The moment when the Justice Department lost the chance to dismiss General Flynn's case

On Monday, the D.C. federal appeals court sent Lt. General Michael Flynn’s case back where he didn’t want it to go: A hearing before district court Judge Emmet Sullivan. The appeals court refused to order Judge Sullivan to drop Flynn’s prosecution, as Attorney General William Barr had .

Put aside the technical nature of the ruling — that Flynn hadn’t waited for Judge Sullivan to rule. Whatever hope Flynn and the Department of Justice had before the appeals court was lost at the August 11 hearing. A skillful appeals court judge, Robert L. Wilkins, exposed the trap door in their argument, a latent insult to judicial integrity.

Flynn's guilt

But first, what was not at issue: Flynn’s guilt. He had twice admitted lying to the FBI. In court. Under oath. 

    ►  His FBI lies were no small matter: In December 2016’s presidential transition period, Flynn jumped the gun as National Security Advisor-in-waiting: He coordinated by phone with Russian Ambassador Sergey Kislyak on Russia’s response to President Obama’s just-imposed sanctions for Russia’s election interference to help the campaign. 

    ► Flynn denied discussing sanctions with Kislyak to cover up his undercutting American foreign policy before Flynn was in office. He told the same lie to Vice President-elect Mike Pence, who then repeated it on “Face the Nation.”

Former National Security Adviser Michael Flynn on Feb. 1, 2017, in Washington, D.C.

Former National Security Adviser Michael Flynn on Feb. 1, 2017, in Washington, D.C.

Former National Security Adviser Michael Flynn on Feb. 1, 2017, in Washington, D.C.

Another thing not at stake was the strength of the Justice Department’s dismissal motion. Nearly 2000 former Justice Department officials denounced Barr's “assault on the rule of law.” Don Ayer, a Reagan deputy attorney general, said the argument failed “the laugh test.” Former assistant attorney general for National Security Mary McCord called the government’s motion “disingenuous.”

The motion implausibly argued that Flynn’s lies were not “material” to any open FBI investigation.

   ► Never mind that in a 1985 case named United States v. Hansen, then-D.C. Circuit judge Antonin Scalia established that there need be no open investigation it to be a crime to lie to the FBI.

Story continues

   ► Never mind that the Russians would have known that General Flynn had lied to Vice President Pence, putting “Mr. Flynn in a potentially compromised situation that the Russians could use against him.”

   ► Never mind that the FBI was entitled to learn whether, in the words of the former head of CIA clandestine operations in Europe and Eurasia, Kislyak had “played Flynn like a fiddle.”

Michael Flynn case dismissed: Judge Sullivan's novel actions served injustice

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But the legal issue before the appeals court was none of these. Rather, the issue was this: Are there any circumstances when a court could deny an unopposed prosecutor’s motion to drop a case?

Dropping Flynn's case

Which brings us to the moment when the argument was lost. At the Aug. 11 hearing, D.C. Circuit Judge Wilkins asked a “hypothetical”: Suppose a judge is considering a prosecutor’s dismissal motion and a group of nuns and bishops present the judge with a video showing the prosecutor accepting a briefcase full of cash from the defendant. Would the judge have to dismiss the case?

“Yes!” responded the DOJ’s and Flynn’s lawyers. They said that separation of powers means that a court must accept the executive branch’s decision to dismiss a criminal case, even if procured by cash.

They weren’t joking. In fact, when Judge Wilkins asked acting Solicitor General Jeffrey Wall what if some future Attorney General himself were part of the bribe, Mr. Wall stuck to his guns: The judge would still have to drop the case.

Federal court majorities are not partial to arguments that have judges blessing bribery.

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So why would an experienced advocate like Wall try it? To avoid the “slippery slope”: Bribery is but one form of corruption. Another is freeing a confessed criminal because he’s a friend of the president. That corrupts our democracy. Had Wall conceded that bribery was a basis for rejecting a dismissal, he’d be one small step from conceding the same result for a dismissal based on political favoritism. So he couldn’t give an inch.

Attorney General Barr had put his acting solicitor general against a wall. Judge Wilkins found the hole and drove a hypothetical through it.

Roy L. Austin, Jr., deputy assistant attorney general under President Obama, is a partner at Harris, Wiltshire and Grannis in Washington, DC. Dennis Aftergut is a former federal prosecutor in San Francisco who writes on national affairs.

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This article originally appeared on USA TODAY: How the Justice Department lost the chance to dismiss the Flynn case

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