I am not going to go on at length about this. By now, I hope those of you who watch the news about such things, are aware that the United States Court of Appeals for the District of Columbia Circuit has, in a 2-1 panel decision, intervened in a District Court judge’s consideration whether to permit the government to drop its prosecution of Michael Flynn for lying to the government.
Flynn admitted twice, I believe, under oath, that he had lied. The prosecution, under orders from Trump’s personal attorney/U.S. Attorney General William Barr, decided out of the blue that the government should not have been questioning Flynn in the first place and, therefore, his admitted lying was apparently unimportant.
The presiding judge, Emmet Sullivan, apparently thought, with justification, that something funny was going on and decided that, before granting the government’s motion to dismiss the prosecution, he would delve more deeply into what might be up. This, of course, sent the Trump administration into a delirious state and it sought a mandamus (a form of a court order, like an injunction, directed in this case to the District Court) from the Court of Appeals, thereby bypassing the problematic course of trying to get permission for an interlocutory appeal (normally one cannot appeal if the lower court has not entered a final order).
As forcefully noted by the dissenting opinion, the decision of the two judges in the majority effectively means there is zero chance for judicial oversight over dubious or corrupt decisions by prosecutors. In the Flynn case, there is good reason to believe that the decision to drop the prosecution was driven by the Attorney General who these days operates as if her Donald Trump’s personal attorney. Not least is the fact, as reported by Politico, that
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.
By granting the mandamus motion, the Court of Appeals took the extraordinary step of taking over the case and deciding it before the District Court had concluded its consideration and issued an opinion. This had the effect, clearly intended, of foreclosing any inquiry that might have revealed disturbing, to put it mildly, facts about the basis for the decision to end the prosecution.
But it’s not over until the last batter is out. Any judge on the Court of Appeals, including Judge Robert Wilkins who wrote the blistering dissent, can ask the full court to hear the case. Judge Sullivan, for reasons not clear, has put all dates on hold. This may signal his intention to seek an en banc consideration or something else. He could be planning to comply with the Circuit Court order but with an “opinion” on the case as he now views it. Time will tell.