Op-ed

Rehearing in Michael Flynn Case Important to The Rule of Law

The following is authored by LDAD Steering Committee member Stanley J. Marcuss

July 31, 2020 – In a small but significant victory for the rule of law, a federal appeals court in Washington, D.C. has decided to review a 2-1 panel ruling that Michael Flynn, President Trump’s former National Security Advisory, must be allowed to go free despite the fact that he lied to the FBI in its investigation of Russian meddling in the 2016 presidential election.  This may not sound like a big deal, but it is.

Mr. Flynn twice pled guilty to lying to the FBI and was awaiting sentencing for his crimes when William Barr, the U.S, Attorney General, got involved.  Flynn then reversed himself and moved to withdraw his guilty plea. The Justice Department followed suit and moved to have the case against him dropped.  Both assumed that their motions would be granted automatically. 

There was a snag, however.  Court rules do not make the dismissal of criminal charges automatic.  Dismissal requires “leave of court,” that is, approval by the trial court handling the case.  To discharge his responsibility to act as other than a rubber stamp, Flynn’s trial judge began a fact-finding process for determining whether the motion to dismiss the charges was in good faith rather than the product of  improper arrangements between Flynn and the government.

That, astonishingly, is what two of the three judges on the Court of Appeals panel concluded the trial judge could not do.  The panel instead ordered him to dismiss the charges against Flynn without further enquiry.  Over a strong dissent, the panel held that a trial judge could ask questions about a motion to drop charges against someone the government previously thought worthy of prosecution only in extraordinary circumstances and that the Flynn case was not one of those situations.

Flynn was one of President Trump’s close advisors.  He was deeply involved in President Trump’s 2016 presidential campaign.  Flynn admitted he had done wrong and was prepared to go to jail.  The President, however, repeatedly tried to convince the public that Flynn should not be prosecuted and asked the Justice Department to go easy on him.  Flynn’s lies helped shield the President from further enquiry.  

It is hard to imagine a more extraordinary set of circumstances.  They demand explanation.  It is, moreover, easy to imagine that there is more than meets the eye in efforts to drop charges against a confessed criminal who is a friend of the President.

The decision of the full Court of Appeals to review the three-judge panel’s ruling in this case is no indication of what it will ultimately decide. But the decision to review the case undoubtedly reflects a worry we all should have about prohibiting a trial judge from looking behind the curtain to explore facts relevant to dealing with a request like this, one that would let a defendant who has pled guilty to criminal offenses go free. 

The decision of the Court of Appeals to review the earlier ruling also reflects a concern about having the Court deal with an issue the lower court has not yet fully resolved.  The Court of Appeals, therefore, noted in its rehearing order that it was especially interested in hearing about what alternatives Flynn had to asking the appellate court to take the case away from the trial judge.  An appeal after a final judgment is rendered is normally the only course open to a litigant who is unhappy with a trial court decision.  The effect of the panel’s ruling was to prevent the trial court and the public from learning what was behind the Justice Department’s about-face with respect to someone who has admitted he committed a crime.

Regardless of how one feels about Mr. Flynn himself, the review of a troubling decision rendered in a highly charged political environment is a small, but important step in the fight for transparency and the rule of law.  The Court of Appeals has obviously recognized the importance of what is at stake in this case.

Stanley J. Marcuss
Washington, D.C.

The author is a Member of Lawyers Defending American Democracy (LDAD), an organization that filed friend-of-the court briefs in the Flynn case.