A defendant with a pardon tops a defendant without a prosecutor

"General Michael Flynn is a defendant without a prosecutor"

With that rhetorical hook, Sidney Powell, counsel for former National Security Advisor Michael Flynn, began her Aug. 11 argument to an eclectic, en banc 10-judge U.S. Court of Appeals for the D.C. Circuit in Sullivan v. Flynn. The court's 8-2 per curiam Aug. 31 opinion did not bite.

The two dissenters were the court's most junior member, Neomi Rao (2019) and its most senior, Karen Henderson (1990). They had been the two judges in the 2-1 panel decision (Judge Robert Wilkins dissented) that issued the writ mandating District Judge Emmet Sullivan grant the government's motion to dismiss Flynn's case, and from which en banc consideration followed.

Powell's opening flourish had its genesis in the Department of Justice joining Flynn in pressing for mandamus, commanding that Sullivan, a 36-year district judge, grant the dismissal motion, filed in 2020 after Flynn had twice pled guilty in subsequent Decembers, 2018 and 2019, before two different judges.

After an unprecedented, unrequested, deep-dive into DOJ files, personally initiated by Attorney General William Barr, for statements or conduct that would help Flynn, the DOJ's motion claimed Flynn's false statements were not material, because they were made during an FBI investigation that was supposed to have been closed, and second that pillow-talk speculations about the truth of Flynn's statements between loose-lipped DOJ agents/lovers was exculpatory.

Under the circumstances, Sullivan -- Judge Henderson referred to him as an ol' hand -- saw in this prosecutorial largesse the fingerprints of unclean hands, and seeing the "defendant without a prosecutor," appointed amicus to brief an opposition to the motion. The process was halted when Flynn and the government, in fellowship, joined hands and successfully sought mandamus from the circuit panel.

The en banc decision refused to follow the panel path, denied the writ, basically reversing the three-judge decision.

Chief Judge Sri Srinivasan began the en banc questioning with a critical thrust at Flynn's counsel: "Are you aware of any other case in which mandamus has been granted to compel a district court to decide a motion in a certain way, either by granting or denying it, before the district judge had an opportunity to first rule on that motion?" The reluctant answer was "no."

On that point, Judge Thomas Griffiths would file a pithy concurrence: "Today 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. That is a policy the federal courts have followed since the beginning of the Republic." Judge Griffiths further observed, "General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time."

The court squeezed concessions from the resistant tag-team that there was no prohibition to Sullivan inquiring into the circumstances of the Rule 48(a) dismissal -- so long as a perfunctory. Judge Griffiths, the former non-partisan Senate counsel in the Clinton impeachment, and who, during his confirmation hearing, received two support letters from Clinton's former counsel, was incensed.

When Powell described the scope of Sullivan's power as merely "ministerial," Griffiths snarled, "It's not only ministerial, and you know it's not!"

Judge Wilkins, who is Black and was the successful plaintiff in Wilson v. Maryland (1992), leading to reforms in area of vehicular racial profiling, or "DWB -- driving while black," asked, "could a judge probe the government's proffered reason for seeking a Rule 48(a) dismissal motion if the court had received compelling contrary information e.g., that the defendant was seen and recorded giving that prosecutor a valise full of money? An incredible "no" followed.

Troubled, Judge Patricia Millett, who as a deputy solicitor general argued 32 Supreme Court cases, 36 circuit cases and holds a 2nd-degree black belt in Taekwondo, was quick, agile and determined in gaining a reluctant and conflicting admission from Powell. "Yes," the court could look into the problem of the prosecutorial representations or lying to the court.

Judge Merrick Garland, the almost-Supreme Court justice and the supervisor of the Oklahoma City bombing prosecution team, which included counsel for Judge Sullivan, observed that courts routinely question prosecutors about actions they take in a case, and Judge Cornelia Pillard jumped on the pile with queries about the court's ability to preserve the integrity of the court and the court's inherent power to "police its own processes."

Likewise, Judge David Tatel, the skier, marathon runner and hiker -- all without sight since law school -- for guidance cited the Supreme Court's Batson inquiry of prosecutorial motives in juror dismissals when challenged on race.

The permissible depth and breadth of Judge Sullivan's Rule 48(a) inquiry before it breaks the tension between Article II and III powers, is unknown. The dissenters, Flynn and the government believe only a shallow dip is allowed.

On a practical level, there can be much speculation about the next steps that will be taken and by whom, but certain is one thing, a defendant with a presidential pardon tops a defendant without a prosecutor. 