On Monday, the D.C. federal appeals court sent Lt. General Michael Flynns case back where he didnt want it to go: A hearing before district court Judge Emmet Sullivan. The appeals court refused to order Judge Sullivan to drop Flynns prosecution, as Attorney General William Barr had asked.
Put aside the technical nature of the ruling — that Flynn hadnt 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.
But first, what was not at issue: Flynns guilt. He had twice admitted lying to the FBI. In court. Under oath.
► His FBI lies were no small matter: In December 2016s presidential transition period, Flynn jumped the gun as National Security Advisor-in-waiting: He coordinated by phone with Russian Ambassador Sergey Kislyak on Russias response to President Obamas just-imposed sanctions for Russias election interference to help the Trump 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.”
Another thing not at stake was the strength of the Justice Departments 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 governments motion “disingenuous.”
The motion implausibly argued that Flynns 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.
► 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.”
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 prosecutors 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 prosecutors 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 DOJs and Flynns lawyers. They said that separation of powers means that a court must accept the executive branchs decision to dismiss a criminal case, even if procured by cash.
They werent 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.
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 hes a friend of the president. That corrupts our democracy. Had Wall conceded that bribery was a basis for rejecting a dismissal, hed be one small step from conceding the same result for a dismissal based on political favoritism. So he couldnt 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.