What To Watch For In Michael Flynn’s Case On Tuesday

On Tuesday at 9:30 am ET, Michael Flynn is back in court—or at least his case is. Here’s what to listen for.

Many readers will recall that after Flynn pleaded guilty (twice) to the federal crime of lying to investigators, the Justice Department abruptly announced that it intended to drop the charges against him.  Not so fast, said the district judge presiding over the case.  Dropping charges requires “leave of court,” and Judge Emmet Sullivan announced he’d want to receive briefing from a court-appointed amicus curiae (or “friend of the court”) and to hold a hearing before deciding whether to grant such leave.  Before the briefing could be completed or the hearing held, Flynn’s lawyers—though not the Justice Department—ran to the court of appeals seeking an emergency form of intervention called “mandamus relief” to block Judge Sullivan from even understanding—and ensuring the public can understand—what had occurred at the Justice Department to cause such an about-face.  The Department then chimed in to support Flynn.  And, much to the astonishment of many close observers, the three-judge panel that initially heard the case agreed with Flynn in a split decision.

But that decision is now gone, wiped away by the D.C. Circuit’s decision to rehear the case en banc, in this instance in front of ten judges. Here are key points to listen for during Tuesday’s oral argument:

(1) Premature or timely review

Do the judges think that an appeals court needs to take the unusual step of intervening now, on the emergency posture of a mandamus petition, to prevent the district court from proceeding, or can any potential concerns with how the district court handles the case be addressed later, on ordinary appeal?  The en banc court could dispose of the case at this stage on narrow grounds: that emergency relief is uncalled for, partly because normal appellate review is available later.  The D.C. Circuit judges showed their interest in exploring this central issue with their order to rehear the case en banc, which included direction to the lawyers to be prepared to argue on Tuesday about whether there are adequate alternative means to attain appropriate relief from what the district court might do.

(2) The district court’s powers

What do the judges think “leave of court” means?  The district judge, by seeking briefing and calling a hearing, indicated that, at a minimum, that language in the Federal Rules of Criminal Procedure must mean that “federal judges are not supposed to be potted plants,” as coauthors and I phrased it in an earlier piece.  Expect the judges to test, on Tuesday, theories of why this term – leave of court — was deliberately included in the federal rules if a district judge in fact can do nothing more than dismiss charges once asked to do so by the Justice Department—the position being advanced by Flynn and the Trump DOJ. Will the judges find a narrow space for district courts to seek briefing and a hearing, but too narrow to fit what Sullivan ordered in Flynn’s case?

(3) Flynn’s charges

How much do the judges need to say about the particularities of the Flynn case and the nature of further proceedings in the district court?  As indicated above, if a majority of judges is inclined to deny Flynn’s request for emergency relief, that majority could simply stop there—without specifying anything further about what the district judge should or should not do in receiving briefing that’s been paused. The ball would simply be back in the district court to hold a now-postponed hearing.  But a majority could say more if it so chose—even to the point of specifying what it thinks the nature of any hearing should be in the district court and how the district judge should decide whether to grant the government’s request to dismiss the charges, including whether to do so with or without prejudice.  (Neal Katyal and I previously have urged any potential dismissal to be without prejudice so that a future Justice Department at least could take another look at the case.)

(4) Judge Sullivan’s courtroom

Do the judges think that, even if they allow further proceedings in the district court rather than ordering immediate dismissal of the charges, the case should be reassigned to a different district judge?  The appellate judges are interested in considering this option, as evidenced by another order they issued asking the lawyers to be prepared to address this topic.  The logic might be that, with the judge having been forced—albeit by Flynn’s lawyers—into the unusual posture of having to become effectively a party in the adversarial mandamus proceedings, even to the point of being represented by counsel, assuming an impartial role back in the district court may be difficult.

The Flynn case has become about much more than Michael Flynn.  It’s become, as Katyal and I explained, the most concrete instantiation of President Donald Trump and Attorney General William Barr’s assault on federal law enforcement and attempt to portray it as the villain.  What’s more, the Flynn episode has become emblematic of the claim Trump and Barr insist on making repeatedly that somehow federal law enforcement acted improperly in 2016 when it tried to investigate counterintelligence threats to the United States that, ultimately, proved all too real.  But, on Tuesday, all of that will be merely the backdrop. The spotlight will be on the law.  And it’s worth Americans listening carefully for what ten judges will be saying as they grapple with what particular areas of law that intersect in this unusual matter mean for the next steps in the Flynn case. 

About the Author(s)

Joshua Geltzer

Executive Editor. Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Follow him on Twitter (@jgeltzer).