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Michael Flynn Case Will Proceed After Limited, Cautionary Decision From Federal Appeals Court

By Joseph Fawbush, Esq. on September 01, 2020 | Last updated on August 10, 2021

People have argued throughout the entire Michael Flynn saga that federal law enforcement and judges have overstepped their legal authority. First, Trump supporters argued the FBI overstepped by setting up a trap to catch Michael Flynn lying. Then, liberals argued Attorney General William Barr continued to turn the Justice Department into a political tool by dropping charges against a defendant who had already pled guilty. Conservatives again became offended when District Court Judge Emmet Sullivan, who refused to drop the case, instead appointed an amicus curiae to argue the government's case for it. Then it was the liberals turn again, accusing federal appeals court judge and Trump appointee Neomi Rao of overstepping her own authority in condemning Judge Sullivan for overstepping his by issuing a writ of mandamus to overturn a decision that hadn't even yet been made. Judge Rao failed to recuse herself despite serving in the Trump Administration, unlike her colleague Gregory Katsas. 

At this point you can (and probably do) have opinions on whether Michael Flynn colluded with Russians, was a good pick for National Security Advisor, and whether Attorney General Barr is transforming the Department of Justice into a political weapon. However, none of those issues were before the D.C. Circuit.

Enough is enough, the second most powerful court in the country seemed to be saying. We, at least, are going to stay in our lane. The full circuit reversed Judge Rao's earlier, surprising decision, and held that it was not the time or place to issue a writ of mandamus and insert themselves into this highly charged political case. The mild and limited decision seems geared to throw a bucket of cold water on the proceedings. 

A Writ of Mandamus Is Unnecessary at This Stage

In an 8-2 decision, the U.S. Court of Appeals for the D.C. Circuit held that a writ of mandamus was inappropriate in these circumstances. The only two justices to dissent were the ones who originally decided in favor of Flynn and the government.

A writ is only appropriate when there are no other legal options, the majority wrote. In this case, the district court judge had not yet ruled on the motion to dismiss – he had simply assigned an amicus. As Chief Judge Sri Srinivasan wrote, “[t]ry as they might, neither Petitioner, nor the Government, nor the dissent has identified a single instance where any court of appeals has granted the writ to decide a trial court motion without first giving the district court an opportunity to make a decision—especially where the objections raised on mandamus were never raised to the district court."

Put simply, a writ of mandamus to force the judge to drop the case is inappropriate at this stage since the district court judge has not yet ruled whether he would grant the government's motion to dismiss. The only question before the D.C. Court of Appeals, then, was if the judge clearly violated any separation of powers issues by appointing an amicus curiae. The majority wrote that they had “no trouble" in deciding a writ of mandamus is inappropriate at this stage, “because precedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances."

A Cautionary Note

However, the full circuit did not foreclose the possibility of forcing Judge Sullivan to drop the case should he rule against the government on remand. In a concurrence, Judge Griffith, a longtime member of the court, stressed the limited nature of the holding, writing that “we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made." Judge Griffith wrote mainly to address anticipated charges of this case being decided on political grounds.

The D.C. Circuit also refused to assign the case to a new judge, writing that there was no evidence the judge could not exercise impartiality in the case.

Not Overstepping Authority

Judge Elaine Rao, a Trump appointee, framed the majority's decision as a “wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take." In this case, Judge Rao held, “the circumstances in Flynn's case are nothing if not extraordinary" and therefore a writ is appropriate.

Nonetheless, the full appeals court stuck to the traditional approach of not deciding legal issues it doesn't have to. 

While it is a highly political case, the decision itself is not extraordinary. Nor does this mean the Flynn case is certain, or even likely, to proceed. Judge Sullivan, reading between the lines, may grant the government's motion to dismiss. Should he fail to do so, the D.C. Circuit Court of Appeals may find itself forced to weigh in again.

For now, however, the federal appeals court refused to overstep its own authority by issuing a writ of mandamus.

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