It may look as though former National Security Advisor Michael Flynn’s legal troubles ended for his lying to the FBI about blabbing to Russians when a divided federal appeals court Wednesday ordered the trial judge to dismiss the case immediately.
But not so fast.
There are two ways the Court of Appeals for the District of Columbia Circuit could reconsider the three-judge panel decision that resulted in Wednesday’s 2-1 vote.
The simplest, but exceedingly rare option, would be for U.S. District Judge Emmet Sullivan to ask the full 11-judge court to vote to reconsider the opinion, in a process known as an en banc review. It takes a majority vote, at least 6 of the 11 judges, to grant such a hearing.
Currently, the court is composed of seven appointees of Democratic presidents and four by Republican presidents. That is not to suggest appellate judges vote along political lines, but rather an indication of where they may fall philosophically on a conservative/liberal scale.
The second, and potentially more interesting means to get an en banc rehearing would be for one of the 11 judges, acting on their own, to call for a vote of the full court. That would also require a majority vote to grant a rehearing.
Getting a rehearing en banc would not be easy.
While appeals courts around the country differ in their willingness to grant en banc reviews, the DC Circuit keeps it at arms-length and rarely grants them – less than one a year in recent years, according a 2017 Yale Journal of Regulation article.
But the court’s rules say the full court may grant en banc review if, say, the Flynn ruling created a conflict with another precedent of the DC appeals court or any other of the circuit courts of appeal.
The full court may also vote to reconsider if the case involves “a question of exceptional importance.”
So, what did the majority do in Flynn’s case?
Recall, Flynn twice pleaded guilty to lying to the FBI about having spoken with the Russian ambassador to the US in 2016 before Trump was sworn in as president. Then Flynn sought to withdraw the guilty plea arguing that the FBI engaged in misconduct and trapped him.
In a stunning about face, Attorney General William Barr ordered prosecutors in May to ask Judge Sullivan to dismiss the case.
Sullivan said, not so fast, and appointed a former judge to critique the government’s request. Then Sullivan would hear the results and decide whether to agree to dismiss the guilty plea.
Flynn filed an emergency request that the DC Circuit Appeals court order Sullivan to stop. Flynn argued that Sullivan overstepped his authority and that the appeals court should take the case away from him.
Judge Neomi Rao, who was appointed to the appeals court by Trump less than a year ago, and Judge Karen LeCraft Henderson, a 1990 appointee of President George H.W. Bush, sided with Flynn but refused to take the case from Sullivan.
“Our precedents emphatically leave prosecutorial charging decisions to the executive branch and hold that a court may scrutinize a motion to dismiss only on the extraordinary show of harassment of the defendant or malfeasance such as bribery – neither of which is manifest in the record before the district court,” Rao wrote.
Rao said the courts is to decide if the government’s move to dismiss is “reasonable” and its position is entitled to a “presumption of regularity.”
By contrast, Judge Robert Wilken, appointed to the court in 2014 by President Obama, dissented arguing there is an important role for Judge Sullivan when the government and defendant come together to seek dismissal of charges. That is to decide if dismissal is “in the public interest.”
Approval of dismissal may be denied if the government engaged in an abuse of prosecutorial discretion, he said. The Flynn case should be sent back to Sullivan to allow for a hearing to consider the government’s conduct.
“The majority shuts its eyes to the unsettled state of the law on relevant questions,” Wilken said.
The dissent says the majority opinion throws the circuit in conflict with other appeals courts, including New York-based 2nd Circuit, New Orleans-based 5th Circuit and the Denver-based 10th Circuit.
Circuit conflict and unsettled precedent are both bases for full court en banc review.
Case: In re: Michael Flynn, #20-5143