Criminal Law

Judge Luttig on How the D.C. Circuit Bungled the Flynn Case

Former federal judge Michael Luttig thinks that the D.C. Circuit did not really understand what was at stake.


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.

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  1. The entire Flynn affair has been suffused with politics — and crass politics — at that. I guess my question is: if it were any other defendant, would the reactions be any different?

    I think the question answers itself.

    1. If it were (almost) any other defendant, it wouldn’t be the former National Security Advisor. That makes the thought experiment a bit difficult.

      1. I was referring more to the question of there being actual exposed FBI malfeasance and then the DOJ moving to dismiss charges due to the FBI’s malfeasance. This has all happened before (Sen Stevens, a bigger fish than National Security Advisor), but the histrionics and the hyperventilating are new elements.

        1. There has been no malfeasance in this case, and nobody on the planet would think there was if this guy weren’t a Trump crony.

          1. I should say, no FBI malfeasance; there was obviously malfeasance by Barr.

            1. At a minimum, the failure to produce relevant and exculpatory evidence is malfeasance. And there’s no question AT ALL that happened, and it appears to have been deliberate.

              1. Agreed; there’s no question: it didn’t happen. We know that, because no exculpatory evidence that was purportedly withheld has ever been revealed. (You will note that the DOJ’s motion to dismiss does not make Sidney Powell’s loony argument. It does not say that there were any Brady violations.)

                1. Look, your “I’m just going to deny everything happened!” schtick is getting old. We’re in Python territory at this point:

                  “Man: An argument isn’t just contradiction.

                  Mr. Vibrating: It can be.

                  Man: No it can’t. An argument is a connected series of statements intended to establish a proposition.

                  Mr. Vibrating: No it isn’t.

                  Man: Yes it is! It’s not just contradiction.

                  Mr. Vibrating: Look, if I argue with you, I must take up a contrary position.

                  Man: Yes, but that’s not just saying ‘No it isn’t.’

                  Mr. Vibrating: Yes it is!

                  Man: No it isn’t!

                  Man: Argument is an intellectual process. Contradiction is just the automatic gainsaying of any statement the other person makes.

                  (short pause)

                  Mr. Vibrating: No it isn’t.

                  Man: It is.

                  Mr. Vibrating: Not at all.

                  Man: Now look.”

                2. But I certainly don’t “deny everything.” For instance, I don’t deny that Flynn broke the law by lying to the FBI about his dealings with the Russians. I don’t deny that Flynn lied about those dealings in other contexts, such as his conversations with Pence. I don’t deny that Flynn broke the law in other ways. I don’t deny that Flynn violated the Logan Act. I don’t deny that Flynn was acting as an undisclosed agent of a foreign government while serving on the Trump campaign. I don’t deny that Flynn confessed and pleaded guilty of his own free will, to avoid more serious charges against him. I don’t deny that Flynn was indisputably guilty, that the actual transcript conclusively proves his guilt.

                  I just deny that there were imaginary documents that proved he didn’t lie, or anything that wasn’t disclosed proved he didn’t lie, or that diplomatic dealings with the Russian government are not matters within the jurisdiction of the executive branch of the U.S.

            2. Are you paid to be comic relief here?

              1. If he is, he’s being paid too much.

          2. No malfeasance? Really? Absolutely none? No POSSIBLE Brady material that somehow wasn’t disclosed?

            1. Correct.

              1. Wouldn’t the original transcript of the call be potentially Brady Material? You know, if that call (and lying during it) is exactly what is being called into question?

                1. Since the original transcript of the call tends to corroborate Flynn’s guilt rather than exculpate him— no, it isn’t Brady material, “potentially” or otherwise.

                  1. Exactly. I mean, it was a silly argument before the transcript was released, but now that it has been, we know for a fact that it isn’t exculpatory.

                    1. You every look at SPECIFICALLY what was the lie?

                    2. Yes.

                  2. Really? And it was disclosed?

                    What about the FBI 302 statements? The statements regarding the investigation? The statements regarding the FBI director’s view on the case?

                    These all seem to be Brady material. And they weren’t all disclosed.

                    1. The FBI 302 statements were all disclosed. All of them. Every one. There is no missing one. It is a delusional conspiracy theory by Powell. Not only were the 302 statements diclosed, but the original interview notes were disclosed.

                      That Comey may have said he thought it was a tough case to make is not evidence, so it’s by definition not exculpatory evidence.

  2. “most consequential political constitutional case in recent memory”

    No hyperbole there, nope.

    Its a trivial case. Flynn is not going to prison, no matter what.

    1. Should I spend a few minutes reading Luttig’s opinion?

      “…the most consequential political constitutional case in recent memory…”

      No, I don’t think I should waste my time.

    2. “Flynn is not going to prison, no matter what.”

      That is quite the unqualified declaration.

      First, has the prospect of a contempt proceeding (for lying to a federal judge under oath) been extinguished?

      Second, is it certain the dismissal demanded by the circuit panel is to be effected with prejudice?

      1. Baizou.

      2. The mandamus order directed the district court to grant the motion to dismiss, which itself requested a dismissal with prejudice, so I think that part is about as certain as it’s going to get.

        I agree that (assuming Trump is not re-elected), Flynn has some exposure if either a Sullivan or the new DOJ want to pursue the matter, although I would be a little surprised if they did.

  3. I think Luttig is right both that the DC Circuit reached out to decide the case by mandamus when there was no need to, and that ultimately Flynn is going to be legally entitled to a dismissal anyway. And that makes the case for en banc review pretty slim.

    1. Particularly since the underlying legal issue isn’t going to come up a lot.

      1. That’s absolutely right. En banc review is usually granted for institutional reasons, to resolve intra-circuit splits or to decide recurring issues. This isn’t present here.

    2. Disagree; the case for en banc review is that this decision completely mucked up the law of mandamus. Do circuit courts really want to encourage litigants to appeal decisions that haven’t even been issued yet?

      1. I think the earlier case that the Court relied on here already did that.

        1. If you’re talking about Fokker, no. There was an actual denial of the motion by the trial court in Fokker. They were not appealing via mandamus the mere fact that the district court was considering the motion rather than rubber stamping it when it was filed.

          1. But note that in the context of a DPA, delay actually has legal significance — unlike here. Here, waiting a month or two to decide could not and did not legally prejudice Flynn.

  4. The government goes on a witch hunt and bullies an innocent man into pleading guilty to a crime he didn’t commit. The government then realizes that there has been a miscarriage of justice and seeks to drop the case.

    And the problem is?

    Isn’t it an established principle that we don’t throw innocent people into prison?

    1. The problem is that one might wonder why the government changed its mind. Prosecutors don’t usually up and voluntarily confess to being guilty of framing an innocent man.

      1. It’s obvious why the government changed its mind, Flynn asked to withdraw his guilty plea, and there was a good chance he’d be able to because the government didn’t disclose all the terms of the plea to the court, and his original attorneys had a conflict of interest.

        If they then had to try the case their star witnesses would have to be Stzrok and Page both of whom would probably end up pleading the 5th over why and when they edited Flynn’s 302.

        There really isn’t much of a mystery of why the government would want to drop the case if they had to actually try it in open court as opposed to coercing a guilty plea by threatening to prosecute Flynn’s son.

        1. I wonder why Trump fired Flynn and then libeled him on Twitter??

          1. Always with the red herrings about Trump’s tweets. Utterly irrelevant.

          2. Politics and image.

          3. I presume because he didn’t know at the time that his own DOJ was slandering Flynn to him.

            1. Trump still had faith in Comey and the FBI then.

              He knows better now.

            2. The DOJ had nothing to do with it. Flynn lied to Pence. They knew that for a fact.

              1. Exactly. That was more than sufficient reason to fire him.

                And he unquestionably lied to the FBI. The prosecution was justified and would almost certainly be successful if Barr hadn’t pulled the plug.

              2. Fynn never lied to Pence. (not a crime anyway) Flynn never lied to the FBI, Flynn is innocent. Trump haters are stuck arguing arcane legal minutia. Ignoring the facts that the executive has the power to decide whether to prosecute or not. Judges have no say.
                Everything else is nothing but a vehicle to hide the Trump haters mental delusions.
                I would think in a law blog, Facts would supercede legalese. But to some here the law needs protected, not the innocent.

                1. Flynn told the FBI that he wasn’t talking to Russia or Turkey.

                  It turns out he was.

                  Is that incorrect?

                2. Fynn never lied to Pence.

                  Uh, Pence went on TV and said “They [meaning Flynn and the Russian ambassador] did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia. What I can confirm, having spoken to him about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.”

                  But we have the transcript, and in fact the conversations had everything to do with that.


                  1) Flynn lied to Pence; or
                  2) Pence lied about what Flynn said to him.

                  Take your pick.

                  But we know the WH fired Flynn for this, so we know which one of those two possibilities they believed.

                  1. Yes we do have the transcripts, Flynn urged Russia not to escalate the tit for tat. Let things cool so President Trump does not start with being boxed in and forced into responding to actions taken by Russia in anger. Nothing in the transcripts is out of bounds, and according to Comey the “conversations are legit” We have no idea why the FBI accused Flynn of lying to Pence. The only reason it was in the news is because the FBI leaked there accusation to the media. But according to some, leaking criminal investigation findings to the media is NOT malfeasance.

                  2. Pence has since learned the truth and in an interview said he would welcome Flynn into the Trump administration. So he trusts Flynn. The FBI? not so much.

              3. You have no idea of what the FBI told Pence. Must likely they created some fiction.

    2. The government then realizes that there has been a miscarriage of justice and seeks to drop the case.

      Sure. That’s what happened.

      1. Bernard,
        That is absolutely what happened. The FBI went in and told Flynn, “You better lie to the Vice President and the President about your corrupt dealings during the campaign re Turkey. Then, when we sent FBI agents to question you about your dishonest dealings during the campaign, we don’t care what you tell us, *as long as* you include some lies.”

        And poor, defenseless, helpless, weak-as-a-kitten, impotent Flynn did exact that. Oh yeah, and that earliest FBI contact also included orders, “When and if you’re in front of a court and put under oath, you have to lie again, and falsely admit to crimes that you actually didn’t do.” Flynn followed these instructions as well.

        Bernard, why can’t you see that? It’s obvious to me and all other right-thinking Americans. Why don’t you care more about the rights of poor, pathetic, misunderstood, mistreated, Gen. Flynn?

        Please excuse me. I need to readjust my tin-foil hat and hide again from the black helicopters that are coming for me.

        1. He wasn’t charged with any of that.

          The only charges dealt with his call to the Russian ambassador during the transition, and Comey said neither FBI agent thought he was lying.

          1. I wonder Trump’s appointee McGahn advised Trump to fire Flynn? And then Trump’s appointee Rosenstein appointed Mueller…maybe next time Trump is president he will be more careful about who he appoints to important positions. 😉

            1. You come into politics from outside, you don’t have folders full of people to hire. You have to rely on people who are already in politics to give you recommendations.

              Trump’s problem was that he didn’t realize the lengths the GOP establishment would go to sabotage his administration.

              1. They went so far as to install a mentally challenged sociopath in the Oval Office itself, just to sabotage his administration.

                1. And the GOP establishment around the country is engaged in deliberate and systematic voter suppression, in order to try and get Trump a second term. If only my enemies would “sabotage” me like that.

                  1. How do you feel about the recent election in Patterson, New Jersey?

                    1. Bad. It seems like bad people on both sides do, well, bad things.
                      Very Good. It is clear that the security safeguards worked in this case, showing that it is very very difficult to commit voting fraud in a way that (1) will get close to affecting the election, AND (2) can escape the attention of those monitoring elections.

                      I demand my right to own a gun. In spite of the thousands and thousands of examples each year of people misusing guns, obtaining guns by fraud, etc.. That’s a tiny fraction of overall gun ownership, and of gun use, and we should not diminish my cherished rights due to some bad apples…even thousands of bad apples. Similarly, the fact that a tiny tiny percentage of bad acts happen in re to voting is a great reason to hire more people to monitor elections, but is a terrible reason to suppress the votes for the 99+% of honest voters.

                    2. “Very good”…

                      Throwing out 20% of the ballots is “very good”?

                    3. ” It is clear that the security safeguards worked in this case,”

                      It’s not remotely clear that they worked in this case, save in the sense that enough of the fraud was caught that the election is going to be redone. All that was really demonstrated is that it’s possible to get caught if your ballot tampering is sufficiently crude. If, for example, you don’t bother taking the rubber band off the bundles of ballots before tossing them in the mail box.

                      What’s notable is that every security feature that enabled this fraud to get caught is currently under systematic attack. Signatures didn’t match? Democrats are suing to end signature matches. Bundles of ballots? Democrats are trying to legalize ballot harvesting.

        2. I’m always confounded by the perjury claims in regards to pleading guilty for plea deals here.

          Is the REALLY something you want to be on the books? If someone pleads guilty, then tries to withdraw it later (due to whatever event), it ends up in being a perjury charge? Really?

          1. Really. Every criminal defendant is sworn in when he allocutes. Why do you think that is?

            1. So, you honestly believe, that whenever a defendant withdraws a guilty plea, for whatever reason, the defendant should be charged with perjury?

              1. Of course not. But if the defendant lied under oath while allocuting, what’s the argument against perjury charges?

                1. “Of course not”

                  Perhaps you can enlighten me as to your reasoning why withdrawing a guilty plea, made under oath, should be able to be done under perjury?

                  Personally, I’m hard pressed to find ANY examples of perjury charges (let along convictions) due to withdrawing guilty pleadings, as well as the associated allocution…

                  Perhaps you can find one.

                2. If the defendant lies under oath in a plea agreement, what’s the argument for not charging the prosecutor with suborning perjury?

              2. No, only the times where the defendant commits perjury.

                Why do we bother placing defendants under oath if we’re not actually going to hold them accountable if they violate?

                1. “No, only the times where the defendant commits perjury.”

                  Which is…basically all the time.

                  When pleading guilty in federal court, a defendant must testify under oath regarding the facts establishing their guilt.

                  Perhaps you’re not aware how guilty pleas and plea bargains work in the current American Justice system?

                  If not, read this.


                  1. Defendants seek to withdraw their pleas all the time in ways that don’t involve acknowledging that they committed perjury. (I know this because, unlike you, I actually practice criminal law.) But if we’re going to categorically exempt the ones who do lie under oath from the consequences of doing so, what’s the point of holding the colloquy in the first place?

                    1. And I’m sure you proceed with cases where you have a conflict of interest but despite that conflict only work for your client’s good at your own detriment. Just how often do you work with opposing counsel to railroad your clients is a question that has to be asked if you find nothing wrong here.

                    2. Please explain the conflict of interest you perceive in this case.

                    3. So, here’s a nice article on it


                      I will pull out some sections

                      “Logically, it is incongruous that statements made at a plea proceeding that was initially unfair can, nevertheless, be used to convict a defendant for perjury. A literal reading of rule l1(e)(6),1 50 however, would authorize such a prosecution against a defendant who states under oath that his plea of guilty is voluntary, if it later appears that the plea was in fact coerced. This problem was discussed in the House of Representatives,I s ‘ where it was agreed that statements made in connection with coerced guilty pleas should not be admitted into evidence under the exception to rule 1l(e)(6), on the ground that such statements would be tainted and a perjury prosecution would not lie.’ sz Although no change was made in the proposed bill to reflect this clarification, 153 it is clear that the legislature intended that statements related to a coerced plea of guilty should not be used against the defendant in a subsequent perjury prosecution. In the event that a plea bargain negotiated by the prosecution and the defense is rejected, the district court must afford the defendant an opportunity to withdraw his plea. 1 5 4 If the defendant takes advantage of this opportunity, however, the Government may then be able to “go after the defendant for perjury.” 55 Although a defendant has an automatic right to withdraw his guilty plea in such a case, his ability to exercise that right may be effectively thwarted by the threat of a perjury sanction.I s 6 Such intimidation would appear to violate the insistence by the Supreme Court that a defendant’s procedural rights should not be curtailed. For example, it has been held that a defendant’s right to appeal may not be restrained by the threat of receiving a stiffer sentence, should he exercise that right. 1 5 7 Similarly, a defendant should not be dissuaded from exercising his statutory right to withdraw his guilty plea through fear of a subsequent perjury prosecution. It is likely that a defendant who withdraws his plea may be effectively precluded from asserting his innocence at trial, because of the availability of the perjury sanction. If he should contradict statements made at the plea proceeding, while testifying in his own behalf at trial, he would afford the Government the basis for another prosecution against him. Moreover, the sanction serves as a punitive mechanism because it would most probably be imposed upon a defendant who, after withdrawing his plea, is acquitted of the charges at trial.”

                    4. So… your argument is based on a student note in a law review? A note that doesn’t deny what the law is, but just expresses discomfort with it?

    3. The government did not go on a witch hunt, did not bully him, and he’s not innocent. Other than that, your facts are correct.

      1. Still sticking with stark denial, are we?

        1. He’s still never acknowledged that the “Hands up, don’t shoot!” narrative he was pushing was bullshit. Integrity doesn’t seem to be one of his faults.

          1. I don’t know what you think I was “pushing,” or what you think was “bullshit.” Tellingly, you don’t cite anything I actually said,

            (I do know that it’s undisputed that Darren Wilson shot an unarmed person, though, after harassing him for the ‘crime’ of jaywalking.) The DOJ found that there was insufficient evidence that Wilson’s act was a federal crime; I’ve never denied that.

            1. I don’t know what you think I was “pushing,” or what you think was “bullshit.”

              You were full-bore regurgitating the “hands up, don’t shoot” mantra (which was bullshit) and declaring Darrin Wilson’s guilt as a murderer, and you know it.

              Tellingly, you don’t cite anything I actually said,

              It’s telling that you think it’s telling that I didn’t cite content from nearly 6 years ago at a blog that no longer exists.

              (I do know that it’s undisputed that Darren Wilson shot an unarmed person, though, after harassing him for the ‘crime’ of jaywalking.)

              LOL! And you just said you didn’t know what “bullshit” you were “pushing”.

              The DOJ found that there was insufficient evidence that Wilson’s act was a federal crime; I’ve never denied that.

              They found more than that. For instance, that all of the physical evidence and credible eyewitness testimony was consistent with Wilson’s version of events, and that none of it supported the “Hands up, don’t shoot” narrative that you and others were peddling (and continued to peddle after that report came out). But you already knew that.

        2. Stark denial of blatant falsehoods seems like a reasonable strategy.

      2. January 4th 2017 The FBI dropped any investigation of Flynn, due to lack of derogatory information. Facts really mess up the hate you have going on.
        There is no reason to interview Flynn. With corrupt intent, the FBI ignored DoJ rules and did not request an interview with White House staff, through the White House Office of Legal Counsel. Malfeasance would be a good word to use here. Acting AG Yates went ballistic when she found out an interview happened ignoring
        protocol in place to protect the DoJ from charges of political hackery.
        Flynn never committed a crime.

  5. ” 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. ”

    Sullivan’s failure to acknowledge this issue and his complete dismissal of the problems of the prosecutors misconduct is what led the DC circuit court to step in.

    What was the Appeals court supposed to do when the trial court judge decides to act as the prosecutor?

    1. Wait until Sullivan issues a denial of the Rule 48 motion, and then reverse it.

      1. Even though he is engaging in unreasonable delay tactics? After the motion by DOJ was filed the judge should have ruled in 1-2 weeks. Not set a briefing schedule and a hearing months out with no timetable for a ruling.

        This egregious downplaying of Flynn’s liberty interests that are at stake by multiple people is frankly bizarre. Justice delayed is justice denied.

        1. Flynn has no complaint about delays. He’s consistently tried to get postponements. I suppose his idea was that if could stretch things out until after the election he might get the promised pardon without spending any time in jail.

          1. Bernard,

            That doesn’t mean he’s not entitled to his liberty interests.

            1. Has he spent even five minutes in jail? He’s not a poor black kid awaiting trial.

            2. He’s at liberty. He delayed in order to maximize the time he is at liberty.

          2. Had he? Or has the “government” (IE Mueller) done it?

            1. The delays in the case (prior to the filing of the Rule 48 motion) all seem pretty clearly attributable to Flynn. Which do you think are attributable to the government?

              1. This one, February 27th

                1. The article expressly says that Flynn and the government both requested the continuance.

                  1. “Which do you think are attributable to the government?”

                    “The article expressly says that Flynn and THE GOVERNMENT both requested the continuance.”

                    1. When both parties ask for a continence, unless you’re working in a different language than anyone else, the government isn’t responsible for the delay.

          3. The defendent is not bound by ‘speedy trial’ interests. The govt is bound.

        2. Once again: there were no “unreasonable delay tactics.” Sullivan set a quick schedule, and the hearing was not “months out.”

        3. I don’t see his liberty interests as tiny, either. Certainly if it is a wrongful dismissal, that could be investigated as a separate issue. Certainly the current status smacks of doubling down on a political prosecution, a no no.

          1. His liberty interests in having the case closed out a couple weeks earlier than it otherwise would be? I could maybe see the argument if he were in custody (although that would typically not be enough in any other context), but not when he’s on release with no bail and no meaningful restrictions.

          2. The is NOTHING to hang a wrongful dismissal on. New information was being released weekly, leading up to the DoJ decision to withdraw the prosecution. The reasons given are all salient, no evidence exists to trigger Sullivans request for another hearing.

      2. While reversing it would have saved Flynn, what about the next guy in that situation?

        Suppose he doesn’t have the ability to mount an appeal after the trial judge sets him/her self as a prosecutor and judge.

        1. The next guy will be in even better shape, because the DC Circuit’s opinion would announce a very narrow power for trial courts with respect to Rule 48(a) motions.

        2. If the next guy doesn’t have the ability to appeal (and it’s a little difficult to envision how that would be possible), I’m not sure how this disposition is of much utility either.

      3. Why should a wrongly prosecuted and innocent defendant have to wait?

        1. Why should anyone have to wait? Scott Peterson is right now on California’s death row. His appeal will be pending for several years. One of his claims is that he is actually innocent.

          If he wins on that claim, it sucks that he was held in prison for that time. Big time. But that’s how the system works. You get an adverse ruling as a criminal defendant and appeal it. The trial court lets in entirely inadmissible evidence? You wait for the jury to convict you and then appeal. The trial court fails to dismiss a charge? You wait and appeal. The trial court misinstructs? You wait and appeal.

          That’s just the normal operation of the appellate courts.

          1. Has the government agreed with Mr Peterson’s claim and asked the court to dismiss the indictment ?

          2. “That’s just the normal operation of the appellate courts.”

            14 years. And his state direct appeal is not finished.

            Very bad, nothing “normal” about it.

    2. I don’t think that’s why the issued the mandamus, I think it was because Sullivan appointed an amicus to basically privately prosecute Flynn.

      If Sullivan just wanted to call the DOJ, and Flynn on the carpet and rip them to shreds they would have let him. But a month after Ginsburg wrote a 9-0 decision ripping the 9th for appointing an amicus to make arguments that they wanted to hear, that neither party was making, and calling it “beyond the pale”, thats why they thought Sullivan was going to far.

      1. That is a major part of the reason I think.

        I think Sullivan also trying to introduce new charges (perjury) was also a big part.

      2. I don’t think that’s why the issued the mandamus, I think it was because Sullivan appointed an amicus to basically privately prosecute Flynn.

        The word “basically” is doing all the work here, and it should be replaced by an illegal immigrant because that work is something that no American should do. He appointed an amicus to argue a motion. Not to “prosecute” anyone.

        But a month after Ginsburg wrote a 9-0 decision ripping the 9th for appointing an amicus to make arguments that they wanted to hear, that neither party was making, and calling it “beyond the pale”,

        Sigh. I know someone at The Federalist must have thought this was a brilliant argument. It wasn’t. The Supreme Court appoints amici to make arguments that neither party was making all the time. It just did so this week. (Well, it just issued a decision this week in a case in which it had done that.) The entire purpose of an amicus is to make arguments that neither party is making.

        Where the 9th circuit went off the rails, and was called out by Ginsburg, was in using an amicus to raise issues that neither party had raised.

        That has nothing to do with what happened here, though; here, the DOJ — one of the parties — had raised the issue.

        1. Where the 9th circuit went off the rails, and was called out by Ginsburg, was in using an amicus to raise issues that neither party had raised.

          Like, for example, the issue of charging Flynn with perjury based on his original guilty plea? Which party had raised that?

          1. There wasn’t an amicus on that issue, chief.

            1. Well, Sullivan did ask Gleeson to opine on that, but (a) Gleeson recommended against contempt proceedings for Flynn’s perjury, and (b) contempt is something that courts can and do raise sua sponte, because it affects the courts’ interests, not the prosecutions’.

  6. Luttig criticizes the DC Circuit for bungling mandamus procedure. Maybe he’s right about that, and maybe he’s not. But he agrees that the DC Circuit got the substance correct: “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.”

    Nevertheless, Luttig opines: “Knowingly or not, the Court of Appeals simply appears to have bungled perhaps the most consequential political constitutional case in recent memory.” This is fatally inconsistent with Luttig’s opinion on the constitutional issues in the case–the balance of power between Executive and Judiciary–which he believes were correctly decided.

    Thus, Luttig disagrees with his own statement that the DC Circuit mishandled a “constitutional case.” At most, he believes the court mishandled run-of-the-mill procedural mandamus issues.

    1. The most consequential question seems to me to be whether a judge can go off on a fishing expedition after the DoJ has decided to end the prosecution.

      1. Whatever the libs have on Chief Justice Roberts, Luttig must have been involved, too.

        That’s the only reasonable explanation for any of this.

  7. Let’s say I file a case against you for negligently causing an automobile accident. I plead all the elements of state law negligent. Only problem is, you weren’t actually driving the other car.

    Under state law, you will be entitled to a summary judgment once you establish that. However, instead, you try to introduce that fact as part of a motion to dismiss, even though it isn’t judicially noticeable and is not admissible evidence in that proceeding.

    If the judge grants your motion to dismiss, she will have bungled the case. Even though you were going to win anyway. Correct procedure is still important.

    1. In your hypo, have you agreed that I wasn’t driving the other car and filed a motion with the court saying you’re dropping your case ?

  8. I swear, if I strain my eyes rolling them, you’re hearing from my attorney.

    1. Class action lawsuit.

  9. 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.

    Wouldn’t the job of rebuttal normally fall to the prosecutor? I must be missing something. How can that be constitutionally compelling given the history of this case? More the opposite.

  10. What a liberal, that Luttig!

    1. That’s not funny. Just look at how “Blue June” Roberts is betraying real Americans.

  11. I agree with Judge Luttig that mandamus in this case was improper. However, I disagree about there being no point pursuing the matter further.

    Precisely because of the politically sensitive nature of the case, the courts should be careful to act in a regular manner, giving the matter a fair hearing with evidence and arguments put on the record.

    For this reason, I would suggest that the en banc court dismiss the writ of mandamus, with an opinion explaining that the matter does not meet the standards for mandamus. There is a potential genuine dispute about both the facts and the relevant legal standards that the trial judge should decide in the first hearing, and any errors can be corrected following an intial decision by the district court, in the usual course. I would then remand to the district court and have the district court hold the hearing and evidence make a decision. If it is erroneous, the court of appeals can correct it on appeal.

    1. Given the uncertainty about whether Mr. Flynn will ever be prosecuted, he is certainly entitled to bail. And perhaps he is entitled to somewhat lenient bail conditions so long as there are guarantees he won’t flee. I think this adequately protects his rights. He pled guilty under oath. His word matters. He is not constitutuonally entitled to have the charges against him dismissed.

      1. Dismissal without prejudice.

        A fresh set of eyes on it in seven months.

      2. Do you think that Flynn is in jail?

        He was released on his own recognizance at his initial appearanceIn. 2017, with a requirement to report by phone weekly to pretrial services.

      3. That’s all fine. What does Flynn do when Sullivan refuses to rule on the motions before him? He still has two motions he refuses to act on, now a third directive from a superior court to dismiss the case.
        You are asking that the system should be allowed to act, and appeal the rulings. Sullivan is short circuiting the normal flow, by not ruling on motions before him.
        There is a defense motion to reverse guilty plea, facts support the motion. Sullivan does not rule. Motion by the govt to dismiss the case. Sullivan calls for amici. Refuses to rule. Mandamus directs Sullivan to dismiss, Sullivan refuses.
        When does the law kick in and protect the innocent?

        1. There are no motions that Sullivan is refusing to act on. Why do you lie?

          1. How did Sullivan rule on the defense motion to dismiss the case. What day did that ruling hit the docket?

            1. The defense motion to dismiss? Do you mean the prosecution’s motion to dismiss? (The defense couldn’t move to dismiss because the defendant has pleaded guilty.) Judge Sullivan hasn’t ruled on it yet; he set a hearing on the issue for July 16. Setting a hearing on a motion seems pretty close to the opposite of refusing to rule on it.

  12. The real problem has nothing to do with the Flynn case. The problem is the criminal procedure rule that states that the prosecution can be dismissed “upon leave of the court.” The prosecutorial decision belongs solely to the administrative branch. The rule attempts to bootstrap the judiciary into a prosecutorial role and should be eliminated. If there’s a constitutional issue here it isn’t DOJ’s dismissal motion, it’s that the rule itself violates the separation of powers.

    1. And I should add, by what standard that doesn’t violate the separation of powers should a court deny the government’s motion to dismiss a prosecution when the defendant concurs in the dismissal?

  13. 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

    Being a mere human, and not a lawyer, this is where the magic legal dust becomes mysterious. The Executive branch’s rights to determine whether to continue a prosecution is a major league amour propre thing vis a vis an interfering Judge. But the accused’s right to have his case dismissed when the prosecutor has himself moved to dismiss it is …. meh ?

    1. Luttig is talking about his right to an immediate dismissal. That is to say, while the government perhaps has some interest in avoiding a hearing where the judge will probe its deliberative processes, it’s hard to see how doing so will prejudice Flynn.

      1. Sullivan probing of the Govt dismissal deliberations was very limited to the FBI & DOJ misconduct and instead was focused on additional crimes to charge flynn and whether there was WH pressure for dismissal.

        Sullivan comments indicated that he had already disregarded the any FBI misconduct and fbi notes indicating that no crimes were committed.

  14. Lord, this is not going well for the Flynn supporters. Looks like the arguments printed in The Federalist aren’t a great survey of the actual law.

    1. Judge Rao’s opinion and the DC Circuit dispensed with this case. Why is it even a controversy? Me? I gave Judge Sullivan the benefit of the doubt. Look, he has been a jurist for over 30 years. He gets to make his case, in my mind. To me, Judge Sullivan gets that chance simply out of respect for the robe he wears, and the decades of service.

      Ok fine, he made his case. The DC circuit said “Nope”. To me, this chapter is over.

      1. The controversy is that the opinion is being criticized by conservative folks as well as liberals,

        It probably won’t change anything, but as you can see above there’s a lot of people who are wrong about basic facts of the judicial system not just the opinion itself.

        There is some utility in pointing out the truth. To your own self, if not to those who did not reason themselves into the position from which they attempt to argue.

    2. aren’t a great survey of the actual law.
      And the counter arguments aren’t a great survey of the facts.

      “When the facts aren’t on your side, hammer the table and cite the law.”
      This is the whole problem, Sullivan is hiding his prejudice, behind “that law”, ignoring the facts.

      1. Another option is to blind yourself with outrage so you don’t need to deal with the comments, I guess.

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