Yesterday’s decision by the United States Court of Appeals for the District of Columbia is the latest twist in Michael Flynn’s prosecution for lying to federal agents about his contacts with Russia’s ambassador to the U.S. The court ruled that U.S. District Judge exceeded his power by refusing simply to go along with the Justice Department’s decision to drop the charges against President Trump’s former national security adviser.
It found that the trial judge’s “demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.” It said that “the contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority.”
And it took the usual step of acting without waiting for Judge Sullivan to decide on the Justice Department’s motion. It issued a writ of mandamus instead.
Sullivan had appointed John Gleeson, a former federal judge, to argue against the government’s position and help him decide how to proceed. Gleeson called the Justice Department’s decision a “gross abuse of prosecutorial power” and “highly irregular conduct to benefit a political ally of the President.”
The appellate court paid no attention to those characterizations or to Attorney General William Barr’s sustained assault on the norms and traditions which in the past have maintained the independence of the department he leads and guided prosecutorial decision-making.
Its ruling dangerously expands the already vast discretionary powers of prosecutors in charging and dismissing charges.
The majority highlighted what it variously called “the Executive’s ‘long-settled primacy over charging decisions,’” and “its exclusive prosecutorial power.” It explained that “‘authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.’”
Here the Court of Appeals drew on, and extended, a well-established tradition of judicial deference to prosecutors.
Courts have long acknowledged prosecutors’ “awesome” power and the fact that, as the legendary prosecutor Whitney North Seymour once said, each prosecutor is a “king is in his own domain.”
Deference has been especially prevalent in cases concerning decisions not to prosecute—cases in which courts have resisted issuing writs of mandamus requiring prosecution. In those cases, the “tone,” as Yale law professor Abraham Goldstein once observed, “…has been less one of judicial restraint than of judicial withdrawal.”
The situation has not been all that much different in cases of vindictive prosecution (those charging decisions that violate due process) and in cases of selective prosecution (those charging decisions that violate equal protection). Even in these cases, prosecutors are seldom called to account.
The first of these, vindictive prosecution, usually occurs in cases of re-indictment—especially cases in which a defendant is charged a second time with a more serious offense.
In cases of selective prosecution, judges grapple not with the content of a charge but with the simple fact of whether a prosecutor’s decision to pursue or decline prosecution is justified. While these cases give judges a chance, as Peter Henning says, to “wax eloquent about the need for fair administration of justice under the Equal Protection Clause’s clear limit on a prosecutor’s discretion,” in the end courts have been reluctant to impose stringent requirements.
Writing in the case of Newman v. United States, then-circuit court Judge Warren Burger said that few subjects are “less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.”
The appellate court in the Flynn case followed in Burger’s footsteps and insisted that Judge Sullivan erred in not according the government a “presumption of regularity.”
That insistence strains credulity when applied to the Trump/Barr Justice Department’s questionable conduct in Flynn’s and other cases. Every day it seems as if there is another reminder that things are anything but regular in the department.
To cite a few examples: Yesterday Congress heard testimony about pressure the Trump administration applied in Roger Stone’s case. Last weekend, Barr made a ham-handed effort to oust Manhattan’s U.S. Attorney and replace him with a Trump crony.
And earlier this year, the Attorney General maneuvered then-U.S. Attorney Jessie Liu out of her position at the helm of the D.C. U.S. Attorney’s office and replaced her with Timothy Shea, who abruptly changed the office’s position on the prosecutions of Trump allies Stone and Flynn.
The appeals court should have taken those incidents and others like them into account when it rolled out its “presumption of regularity.”
In addition, the court mistakenly ignored a 1977 Supreme Court decision authorizing judges to deny a motion to dismiss if the government’s effort to terminate a prosecution is “tainted with impropriety” or can “fairly be characterized as ‘clearly contrary to manifest public interest.’”
Judge Sullivan was seeking to make just such a determination. To cut off the inquiry is to further embolden Barr and leave unexamined exactly why the Justice Department moved to dismiss Flynn’s guilty plea.
Judicial deference toward prosecutorial decisions can only be reconciled with constitutional governance if prosecutors respect, and are guided by, canons of integrity and professionalism for which the current leadership of the Justice Department shows utter disdain.
Absent such respect, judges must step in.
If they do not, all Americans are left defenseless in the face of the Trump administration’s ruthless assault on the rule of law.