Legal Experts 'Stunned' by D.C. Circuit's Michael Flynn Decision, Call for Review by Full Court
In a surprising turn of events for those who listened to the oral arguments in the matter, the D.C. Circuit Court of Appeals on Wednesday ruled that the judge presiding over Michael Flynn’s criminal trial cannot refuse to accept the Justice Department’s motion to dismiss the case against the president’s former National Security Advisor. The decision left legal experts “stunned,” with several arguing that the decision ordering the district court to grant Flynn’s writ of mandamus before Judge Emmet Sullivan even ruled on the motion to dismiss sets a problematic precedent for future cases.
The crux of the controversy surrounds Attorney General William Barr’s decision to direct subordinates to drop the case against Flynn despite the retired lieutenant general having twice pleaded guilty to lying to the FBI. While Flynn was awaiting sentencing, he got new lawyers and moved to withdraw his plea. Following the DOJ’s remarkable reversal, Judge Sullivan did not immediately concede the issue. Instead, citing language from the Federal Rules of Criminal Procedure requiring “leave of court” to dismiss a case at such a late stage, he appointed a former federal judge as amicus curiae to present arguments as to why the court should not grant the DOJ’s motion.
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Legal experts were swift to weigh in on the matter, with the vast majority saying that the decision can and very likely will be heard by the full slate of eleven (soon possibly to be twelve) active judges on the circuit.
“I am stunned DC Circuit has ordered Judge Sullivan to dismiss Flynn case. What happened after hearing when judges seemed so skeptical?” University of Michigan law professor and former U.S. Attorney Barbara McQuade said, referencing the poor reviews aimed at the DOJ and Flynn’s legal team following oral arguments on the issue earlier this month.
“Full court could and should review this decision en banc. Even if court is right on merits, mandamus is wrong avenue and creates bad precedent,” McQuade added.
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