Michael Luttig on How the D.C. Circuit Should Handle the Flynn Case

A former federal judge (and Supreme Court short-lister) on what Judge Emmett Sullivan (and his critics) got right, and got wrong

There are no shortage of opinions on the Michael Flynn case. President Trump's former National Security Advisor wants to withdraw his guilty plea and the Department of Justice now wants to dismiss the case, despite Flynn's prior plea and a judicial ruling affirming the Department's original theory of the case. Rather than grant the government's motion to dismiss, Judge Emmet Sullivan has sought briefing from amici and appointed retired judge John Gleeson to argue against the motion. In response, Flynn's attorneys are seeking a writ of mandamus from the U.S. Court of Appeals for the D.C. Circuit to force dismissal of the case, and the D.C. Circuit has ordered Judge Sullivan to respond to this petition.

What should the D.C. Circuit do? Today's Washington Post features an op-ed by the Honorable J. Michael Luttig, a former judge on the U.S. Court of Appeals for the Fourth Circuit appointed by President George H. W. Bush and one-time Supreme Court short-lister.

Judge Luttig is critical of Judge Sullivan's handling of the case. At the same time, he rejects the core argument of Judge Sullivan's critics, that Sullivan is obligated to grant the Justice Department's motion to dismiss. After all, that's not what Rule 48 of the Federal Rules of Criminal Procedure says or means.

Judge Luttig writes:

The rule of law instructs that U.S. District Court Judge Emmet G. Sullivan has the power — indeed, the obligation — to determine whether dismissal of Flynn's case would be in the public interest and whether the integrity of the judicial process would be compromised by granting the government's dismissal request. This authority stems from the federal criminal rules of procedure and the trial judge's inherent authority. If this authority were properly exercised, the judge's refusal to dismiss the case would not impermissibly usurp the executive's exclusive constitutional power to decide whether to bring or maintain a criminal prosecution.

Judge Luttig believes Judge Sullivan erred by inviting amici submissions and appointing Judge Gleeson to argue against dismissal. In his view the D.C. Circuit should grant the writ insofar as it seeks a reversal of these orders. According to Judge Luttig, the D.C. Circuit should also consider whether the case should be remanded to a different district court judge.

Judge Luttig concludes:

Were either Sullivan or another judge eventually to decide that it would be contrary to the public interest to dismiss the prosecution or that to do so would undermine the integrity of the judicial process, that judgment could be appealed.

The appeals court would then confront a novel and nettlesome question. The trial court has indisputable, but very limited, power to refuse the government's request. Here, because the government contends that the case should be dismissed because of its own confessed misconduct, and therefore the government's prosecutorial interest is at its zenith, it would be exceedingly difficult for a court to substitute its view and override the government's contrary assessment. Under our Constitution, the decision whether to prosecute to the final stages of conviction and sentence is committed wholly and exclusively to the executive branch of the government — almost.