Litman: Michael Flynn's latest day in court adds up to a probable win for , partisanship and corruption

Trump's former national security advisor Michael Flynn departs a federal courthouse in Washington in 2019. <span class=(Patrick Semansky / Associated Press )" src="https://s.yimg.com/ny/api/res/1.2/EIAMPYI1lb9iGwBNkvEjiw--/YXBwaWQ9aGlnaGxhbmRlcjt3PTcwNTtoPTQ3MA--/https:/s.yimg.com/uu/api/res/1.2/FYweVohZoqySUq40JewIxw--~B/aD01NjA7dz04NDA7c209MTthcHBpZD15dGFjaHlvbg--/https:/media.zenfs.com/en/los_angeles_times_opinion_902/bc271c79795db0ecedf78487daa93708" />
's former national security advisor Michael Flynn departs a federal courthouse in Washington in 2019. (Patrick Semansky / Associated Press )

It’s now pretty clear what’s going to happen in the case — the saga — of Michael Flynn, President ’s first national security advisor, who had to resign after only 23 days in office. He’ll escape justice, at the president’s behest.

Charged by Special Counsel Robert S. Mueller III in March 2017 with lying to the FBI about his contacts with a Russian official, Flynn pleaded guilty and twice confirmed his guilt in detailed answers under oath to the court.

But with the case ready for sentencing, Atty. Gen. William Barr decided the prosecution should be dropped, a result the president had been calling for by tweet. On May 7, the Department of Justice filed a motion to dismiss the case, saying that conviction no longer served the interests of justice and suggesting that Flynn’s lies were essentially benign.

The career prosecutor on the case withdrew in protest; no prosecutors on the case would sign the motion. Their view, no doubt, is that the crimes Flynn confessed to are very serious. Former Deputy Atty. Gen. Sally Yates was on Capitol Hill last week explaining it again: Flynn cozied up to Russian officials behind the back of the Obama administration (which was still then in power), undermined U.S. Russian policy and then lied about it. His conduct was material to a counter-intelligence investigation, and it subjected him to the possibility of blackmail by a foreign power.

In response to the DOJ’s sudden change of heart about Flynn, District Court Judge Emmet G. Sullivan called for a hearing, and because the government no longer was presenting arguments against Flynn, he appointed another lawyer to take on that task. Rather than wait for the hearing, Flynn’s lawyer ran to the Court of Appeals for the D.C. Circuit to seek a “mandamus” order telling Sullivan to drop the case immediately.

A mandamus (literally “we command,” in Latin) writ short-circuits the normal course of legal proceedings, and for that reason courts of appeals won’t grant it unless a party can show that the lower court is violating a “clear and indisputable” right and the harm can’t be remedied on later appeal.

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A three-judge panel of the D.C. court first ruled for Flynn, in a 2-1 opinion written by appointee Neomi Rao, and issued the mandamus. But the full circuit court voted to vacate that ruling and hear the case anew. That “en banc” hearing happened Tuesday.

Over four hours of questioning, the judges made it clear that Rao's opinion would be permanently consigned to the dustbin. Sullivan is entitled to convene a hearing on the dismissal; if the ruling goes against Flynn, he or the government could bring an appeal.

Even the lawyer representing the DOJ’s position, Acting Solicitor General Jeffrey Wall, appeared to recognize the strong current he was swimming against. Wall began to offer answers along the lines of, “We think X, but if the court disagrees, it should still say Y in the opinion.” The "Y" he wanted was language that would constrain Sullivan's room to maneuver in a hearing on the dismissal.

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Wall argued that it would be improper to let Sullivan second-guess the department’s reasons for seeking a dismissal (which Wall coyly suggested turned in part on nonpublic information) or to call witnesses. Instead, the hearing should focus only on the legal sufficiency of the government’s motion to dismiss.

The judges sounded receptive. I expect them to decline to issue the mandamus but using words emphasizing that Sullivan has only a very narrow path forward.

Flynn could petition the Supreme Court to rule that the mandamus order was appropriate after all. If he and his lawyer are wise (something they haven’t consistently been in the course of the case), they’ll take what the Court of Appeals offers instead. The Supreme Court would be very unlikely to take the case, and Flynn would remain in legal limbo while the case continued to drag on.

So Sullivan’s actions will have been vindicated, but he won’t be able to stick his neck out too far. Unless the hearing in his courtroom produces something remarkable, he will probably grant the DOJ’s dismissal rather than risk getting slapped down on appeal.

The likely bottom line: Nearly three years after he pleaded guilty in a righteous prosecution, Flynn — a man who compromised U.S. national security and then lied about it — will walk.

As for the rest of us, we’ll be shown once again that the best remedy for partisan and corrupt conduct at the Department of Justice is at the ballot box.

Or, as in Barr’s ultra-cynical formulation: “History is written by the winners.”

@HarryLitman

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