Trump-Friendly Panel Weighing DOJ Request to Dismiss Michael Flynn Case

(Bloomberg) -- The Justice Department is likely to find a receptive audience when an appeals court in Washington hears arguments Friday about whether to dismiss the criminal case against former National Security Advisor Michael Flynn.

Two of the three federal judges who will decide the case are Republican appointees who have previously sided with President Donald Trump against Congressional oversight. The trip to their court is the latest twist in a multiyear saga that has included two guilty pleas by Flynn, cooperation with investigators who would later accuse him of lying, and a judge’s refusal to immediately grant the surprise U.S. request to drop the case.

By agreeing with the government that U.S. District Judge Emmet Sullivan must grant the government’s May 7 dismissal request, the appeals court could end a prosecution that Trump and his conservative allies have attacked as corrupt.

If it rules the other way, though, the panel would be essentially authorizing the judge to investigate whether the Justice Department under Attorney General William Barr is seeking the dismissal chiefly to protect a political ally of the president.

That’s exactly what’s happening in the case, a retired federal judge said Wednesday in a brief opposing dismissal. John Gleeson, who was asked by Sullivan to weigh in on the matter, said courts must act to protect “the integrity of their own proceedings from prosecutors who undertake corrupt politically motivated dismissals.”

A ruling for the Justice Department and Flynn would be “extraordinary,” said Harry Sandick, a former federal prosecutor who is not involved in the case, because the legal bar for the type of order they are seeking -- a writ of mandamus overruling Sullivan and throwing out the case -- is normally so high that most petitions are denied without a hearing. But he said there were signs that the composition of the panel favored the administration.

“The fact that the court is having argument suggests that they are giving strong consideration to granting the petition,” Sandick said.

Neomi Rao, one of the appellate judges hearing the Flynn case, was appointed by Trump and previously served in his administration. George H.W. Bush appointee Karen Henderson backed Trump against House Democrats in two major rulings in February. The third judge on the panel, Robert Wilkins, was nominated by President Barack Obama.

The government’s request to drop the case against Flynn, who previously pleaded guilty to lying to Federal Bureau of Investigation agents about his December 2016 contacts with the Russian ambassador, came amid growing criticism from conservative commentators, who argued the former Army general was the victim of a conspiracy by former Obama administration officials to sabotage members of the Trump White House. The president, who fired Flynn in 2017, adopted this view in many of his tweets.

The Justice Department said Flynn’s lies were not “material” to the Russia investigation and that the FBI agents didn’t have a proper “investigative purpose” in interviewing Flynn. Sullivan, a Bill Clinton appointee, declined to grant the request immediately, began accepting outside briefs and appointed Gleeson.

“The Constitution vests in the executive branch the power to decide when -- and when not -- to prosecute potential crimes,” U.S. Solicitor General Noel Francisco said in the Justice Department’s appeal brief arguing that Sullivan lacks the authority to examine the government’s motives.

Sullivan asked the court not to “short-circuit” his inquiry. He said the circumstances of the Justice Department’s “unprecedented” request gave him a plausible reason to question the “bona fides” of the government’s position.

Rao, who worked in the White House Office of Management and Budget before Trump nominated her to the federal appeals bench in 2018, has proven to be a strong ally to the president. In October 2019, she dissented from a majority backing the right of House Democrats to subpoena Trump’s financial records, saying allegations of illegal conduct by the president could only be investigated by Congress through the impeachment process.

Henderson was part of a majority that ruled on Feb. 28 that courts have no authority to resolve disputes between the legislative and executive branches and could therefore not enforce a Congressional subpoena for the testimony of White House officials.

Earlier in February, she also joined a unanimous opinion that said members of Congress lacked standing to sue Trump for violating the Constitution’s so-called Emoluments Clauses, which bar presidents from receiving gifts from foreign governments, through his ownership of a Washington hotel patronized by diplomats.

The Feb. 28 subpoena decision was later overturned by a larger “en banc” panel of appellate judges. That could happen again if Henderson and Rao both side with the president on the Flynn case, as judges named by Democratic presidents still form of a majority of the Washington federal appeals bench.

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