and six months.
Just before Barr’s decision to seek to abandon the case was revealed publicly, the Washington-based lawyer and Mueller office veteran who was the lead prosecutor on the case since its outset, Brandon Van Grack, formally withdrew in an apparent protest against the attorney general’s action. The other career prosecutor on the case, Jocelyn Ballantine, also declined to sign the motion.
That left Timothy Shea, a lawyer Barr had installed a few months earlier as the acting U.S. Attorney in D.C. as the only government lawyer signing the pleading seeking to dismiss the case.
Flynn’s defense has accused the FBI and prosecutors of “egregious” misconduct in the case, with the most withering criticism directed at Van Grack. Powell contends Van Grack sought to elicit false testimony from Flynn in a case involving his business partner.
Van Grack, who was named last year to a senior Justice Department post overseeing foreign-agent issues, has adamantly denied any misconduct.
Rao said in her opinion Wednesday that the government’s motion to dismiss the Flynn case admitted to misconduct by the FBI, but the court submission she cited doesn’t actually go that far.
Barr did say in an interview last month that he believes some of the FBI’s conduct related to Flynn’s case was “troubling.” The disclosure of some FBI records to the defense in the weeks leading up to the government’s motion and as recently as Tuesday also has fueled claims that prosecutors withheld favorable evidence in defiance of an order from Sullivan.
The Justice Department has yet to offer a detailed explanation of why the FBI memos and notes were given to Flynn’s defense more than two years after the case was filed.
However, in a court filing last week, DOJ indicated that Jensen’s extensive review of the case had not led to any change in the government’s stance that prosecutors committed no misconduct.
“Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office,” Justice Department attorneys wrote in the filing.