More briefs were filed in the Flynn case today.
First, we have Judge Sullivan’s response brief, which hammers home just how unbelievably radical it would be for the panel to grant this writ even though Judge Sullivan has decided nothing (except inviting amicus briefs, as the D.C. Circuit itself did, and issuing an (IMO) ill-advised OSC re contempt).
The rule calls for leave of court. That’s a provision that was added by the U.S. Supreme Court when the rule was promulgated. Leave of court means the court has a role in that decision. Exactly what the judge’s authority is, is an open question — but that he has *some* authority is beyond rational dispute.
And yet it’s being disputed.
Honestly, it’s almost like being in the Upside Down that we’re seeing such a ridiculous writ petition treated with this level of seriousness. I don’t blame Judge Sullivan or his lawyer for doing so; the panel hearing the petition has a track record for taking absurd Trumpy positions far more seriously than they ought to. But it’s frustrating because the correct answer is clear and obvious: the writ should be denied and Judge Sullivan should be allowed to proceed with the hearing.
Were Judge Sullivan to deny the Government’s motion, and Flynn to appeal, the case would be far more difficult and far closer. But this is not a close call. Not even remotely. The only reason it’s being treated as though it might be is because of the appellate judges involved.
I don’t like making predictions with such erratic jurists in control of the outcome. Were I to hazard any sort of prediction, it would be that the en banc court would take up any decision to grant the motion, while the full court would certainly take no action if the panel properly denies relief. But really, I’m out of the prediction business — so don’t take that as a prediction!
We also have a fiery amicus brief in the trial court from Judge Gleeson, the fella whom Judge Sullivan appointed to make the case against the Government’s position. Here’s the passage that is the most attention-getting:
The Court should deny leave because there is clear evidence of a gross abuse of prosecutorial power. Rule 48(a) was designed to “guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” In other words, the rule empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals. … That is what has happened here. The Government has engaged in highly irregular conduct to benefit a political ally of the President. The facts of this case overcome the presumption of regularity. The Court should therefore deny the Government’s motion to dismiss, adjudicate any remaining motions, and then sentence the Defendant.
Yowch! That is a stinging accusation. And I judge it to be entirely accurate. The main reason is because their stated reason for the dismissal request — a sudden about-face on the issue of the statements’ materiality — is laughably incredible:
That is about as straightforward a case of materiality as a prosecutor, court, or jury will ever see. In asserting otherwise, the Government struggles mightily to argue that Flynn’s false statements neither affected nor could have affected the FBI’s investigation of his and his colleagues’ potential ties to the Russian government. Even taken on their terms, these contortions are riddled with legal and factual errors (and are contradicted by the Government’s position in other cases). But more fundamentally, under the governing law — as stated by the D.C. Circuit, this Court in this very case, the Government’s prior briefs in this case, and the Government’s briefs in many other recent cases — the facts on which the Government relies to undermine materiality are irrelevant.
They are changing their approach to the law for one person and one person only: a crony of the President. It’s about a corrupt a move as I have seen from DoJ as I can remember, and only the ignorant, the hopelessly partisan, or (most often) people sharing both characteristics are completely comfortable with it. The rest of us are sickened, but will be interested to see how arguments go on Friday.