A Loss for Flynn and a (Temporary?) Win for McGahn

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The U.S. Court of Appeals for the D.C. Circuit usually releases opinions on Tuesday and Fridays. Today, however, was Judge Thomas Griffith’s last day on the court before his retirement, so the court made an exception, releasing an en banc decision in which he participated, a divided panel opinion (in which he wrote the majority), and a revised panel opinion in which he participated.

The headline decision from the D.C. Circuit was the court’s en banc opinion in In re: Michael Flynn, overturning the panel opinion granting Flynn’s Emergency Petition for a Writ of Mandamus ordering dismissal of the criminal charges against him. With ten judges participating, the court issued a per curiam opinion denying the petition and rejecting Flynn’s attempt to have the case assigned to a different district court judge.

The two judges in the majority for the panel decision—Judges Rao and Henderson—each wrote dissents (and joined each others dissents). Judge Rao, who wrote the initial panel decision, focused on the merits. Judge Henderson focused on the question of whether Judge Sullivan had disqualified himself and the case should be reassigned on remand.

Judge Griffith wrote a concurring opinion that is worth quoting.

In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken.

This proceeding is not about the merits of the prosecution of General Flynn or the Government’s decision to abandon that prosecution. Rather, this proceeding involves questions about the structure of the Judiciary and its relationship to the Executive Branch. There are two central problems in this case: defining the scope of the authority of the Judiciary to inquire into the exercise of a core function of the Executive and deciding how the relationship between the district court and our court shapes a challenge to that inquiry. Those questions are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree. See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). And that principled disagreement revisits a long-running debate about the relative powers of the Executive and Judicial Branches. Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic, see Judiciary Act of 1789, ch. 20, § 22, 1 Stat. 73, 84; 28 U.S.C. § 1291, and we are aware of no case in which a court of appeals has ordered a district judge to decide a pending motion in a particular way.

Moreover, as its counsel repeatedly stated at oral argument, the district court may well grant the Government’s motion to dismiss the case against General Flynn. In fact, it would be highly unusual if it did not, given the Executive’s constitutional prerogative to direct and control prosecutions and the district court’s limited discretion under Rule 48(a), especially when the defendant supports the Government’s motion. But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time.

Judge Griffith had the opinion for the court in Committee on the Judiciary v. Donald McGahn, IIin which the court concluded, 2-1, that the House of Representatives lacked a cause of action to sue to enforce a subpoena to former White House Counsel Don McGahn. This same panel had previously concluded that the House lacks standing to sue to enforce a subpoena, but that opinion was recently overturned by the full court, sitting en banc. Judge Henderson joined Judge Griffith’s opinion—his last majority opinion on the court. Judge Rogers dissented. House Speaker Nancy Pelosi has already announced the House will seek en banc review of this decision.

In a final action, the court issued a revised version panel decision in which Judge Griffith participated granting Hillary Clinton’s petition for a writ of mandamus in a lawsuit seeking the disclosure of her e-mails. I wrote about the initial opinion here.

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