Neomi Rao rides again.
Judge Neomi Rao’s opinion in In re: Michael T. Flynn is simply astonishing.
It involves the Justice Department’s surprising decision to drop charges against one of President Trump’s former top aides — nearly three years after that aide plead guilty to lying to the FBI. And Rao’s opinion takes extraordinary liberties with the law.
Her opinion asserts jurisdiction over a case that Rao’s court has no right to hear. It relies on a rarely invoked process that the Supreme Court described as a “drastic and extraordinary remedy” that’s “reserved for really extraordinary causes.” And it keeps a trial judge from hearing arguments that Rao and one of her Republican colleagues, Judge Karen Henderson, apparently believe that the trial judge shouldn’t even be allowed to ponder before making a decision.
Nor is Rao’s opinion in Flynn out of character for the recently appointed jurist. In less than two years on the bench, Rao has repeatedly handed down opinions benefiting Trump and his aides that rely on highly dubious legal reasoning.
The only saving grace of the court’s decision in Flynn is that Rao and Henderson are far-right outliers on the United States Court of Appeals for the District of Columbia. There is a chance that the full court — which has the power to reconsider Rao’s opinion even if no party requests such a reconsideration — will toss Rao’s opinion in the trash.
The case involves the Trump Justice Department’s decision to drop charges against a former Trump aide
The case arises out of the Justice Department’s abrupt decision to abandon its successful prosecution of Michael Flynn, a former general who briefly served as President’s Trump’s national security adviser. In 2017, Flynn plead guilty to lying to the FBI regarding his contacts with Russia’s ambassador to the United States.
Nearly three years later, however, the Justice Department decided to drop the charges against the former Trump aide. Though the DOJ admits that Flynn lied to investigators, the Justice Department now claims that these lies could not have “conceivably ‘influenced’ an investigation that had neither legitimate or counterintelligence or criminal purpose.”
Notably, the Justice Department’s court filing seeking to drop the charges is signed only by a single political appointee. Typically, such filings are also signed by career Justice Department attorneys with no loyalty to a particular administration or party.
Brandon Van Grack, the lead prosecutor against Flynn, withdrew from the case shortly before the Justice Department sided with Flynn.
The trial judge wants to hear a full range of arguments before disposing of Flynn’s case
It is highly unusual for prosecutors to drop charges years after obtaining a guilty plea. Moreover, the Federal Rules of Criminal Procedure only permit the government to dismiss a prosecution “with leave of court.” So Judge Emmet Sullivan, the trial judge presiding over this case, decided to hold a hearing next month to address how he should proceed — and to also consider whether Flynn should be held in contempt for perjury, a charge that a court may pursue without the consent of the Justice Department.
Because the Justice Department abandoned its prosecution, Sullivan also asked a court-appointed lawyer to argue the case against Flynn. This is a common practice when none of the attorneys appearing in a case have presented important arguments at the heart of that case. In Seila Law v. CFPB, for example, the Supreme Court recently appointed former Solicitor General Paul Clement to defend a lower court ruling that none of the parties to Seila Law agree with.
Notably, Sullivan has not taken any action whatsoever against Flynn. He has not ruled that the guilty plea must be preserved over the Justice Department’s objection. Nor has he held Flynn in contempt. Judge Sullivan has merely scheduled a hearing and asked a lawyer to brief him on the best legal arguments against Flynn’s position before Sullivan makes a ruling.
Judge Rao’s opinion bypasses the judiciary’s ordinary procedures
Should Sullivan ultimately rule against Flynn — again, there is no guarantee that he will — that order can be appealed to the DC Circuit. Nevertheless, Rao’s opinion concludes that Sullivan isn’t even allowed to consider arguments that cut against Flynn’s interests.
The thrust of Rao’s opinion is that “decisions to dismiss pending criminal charges — no less than decisions to initiate charges and to identify which charges to bring — lie squarely within the ken of prosecutorial discretion.” So, if prosecutors decide to dismiss charges against an individual, that’s the end of the case.
Perhaps Rao is correct about this — although there are many historical examples of court-appointed lawyers prosecuting federal crimes — but the core problem with her opinion is that Rao’s court has no business intervening before Sullivan decides the case.
The “drastic and extraordinary remedy” sought by Flynn is known as a “writ of mandamus.” As Judge Robert Wilkins explains in a dissenting opinion, appeals courts may only grant mandamus relief if the person seeking such relief has “no other adequate means to attain the relief he desires” and “his right to the issuance of the writ is ‘clear and indisputable.’”
But Flynn absolutely has another adequate means to obtain the primary relief he seeks in this case: dismissal of the charges against him. Flynn and his lawyers can argue their case before Judge Sullivan. If Sullivan agrees to dismiss the charges, Flynn wins! If Sullivan does not dismiss the charges, Flynn can then appeal this case to the DC Circuit, which may very well rule in Flynn’s favor once the case is properly before that court.
Nor is Flynn’s right to mandamus relief “clear and indisputable.” To the contrary, the DC Circuit held in 2015 that “mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.”
Thus, in their apparent zeal to grant relief for a former Trump aide, the two judges in the majority, Rao and Henderson, ignored the very strict limits preventing their court from issuing a writ of mandamus.
Rao has a history of writing dubious opinions that benefit Trump and his allies
Henderson is a very conservative judge who sometimes took positions to Justice Brett Kavanaugh’s right when Henderson and Kavanaugh served together on the same court.
Meanwhile, Rao, who served in the Trump White House and only became a judge in 2019, has quickly built a reputation as a rubber stamp for the Trump administration’s preferred outcomes. She wrote a widely mocked dissenting opinion that would have blocked much of Congress’s power to investigate Trump. And she sought to delay the House’s ability to obtain documents related to former special counsel Robert Mueller’s investigation into possible Russian interference in the 2016 election.
She also would have stripped the federal judiciary of much of its authority to review the Trump administration’s efforts to swiftly deport immigrants.
Rao, however, is in the minority on her court. Currently, Democratic appointees control seven of the 11 active judgeships on the DC Circuit, and the full court has the power to vacate Rao’s opinion through a process known as “en banc” review.
So, while Rao reached pretty far to benefit a former Trump aide in Flynn, it is far from clear that she will have the final word.
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