8 thoughts on “Wednesday Open Thread”

1. WAPO reports a 2-1 decision that "Appeals court orders judge to dismiss criminal case against Michael Flynn."  Opinion by Judge Neomi Rao, a recent nominee of the *resident.  Immediate wails of "this is the end — Trump has corrupted all justice" or responses of "one case, with special circumstances."

   Elsewhere, lots of questions about what happens next.  Judge Sullivan's acquiescence? Appeal to the circuit for an En Banc decision?  Appeal to the Supreme Court?

    

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   1. en banc review would be good.  SCOTUS might not want to wade in, though it should if asked.  Rao is a disgrace in a robe.  A little surprised at Henderson joining.  Setting aside the gross DOJ corruption that led to this, it is an interesting separation of powers issue.  Had DOJ done this before a guilty plea had entered, I don't think there's any real dispute that the motion to dismiss should be granted, since that's a charging decision by the executive branch.  But after the guilty plea is obtained and accepted by the judicial branch, the power of the executive to move to dismiss the charges should be nil.  

       

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2. There is an interesting separation of powers issue, and I think reasonable minds could disagree. What is, in my opinion, egregious about this ruling is that the appellate court is stepping in and stopping the trial court from doing something (e.g. sentencing Flynn over the DoJ's objection),  before the trial court has actually done that thing. Make no mistake, the trial judge has not ruled on whether he will allow the DoJ to withdraw the case. He has simply scheduled it for a hearing on that issue. The appellate court is stopping him in his tracks before he has had an opportunity to examine the evidence and make findings that may support a conclusion that the DoJ's actions are corrupt and improper.  

   In order for an appellate court to reverse a trial judge, the trial judge usually has to do something "final," after hearing the evidence.  In order to protect Trump and Barr, Judge Rao has put the brakes on any fact-finding and, in effect, dictated how the trial judge must rule before he has a chance to rule on his own. This is what extreme judicial activism looks like. This unfortunately may be Trump's most lasting legacy (blight). 

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   1. Superb analysis, Wormy.

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   2. Nice explanation of the timing of this decision.

      Emptywheel says "Rao’s opinion makes no attempt to defend Flynn’s argument. Rather, her order is entirely about preventing DOJ — Bill Barr — from the embarrassment of being forced to explain his decision."

       

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      1. Yeah, as much as a despise Bill Barr, I think the DoJ has to protect its turf and argue that a judge has very limited discretion to keep a case active if prosecutors request it be dismissed. What is ridiculous here is that the rule in question, 48(a), allows the case to be dismissed at the prosecutor's request, upon "leave of the court," which means with the court's permission. Rao's ruling is not saying that the trial judge wrongly refused to dismiss the case (because the trial court has not ruled), she is saying the trial does not have the authority to ask the DoJ to explain itself. The prosecutors have to ask permission, but the trial court cannot say no. That is simply does not make sense. 

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   3. Excellent run-down, EW. The way I learned it, a writ of mandamus is a vehicle for compelling some pencil-pushing government functionary to perform a ministerial act. Say what you will about the Flynn case as presently postured in the trial court, but that just ain't the situation here.

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3. Chalk one up for the bovines.  @DevinNunesCow is a work of art. 
    

   Devin Nunes can’t sue Twitter over statements by fake cow, judge rules

   But it’s a blow to Nunes nonetheless, as he was trying to push Twitter into revealing the identities of the two accounts, who have been mocking him online anonymously.

    

    

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