The U.S Court of Appeals for the District of Columbia Circuit prevented the Michael Flynn case from becoming a new investigation of the Trump administration on Wednesday when it granted a writ of mandamus requiring a lower court to dismiss charges against him.
In the majority opinion for the 2-1 decision, Judge Neomi Rao noted that lower court Judge Emmet Sullivan, who is presiding in the Flynn case, had opened the door to an entirely new investigation by inviting retired judge John Gleeson to file amicus curiae (“friend of the court”) arguments as two why the Department of Justice should not be permitted to drop the case after exculpatory evidence emerged.
Gleeson, Rao observed, had demanded the ability to investigate the Department of Justice, as well as to probe for any new factual information in the case that he deemed relevant:
The district court chose an amicus who had publicly advocated for a full adversarial process. Based on the record before us, the contemplated hearing could require the government to defend its charging decision on two fronts— answering the district court’s inquiries as well as combatting Gleeson’s arguments.
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And we need not guess if this irregular and searching scrutiny will continue; it already has. On May 15, Gleeson moved for permission to file a brief addressing, among other things, “any additional factual development [he] may need before finalizing [his] argument” and suggesting a briefing and argument schedule. … The district court granted the motion and then set a lengthy briefing schedule and a July 16, 2020, hearing. … In his brief opposing the government’s motion, Gleeson asserted the government’s reasons for dismissal were “pretext” and accused the government of “gross prosecutorial abuse.” … He relied on news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases.
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These actions foretell not only that the scrutiny will continue but that it may intensify. Among other things, the government may be required to justify its charging decisions, not only in this case, but also in the past or pending cases cited in Gleeson’s brief. Moreover, Gleeson encouraged the district court to scrutinize the government’s view of the strength of its case—a core aspect of the Executive’s charging authority.
In the view of the D.C. Circuit, Gleeson was asking for the power to scrutinize the internal deliberations of the administration. That, Rao implied, was an abuse of power, as well as an affront to the Constitution’s separation of powers.
Unless the decision is appealed to a full panel of the D.C. Circuit, it will end Flynn’s legal saga, which has continued for more than three years.
Flynn was targeted by the outgoing Obama administration, and accused of lying to the FBI even though he was not under investigation, and the agents who questioned him did not believe he had lied at the time.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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