Letter to the editor

To the editor

re: J. Michael Luttig, How The Court Bungled the Michael Flynn Case


J. Michael Luttig follows his analysis of Judge Rao’s controversial decision in “the most consequential political constitutional case in recent memory” by warning that overturning the clearly incorrect ruling “would only further politicize the already politicized case.”    He details how Judge Rao failed to address any of the three required legal conditions for shutting down Judge Sullivan’s hearing and ruled for a party that was not even in court (the “bungle” in his title), but urges the Court of Appeals to avoid a “three-ring judicial circus” that “would exact an almost unconscionable price from the integrity of the judicial process.”


The former judge gives away the game in clinching his argument: “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.” 

With respect for Judge Luttig, what is “constitutionally compelling” is for the courts, not the Unitary Executive, to decide.

(174 words — the Grey Lady wants letters between 150 and 175 words)

It took a night of sleep to cut it down from this more detailed, didactic and bulbous version:

J. Michael Luttig’s excellent legal analysis of the egregious flaws in Judge Rao’s legal analysis in the controversial 2-1 in re Flynn opinion, is undermined by his advocacy for allowing the incorrect ruling to stand, because a rehearing “would only further politicize the already politicized case.”


He sets out the three simple legal questions that must be answered before a judge may order the extraordinary remedy of mandamus — in this case forcing another court to rule without holding a hearing.   He points out specifically how Judge Rao’s ruling left all three required questions unanswered.   Then, in laying out the pros and cons of a review by the full court,  warns of the extreme danger of overturning this clearly mistaken holding, in a unique case he correctly describes as “the most consequential political constitutional case in recent memory.”.  He cannot have it both ways.


Mr. Luttig opines that an en banc rehearing of even this grievously wrong ruling (the “bungle” his title refers to) would lead to a “three-ring judicial circus” that “would exact an almost unconscionable price from the integrity of the judicial process.” In other words, a ruling that is plainly wrong must be left to stand to avoid politicizing the judiciary, even in the special case of an inexcusable, seemingly ideologically-driven judicial error.   

Judge Rao ordered Judge Sullivan to immediately dismiss the Flynn case on the grounds that Judge Sullivan, by holding a hearing before granting the DOJ motion to dismiss, was “usurping” the powers of the Executive Branch. Judge Rao’s decision, as Mr. Luttig explains clearly, established none of the conditions necessary to grant the rare emergency relief that Flynn’s lawyer’s sought.   This is because none of the reasons apply to this case. Unaccountably, Mr. Luttig argues that the Court of Appeals would be wise to steer clear of reviewing the case, as Judge Sullivan is entitled to have them do.

The NY Times is dedicated to presenting a diversity of opinions. Still, this op-ed is advocacy for why Bill Barr’s DOJ is entitled to this rare deference and judicial intervention to protect its legal reasoning from the sunlight of a hearing (on a motion made by Flynn’s lawyers, ruling for the DOJ, a nonparty).  As Mr. Luttig states, in clinching his argument: “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.” 

With respect for Judge Luttig, what is “constitutionally compelling” is for the courts to decide.

(There was no space to add that J. Michael Luttig, former clerk for Antonin Scalia, ardent supporter of the Federalist Society, Bill Barr’s successor in H.W. Bush’s Office of Legal Counsel, conservative federal judge from the age of 37, longtime lawyer for the CEO of Boeing (who retired in the midst of Boeing’s recent deadly scandal) is a lifelong right-wing political operative. Big surprise that he support’s Bill Barr’s position that among the three co-equal branches in our “checks and balances” system, the Executive is by far the most powerful.)

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