The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Before the U.S. Court of Appeals decided to grant Michael Flynn's petition for a writ of mandamus ordering the dismissal of the charges against him for lying to the FBI, former federal judge Michael Luttig offered his thoughts on what the court should do. Now that the D.C. Circuit has granted the petition, Judge Luttig has some additional thoughts in the New York Times. Although he was critical of Judge Sullivan's handling of the case, he is quite critical of the D.C. Circuit's handling of the case.
[T]he court mistakenly believed that if the government is entitled to dismissal of its prosecution against Mr. Flynn now (which it is not, by the way), then Mr. Flynn is entitled to dismissal of his prosecution by the government now, too. But that is just not true, because the government's rights and interests in immediate dismissal are vastly different from and greater than Mr. Flynn's, which are lesser by far. And it is Mr. Flynn, not the government, who sought dismissal before Judge Sullivan can rule.
Knowingly or not, the Court of Appeals simply appears to have bungled perhaps the most consequential political constitutional case in recent memory.
Despite this harsh judgment, Luttig is not entirely sure that the full D.C. Circuit should rehear the case en banc. He offers arguments for and against such a step, warning that en banc review will further feed the perception that the case's outcome is driven by politics. He then writes:
while the opinion of the three-judge panel is grievously wrong, and as premature and ill reasoned as its decision was, the court reached the result that almost certainly will be required by law after any hearing that the full court could constitutionally authorize Judge Sullivan to conduct. The government's facially and unrebutted reasons for wanting to dismiss the prosecution — namely that the government itself wrongly investigated and prosecuted Mr. Flynn in the first place and then withheld exculpatory evidence from him in the second place — are constitutionally compelling. Accordingly, the law will almost certainly countenance neither Judge Sullivan's proposed interrogation of the government as to the political ulterior motives and purposes that he suspects — but only suspects — nor at the end of the day a decision to deny his leave for the government to dismiss its prosecution of Flynn.
For those interested in this issue, I also recommend my co-blogger Paul Cassell's post on the decision.