So the Flynn decision came out this morning, and while I had a chance to briefly comment on it and put it in its proper context, I have not yet had a chance to analyze the ruling in detail. Until now.*
This passage from Judge Rao’s opinion encapsulates everything that is wrong with the decision:
The government’s representations about the insufficiency of the evidence are entitled to a “presumption of regularity … in the absence of clear evidence to the contrary.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quotation marks omitted). On the record before the district court, there is no clear evidence contrary to the government’s representations. The justifications the district court offers in support of further inquiry — for instance, that only the U.S. Attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions — are insufficient to rebut the presumption of regularity to which the government is entitled.
There is a double sleight of hand going on here, and I am happy to explain it. I will call the first sleight of hand the “Shifting Standard” move, because the standards discussed by Judge Rao are the standards to deny a Rule 48 motion, not to hold a hearing about one. The second move is very, very important. I call it the Dishonest Two-Step:
Step 1: You do not get to put on evidence.
Step 2: I rule against you because you have put on no evidence.
Remember that because I will keep coming back to it. This is what is happening when Judge Rao tells you, with a straight face, that “[o]n the record before the district court” there is “no clear evidence to contradict the government’s representations.” To anyone with a brain and an attention span of any reasonable length, that assertion ignores the fact that the district court had no chance to develop any sort of record at all.
Through her laughable opinion, Rao uses both of these deceptive moves — the Shifting Standard move and the Dishonest Two-Step. Rao consistently writes the opinion as if Judge Sullivan had heard and denied the motion and she was merely applying standards from case law that go to the question of whether the denial should be upheld. (The Shifting Standard move.) As she engages in this trickery, Judge Rao blinks her eyes innocently and says “well, gee, there just isn’t enough evidence here to meet the standard!” knowing all the while that she has prevented the hearing from happening and prevented any evidence from being put in the record. (The Dishonest Two-Step.)
Before I get further into the weeds and risk losing the reader’s attention, I want to make the point that there is a nasty precedent for the Orwellian Dishonest Two-Step: “We will decree that no evidence will be presented, and then rule against you because no evidence was presented.” If the Dishonest Two-Step sounds familiar, it’s what the GOP did in Trump’s impeachment. They voted against hearing from witnesses and the issuance of subpoenas, and then voted that no evidence had been presented. They voted against hearing from John Bolton, who had firsthand knowledge that the President tied aid to personal favors … and then voted to acquit because there was no evidence that anyone had firsthand knowledge that the President tied aid to personal favors.
Indeed, we saw this Dishonest Two-Step attitude on display just today, when two Department of Justice attorneys testified to shocking political interference with decisionmaking over antitrust enforcement and the sentencing recommendation for a criminal pal of the President. Jim Jordan, eternally bereft of both jackets and shame, pressed Roger Stone prosecutor Aaron Zelinsky as to whether he had ever spoken directly to Bill Barr or other high-level DoJ officials about their demands that he forego usual DoJ practices, in order to benefit Stone. Zelinsky replied that he had asked to speak with these officials but had been refused. Jordan then compared his lack of knowledge to that of the witnesses from the impeachment! (He was right, but for the wrong reasons!)
Zelinsky was also asked, by Jordan and others, about whether he could justify certain actions taken by the Special Counsel — actions that I suspect he could easily justify, but (he explained) he had not been cleared by DoJ to talk about. His inability to talk was treated as an admission of guilt by every Republican lawmaker to employ the tactic.
Now, it’s time for an old-fashioned
fisting fisking. Watch as I quote yet another passage from Rao’s opinion where she 1) applies the Shifting Standard move (applying the standard for ruling on a dismissal to a decision about whether a hearing can take place); 2) applies the Dishonest Two-Step, and 3) (bonus dishonesty): mischaracterizes the dissent’s argument (this part will take even more space to show). Whee! Let’s get started!
[T]he dissent glosses over the presumption of regularity to which the Executive is entitled in the exercise of its prosecutorial discretion. While the district court is not a “rubber stamp” when considering whether to grant “leave of court” under Rule 48, Ammidown, 497 F.2d at 622, any judicial inquiry is strictly bounded by the presumption of regularity, and the presumption is overcome only in extraordinary cases and by “clear evidence to the contrary,” Armstrong, 517 U.S. at 464.
Oh, Judge Rao, we notice the Shifting Standard move! The language bolded above to the effect that “any judicial inquiry is strictly bounded by the presumption of regularity, and the presumption is overcome only in extraordinary cases and by “clear evidence to the contrary” has nothing to do with whether the court can hold a hearing. So it’s another example of the Shifting Standard move I noted above: Rao applying “the standard for ruling on a dismissal to a decision about whether a hearing can take place.” If you doubt me, read the Armstrong case and correct me.
The dissent fundamentally misstates our opinion by insisting we hold “a district court may not even consider [a Rule 48 motion] before giving its ‘leave.’”
ORLY? Well, put a pin in that.
Perhaps that is to distract from the simple fact that neither the dissent nor the district judge has identified a legitimate basis to rebut the presumption here. Our precedents emphatically leave prosecutorial charging decisions to the Executive Branch and hold that a court may scrutinize a motion to dismiss only on the extraordinary showing of harassment of the defendant or malfeasance such as bribery — neither of which is manifest in the record before the district court.
Well done, Judge Rao! Two fallacies in a single sentence. First there’s the Shifting Standard move again: “and hold that a court may scrutinize a motion to dismiss only on the extraordinary showing of harassment of the defendant or malfeasance such as bribery.” Um, [coughs into hand] bullshit. Not a single one of the cases you cite says that a court may “scrutinize” (read: a court may hold a hearing concerning the issue of whether to grant) a motion to dismiss “only on the extraordinary showing of harassment of the defendant or malfeasance such as bribery.” The cases you cite allowed the district judge to hold a hearing and merely found that a motion to dismiss could not be granted absent showings of the sort you describe.
And immediately after this, in the same sentence, you use the Dishonest Two-Step, stating “neither of which is manifest in the record before the district court” …
… because, of course, you have prevented the district court from developing any sort of record at all. It’s … it’s kind of like you held that a district court may not even consider a Rule 48 motion before giving its leave. (Remember? That’s the part we put a pin in.)
Now we come to a more complicated but equally dishonest argument. Judge Rao says:
The dissent argues the presumption is overcome in this case because of the government’s “complete reversal” in moving to dismiss charges it previously supported. Dissenting Op. 17–18. Yet the government necessarily reverses its position whenever it moves to dismiss charges under Rule 48(a), and so the reversal standing alone cannot provide the irregularity. Given the absence of any legitimate basis to question the presumption of regularity, there is no justification to appoint a private citizen to oppose the government’s motion to dismiss Flynn’s prosecution.
Let’s actually read the part of the dissent referred to by the bolded language. Keep in mind that, according to Judge Rao, the dissent’s reference to the government’s “complete reversal” supposedly is an effort by the dissent to show that the presumption of regularity has been overcome such that the district judge is allowed to hold a hearing. In other words, according to Judge Rao, the dissent accepts her (totally made up by her) claim that, in order to even hold a hearing, a district judge must come up with evidence that overcomes the presumption of regularity. And here (she says), the dissent’s claim is that this evidence comes in the form of the government’s reversal. Now read the actual language of the dissent and see if it actually says what Judge Rao has claimed it says:
The majority opinion effectively transforms the presumption of regularity into an impenetrable shield. In 2017, the then-Acting Attorney General told the Vice President that Flynn’s false statements “posed a potential compromise situation for Flynn” with the Russians, Gov’t Mot. Dismiss Crim. Info. Ex. 3 at 8, No. 1:17-cr-232, ECF No. 198-4 (May 7, 2020), and just a few months ago, the prosecution said that Flynn’s false statements to the FBI “went to the heart” of a valid counterintelligence inquiry and “were absolutely material,” Gov’t Surreply Mot. Compel Produc. Brady Mat. at 10–11,No.1:17-cr-232, ECF No. 132 (Nov.1,2019). Now, in a complete reversal, the Government says none of this is true. Gov’t Mot. Dismiss Crim. Info. at 13–16, No. 1:17-cr- 232, ECF No. 198. The Government doubles down by asserting in its motion to dismiss that Flynn’s statements could not have been “material” within the meaning of 18 U.S.C. § 1001 because the FBI had no grounds for any “viable” investigation of Flynn at the time he made those statements, id. at 13, even though that contention appears squarely belied by our precedent, see United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010) (“We . . . hold a statement is material if it has a natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the agency to which it was addressed.”) (emphasis added); United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (Scalia, J.) (“A lie influencing the possibility that an investigation might commence stands in no better posture under § 1001 than a lie distorting an investigation already in progress.”). This is no mere about-face; it is more akin to turning around an aircraft carrier.
I do not read this as a concession that an about-face is necessary to justify a mere hearing. I read it as Judge Wilkins saying that Judge Rao has taken the presumption of regularity and, by preventing a hearing from taking place, turned that presumption into an “impenetrable shield” that prevents the court from even inquiring as to why the dismissal happened. Oh, and by the way, Judge Wilkins says, this is hardly a minor change in position, and let me explain in detail why.
Judge Rao’s opinion is an absolute travesty — a collection of dishonest rhetorical moves that are unworthy of an Article III judge sitting on one of the most prestigious federal appellate courts in the nation. Judge Rao and Judge Henderson should be ashamed of themselves, and I hope they get slapped down by the en banc court as they so richly deserve to be.
*I first learned of the decision at 7:11 a.m. I had to shower, dress, meditate, pray, let out the dogs, feed the dogs, make breakfast, and blog my reaction by 8:30 a.m. (Yes, I have a morning routine. No, it doesn’t get disturbed by this sort of thing.) Under these circumstances, I think I did a pretty good job. I don’t see anyone in the comments to my first post who criticized me for not taking the decision apart in detail. After all, my views on this whole affair are a matter of public record and I have written about them many times before today. Anyone who made such a complaint would be a complete and utter jackass, I think we can all agree!
UPDATE: If you’re obsessed with the “separation of powers” argument, read this.