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The prosecution of Michael Flynn is not over yet

Under the court’s rules, any active judge of the full DC Circuit can call for review by the entire court. That's exactly what the judges should do.

Michael Flynn, President Trump's former national security adviser, leaves federal court following a status conference with Judge Emmet Sullivan, in Washington, Sept. 10, 2019.Manuel Balce Ceneta/Associated Press

On Wednesday, two accounts of the Department of Justice — one grounded in fact, the other in fiction — were on display in the nation’s capital. The first occurred before the House Judiciary Committee, where Andrew Zelinksy, a career prosecutor currently working at the Justice Department, took the extraordinary step of testifying about political interference in criminal cases from “the highest levels of the Department,” namely by Attorney General William Barr. Zelinsky described career officials being overridden and departmental sentencing practices violated, all to give “a break” to President Trump’s close associate Roger Stone, who has been convicted of conduct that threatened our country’s national security.

At virtually the same moment, a divided three-judge panel of the Court of Appeals for the D.C. Circuit, issued an opinion in the prosecution of former Trump national security adviser Michael Flynn. Barr intervened in that case to give a break to yet another close Trump associate, by filing a highly unusual motion to dismiss the case even though Flynn had already twice pleaded guilty. Under the governing federal rules, such a dismissal requires “leave of court,” and the judge overseeing Flynn’s case, Emmet Sullivan, was preparing to hold a hearing on the government’s request. But in an unprecedented move, the Appeals Court stepped in before Sullivan had even considered the government’s motion and ordered him to grant it.

The appellate court’s highly unusual and legally flawed opinion rests on an account of the Justice Department that blinks reality. Without any appreciation of its ironic timing, given Zelinksy’s simultaneous testimony, the court hung its decision on “the presumption of regularity” that courts typically afford to the Justice Department’s “exercise of its prosecutorial discretion,” including its decisions to abandon ongoing prosecutions. But presumptions are just that: starting premises that can and should be set aside when reality points the other way. And in Flynn’s case, just as in Stone’s, there is ample evidence that the department’s conduct is anything but regular.


As a former federal prosecutor and a professor of criminal law, we know how the Justice Department should conduct itself. On behalf of over 1,000 former federal prosecutors, we filed a brief with Judge Sullivan explaining why the department’s request to abandon Flynn’s prosecution falls into the narrow set of circumstances where a request to drop a case should be denied. Simply put, the surrounding circumstances strongly suggest that the department is pursuing Trump’s personal interests rather than the public interest.


But unusual as the government’s request to drop Flynn’s case is, the D.C. Circuit’s decision ordering Sullivan to grant the request is stranger. As the Supreme Court instructs, appellate courts are courts “of review, not first view.”

Judge Robert Wilkins, dissenting in Flynn’s case, rightly criticized his colleagues for ignoring this principle. As he explained, no appellate court (before Wednesday) has ever “held that a district court must grant ‘leave of court’ … without even holding a hearing on the merits of the motion.” An appellate court telling a district judge what to do in this context, through an extraordinary procedural mechanism called a “writ of mandamus,” is as irregular as what the Justice Department did with Stone and Flynn.

Worse, the court’s opinion rests on at least two clear legal errors. First, the court ordered Flynn’s case dismissed because there is no formal evidence of impropriety in the official “record before the district court.” True enough. But the lack of “formal” evidence, as opposed to information readily available in the public record, is attributable only to the fact that Judge Sullivan has not yet had a chance to hold a hearing when evidence could be introduced. It doesn’t take a legal scholar to see the catch-22 here: the Court of Appeals faults Sullivan for not having in hand the very evidence it prematurely blocks him from acquiring.


Second, the D.C. Circuit majority acted as if its decision were compelled by precedent requiring dismissal. But as Judge Wilkins again persuasively explained in his dissent, that simply isn’t true. While the Appeals Court has previously discussed the relevant rule of criminal procedure, it has never held that a trial judge lacks authority to consider a government’s motion before dismissing a case. Indeed, in its seminal opinion on this issue, the court said “[t]he requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons.” Moreover, the main case cited by the majority opinion actually cuts against its ruling. It highlights the special role courts should play when reviewing a prosecutor’s request to drop a case in which the defendant has already pleaded guilty, as Flynn has — twice.

In short, the court’s decision is both unprecedented and wrong. Fortunately the appeal is not yet over.

Wednesday’s decision was issued by a three-judge panel of the Appeals Court, not the full court itself. And under the court’s rules, any active judge of the full D.C. Circuit can call for review by the entire court. That’s exactly what the judges should do. As the rules explain, such review is intended for cases that involve “a question of exceptional importance,” like this one. Indeed, it is especially appropriate for the full court to review this case on its own initiative, given that the Justice Department and Flynn both want the same thing, leaving the judiciary’s own interest in the integrity of its proceedings unrepresented.


As lawyers like Zelinksy risk their careers to protect the Justice Department’s credibility, the public needs to see justice done in its courts. Every judge on the D.C. Circuit has a stake in ensuring that the judiciary’s integrity is not undermined by a premature acquiescence in the department’s attempt to give yet another irregular and improper break to someone in Trump’s inner circle. When the integrity of our legal system is at stake, the federal Appeals Court should at the very least speak together as a whole.

Andrew Manuel Crespo is a professor of criminal law and procedure at Harvard Law School. Kristy Parker is the former deputy chief of the criminal section of the Department of Justice’s Civil Rights Division and is a lawyer with Protect Democracy.