On Friday June 12, 2020, the Court of Appeals for the D.C. Circuit held a telephonic hearing on a petition for a writ of mandamus filed by Michael Flynn to seek an order forcing District Judge Emmet Sulivan to accept the government’s motion to dismiss. During the hearing, Judge Robert Wilkins revealed his impression of Judge Sullivan’s strategy to keep the Flynn case open when both the prosecution and defense agreed the case should be over.
Judge Wilkins argued, “If the government can’t make the case go away and the case is in limbo, then while it is in limbo, pressure could be brought to bear on the government to reconsider the decision (to dismiss)” To understand how shocking and unfair is this approach to a criminal case, we need to place it in context.
As I’ve written before, the government filed this motion because the case fell apart after the discovery of new evidence uncovered by U.S. Attorney Jeff Jenson. Attorney General Barr assigned Jenson to review the Flynn prosecution when prosecutorial misconduct allegations against Mueller alumnus Brandon Van Grack became too credible to ignore.
Flynn was charged with lying to the FBI but the government’s motion now concedes that (1) the government edited Flynn’s statement without his knowledge such that it can no longer accurately reconstruct what “lie” Flynn supposedly told the FBI, (2) the government can’t prove why what Flynn said was a lie, and (3) the FBI wasn’t interviewing Flynn as part of any legitimate investigation when he supposedly lied. In other words, Michael Flynn is factually innocent based on the Department of Justice’s review of materials Brandon Van Grack attempted to withhold from the defense.
But in the Trump era, Flynn either is not innocent or his innocence is irrelevant to the question of whether to punish him. Exonerating Flynn will help the president, it is calculated, so the Flynn conviction must stand at all costs. And those costs are mounting. The trial judge, Emmet Sulivan, bizarrely has refused to accept the Justice Department’s painful admission that Flynn was wrongfully prosecuted. Instead of ending the case that both sides wanted to end, Judge Sullivan hired a “friend of the court” to keep the case going. This person, former judge Gleeson, applied for the job of “friend of the court” by writing an editorial in the Washington Post.
The get-Trump forces are now arguing that Flynn has exposed himself to “perjury” by withdrawing his plea. Before Flynn had access to the documents Van Grack withheld, he had to rely on the word of the prosecutor. So now, the original plea of guilty is being cast as a criminal act. It’s bizarre and cruel.
Three times during his questioning Judge Wilkins suggested denying the motion to give political forces outside the criminal process an opportunity to pressure the prosecutor to change his decision. What does Judge Wilkins mean by “pressure?” Was he referring to the George Floyd riots and protests? That might seem absurd in a case that has nothing to do with race. But Judge Wilkins introduced race anyway:
Suppose you have a case where…law enforcement officers pleaded guilty to a criminal civil rights violation for using excessive force…and then the government [moves] to dismiss [because] the victim is black. The defendant law enforcement officer is white, and they [the government] did not believe the jury [would] believe the black victim over the white officer…is that proper?
Excuse me, what?! This case is nothing like that hypothetical, the government’s attorney said as respectfully as possible. But Judge Wilkins brought up this scenario an astonishing three times during the short proceedings. Was he honestly trying to compare Michael Flynn’s alleged false statement to a white police officer beating a black victim?
Sydney Powell, Flynn’s attorney, clearly was surprised and shell-shocked by the utter lack of interest by the court in her client’s factual innocence. The oral arguments and questions from the judges are mired in archaic procedural points. But in the end, all three judges seemed reluctant to end Judge Sullivan’s detour and frolic. What could be the harm in allowing Judge Sullivan to have a hearing before sustaining the motion?
Powell was audibly exasperated. “Everybody else in this case is being paid by the government except my client’s team. The toll it takes on a defendant to go through this is enormous and not justified in this case,” Powell answered. The government added that Judge Sullivan’s hearing will force the government to put out evidence regarding how it reached the decision to stop prosecuting Flynn. “That is the kind of judgment that is at the core of Article 2 power.” Outside of running the military, it’s difficult to imagine a more core Article 2 function.
Between the George Floyd protests and the coming election, Judge Wilkins is absolutely right to observe that powerful political forces could be brought to bear against Attorney General Barr. Indeed, if the case can be kept “in limbo” for just a few more months, the November election may bring a new attorney general inclined to overturn Barr’s assessment. Is that a valid legal reason to deprive a criminal defendant of an exoneration? If so, then Flynn’s rights under the Constitution will have been swept away by the politics of the moment.