Excellent Legal Analysis, then a blandly partisan political conclusion

The New York Times published an op-ed by J. Michael Luttig, a former federal judge, headlined How The Court Bungled the Michael Flynn Case. It provides an excellent legal analysis of the egregious flaws in Judge Rao’s legal analysis in a controversial 2-1 opinion that reaches none of the required legal points in ordering immediate dismissal of the Flynn case without a hearing. The op-ed also provides a prime example of the importance of knowing who is writing what you are reading. In the internet age, you don’t have to dig far to find out that Luttig, wealthy longtime Boeing lawyer, is a lifelong right-wing idealist [1].

Luttig concludes, after his precise legal analysis, while purporting to weigh the benefits of reversing this clearly wrong opinion in “perhaps the most consequential political constitutional case in recent memory,” that there is really no harm/no foul in letting the ruling stand, since the incorrectly decided opinion, ordering immediate dismissal of a case the Court “bungled” (in dismissing the case) will never be a precedent since it was idiotically decided. Fair is fair, concludes Luttig, in assessing whether the Court should rehear and reverse the clearly wrong decision. Rehearing and reversing, he writes:

… would only further politicize the already politicized case and the federal judiciary along with it. Prolonging what would then be a three-ring judicial circus would exact an almost unconscionable price from the integrity of the judicial process...

… The government’s facially [sic] and unrebutted reasons for wanting to dismiss the prosecution — namely that the government itself wrongly investigated and prosecuted Mr. Flynn in the first place and then withheld exculpatory evidence from him in the second place — are constitutionally compelling.

The Times, as you know, is dedicated to presenting a diversity of opinion. This is a fine example of a diverse opinion blandly affirming Bill Barr’s unassailable point of view (Barr was Luttig’s immediate predecessor at H.W. Bush’s Office of Legal Counsel), dangerously contextualized by an intelligent and fair critique of a grievously erroneous Court of Appeals decision, rehearing of which would:

unavoidably be perceived by many as the court’s positioning itself to rule for the losing side in last week’s case, evening the political score in this pitched partisan battle. This would only further politicize the already politicized case and the federal judiciary along with it.

God forbid the federal judiciary ever be politicized!

We should also note that the “losing side” is entirely, indisputably correct, from a legal point of view, which Luttig silently acknowledges. Only a Trump appointee could have written the ruling Judge Rao did, contorting herself to support the Unitary Executive above all other legal considerations.

As a threshold matter– yes, in the end Judge Sullivan will have to dismiss the case against Flynn if the DOJ belatedly decides its prosecution was “not in the interests of justice.” The DC Court of Appeals ruled 2-1 (incorrectly, in Luttig’s and virtually every other lawyer’s analysis) that Sullivan must immediately dismiss the case without a hearing. The ruling offered no legal reason for this extraordinary remedy except for “irreparable harm” to the prerogatives of the Executive Branch if the judge was allowed to “usurp” its powers by holding any kind of hearing prior to dismissing the case the DOJ now seeks to immediately end, with prejudice, “in the interests of justice”.

Luttig analyzes the fatal flaws of Judge Rao’s opinion:

In considering Mr. Flynn’s request, the appeals court had before it three simple questions: Does Mr. Flynn have a clear and indisputable right to have his case dismissed — before Judge Sullivan rules? Does he have any other remedy for the harm he may suffer if the case is not dismissed immediately? And last, is ending Mr. Flynn’s prosecution now, before Judge Sullivan rules, “appropriate under the circumstances”?

As it turns out, the Court of Appeals panel decided none of these three questions.

And, spoiler alert, the answer to the first is no, the answer to the second is yes, the answer to the third is no. The law requires: yes, no and yes in answer to these three simple questions before a writ of mandamus may be granted. Luttig:

Take the first question. Though it purports to have done so, the court did not decide that Mr. Flynn had a clear and indisputable right to immediate dismissal. Rather, the divided court decided the entirely different question of whether the government would have had a clear and indisputable right to have its prosecution dismissed immediately. “The circumstances of this case demonstrate,” Judge Neomi Rao wrote, that immediate dismissal “is appropriate to prevent the judicial usurpation of executive power.” However, it was not the government that asked the appeals court to dismiss Mr. Flynn’s prosecution before Judge Sullivan ruled. It was Mr. Flynn.

Luttig analyzes how consideration of the other two issues the court must weigh are also absent from Judge Rao’s decision, which ultimately rules in favor of a party (the Executive Branch) that was not even in court seeking the extraordinary legal relief she ordered for Michael Flynn.

Luttig then goes on to weigh the compelling reasons to rehear and not to rehear arguments in a wrongly decided case. As turns out, Luttig concludes there is really no compelling reason to allow a judge to hold a hearing when Bill Barr says everything was done on the up and up and that Flynn’s plea to the charges brought by Mueller is now a nullity under the law since Barr recently concluded Flynn’s actions did not constitute “material” lies or omissions made with any intent to obstruct Mueller’s unfair witch hunt, which began in Obama’s “spying.” Things that Barr has ordered criminal investigation into the “oringes” of.

It is fair to say, whatever your political views, that dismissal of Flynn’s guilty plea without a hearing confers an advantage on those who stand to gain by a dismissal in the dark without evidence of why the government suddenly dropped a case against a man who pleaded guilty to multiple felonies involving the Trump campaign’s well-documented Russian help in the 2016 election. Flynn, Trump’s senior campaign advisor (led “Lock her Up!” chants at the RNC) and the shortest serving National Security Advisor in history, recall, was fired for lying to Vice President Pence about Flynn’s illegal contacts with Russian officials during the transition period. Flynn pleaded guilty to lying to the FBI — in covering up connections between the Trump campaign and Russia — as well as to lies and omissions on his security clearance registration forms where he did not disclose a major conflict of interest: his work for the Turkish government [2].


Knowingly or not, the Court of Appeals simply appears to have bungled perhaps the most consequential political constitutional case in recent memory.

Every day, courts err and often even grievously. That said, the question now is whether the entire Court of Appeals will or should rehear this significant constitutional case.

A difficult decision for the DC Court of Appeals, he writes, one that, if decided with political bias (or not), could only make Bill Barr’s life much harder than it already is, not to mention the life of the occasionally mendacious (but not materially so) General Flynn and those many supporters of the Unitary Executive who support him.

[1] Reading Luttig’s CV afterwards I understood why the then youngest man ever appointed to the federal bench (37) and former Executive Vice President, Counselor and Advisor to the Board of Directors at Boeing (who made $3,463,793 in 2019) would likely come to this conclusion:

Though each judge receives hundreds of applications, a few conservative judges seek out Federalists. Judge Michael Luttig on the Court of Appeals for the Fourth Circuit, for example, hires only students with membership in the Federalist Society or comparable credentials on their resumes. And almost all of Judge Luttig’s clerks go on to clerkships at the Supreme Court. His unheard-of batting average is sustained because Judge Luttig diverts clerks who don’t land a clerkship with other Justices to Justice Scalia (whom Luttig himself clerked for) and Justice Clarence Thomas. Justice Kennedy interviews applicants based on recommendations from a group of Federalist-friendly professors and Judge Kozinski, himself a former Kennedy clerk. Judge Kozinski stresses, however, that Federalist Society membership is only one factor. “If you are suggesting that it gets people jobs it’s simply not true,” Judge Kozinski says. “It’s like saying you’re in the Boy Scouts.”

[although, coincidentally, they only hire Boy Scouts.]

source (excellent article about the Federalist Society)


On April 23, 1991, President George H. W. Bush nominated Luttig to fill a newly created seat on the United States Court of Appeals for the Fourth Circuit. Confirmed by the United States Senate on July 26, 1991 and receiving his commission on August 2, 1991, he became the youngest judge (at age 37) on a federal appeals court at the time of his appointment.[7]


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