Tags: Michael Flynn | Supreme Court | mandamus | writ | constitutional

Flynn Case Still Has Potential to Make Very Bad Law

former us national security adviser general michael flynn

Retired Lieutenant General Michael Flynn, U.S., former  national security adviser, in Washington, D.C., in January of 2017. (Andrew Harrer-Pool/Getty Images)

By Friday, 31 July 2020 09:36 AM Current | Bio | Archive

The decision of the entire United States Court of Appeals to rehear the panel decision dismissing the case against General Michael Flynn does not necessarily mean that Judge Sullivan was correct in his refusal to dismiss the case. There are two related, but somewhat different, issues that will be presented to the en banc court.

The first is whether the panel was correct in issuing a writ of mandamus that stopped Judge Sullivan in his tracks from even inquiring about the circumstances surrounding the Justice department’s decision to dismiss the case against Flynn.

A writ of mandamus to an appellate court is an extraordinary remedy that is largely disfavored.

It was unusual, therefore, for the panel, in a split decision, to agree even to hear the case at that stage. In its order vacating the panels’ decision, the en banc court asked the parties to address that issue and to answer the question whether other less extreme remedies were available.

These less extreme remedies would include an ordinary appeal taken at the end of Judge Sullivan’s hearings, after he rendered his decision.

The en banc court may well decide only that issue, remanding the case back to Judge Sullivan to continue his hearing, and reserving the right to reverse his decision in the course of an ordinary appeal taken by either of the parties.

The second issue that the en banc court may or may not decide is whether Judge Sullivan ,or any federal district court judge, has the power to refuse to dismiss a case when both parties — the government and the defendant — agree that it should be dismissed.

The second issue is complex and far reaching and involves interpretation of Article III of the Constitution that limits the power of federal district courts to deciding actual cases and controversies.

Flynn’s lawyers will argue, as they already have, that there is no controversy when both sides agree that a case should be dismissed.

That is surely the view most consistent with the actual words of the Constitution.

But the federal rules of criminal procedure seem to allow a judge some discretion in making that decision. The question remains what criteria govern the judge’s exercise of discretion in cases where both parties agree to a dismissal.

Judge Sullivan has suggested that perhaps he has the power to hold Flynn in contempt, or to refer to his case for a perjury prosecution, since Flynn admitted his guilt when he entered a plea of guilty but is now disputing it.

Such a ruling would up end much of our current system of justice, since many defendants today plead guilty despite believing that they are innocent.

Why would a defendant do such a thing?

For a very simple and disturbing reason: the government typically threatens multiple punishment for a defendant who pleads not guilty and is convicted, over the punishment he would receive if he pleaded guilty.

This form of legal extortion has been approved by the courts as a necessary evil, to keep the system running.

After all, if all defendants pleaded not guilty and demanded trials there would not be enough court houses, judge or attorneys to handle the overflow.

So the solution is to reward those who waive their right to trial, or more precisely to punish those who exercise that constitutional right.

I have never understood how the Constitution can tolerate punishing a defendant for exercising a fundamental constitutional right, or rewarding him for waiving that right.

If a voter were offered money to waive his right to vote, that would be a crime.

If a voter were punished for exercising the right to vote, that would be unconstitutional. Yet, we accept — even justify punishing and rewarding criminal defendants depending on whether they exercise or waive their constitutional right To trial.

So I certainly hope the Court of Appeals will not encourage Judge Sullivan on his unconstitutional fool’s errand to punish Flynn for first pleading guilty, under threats to himself and his family, and then seeking to have his case dismissed after receiving advice from his new lawyers.

The most likely result of the rehearing en banc will be a remand to Judge Sullivan with some guidance from the Appellate Court as to how he should exercise his limited discretion in this case.

If Judge Sullivan ultimately decides not to dismiss the case against Flynn, Flynn’s lawyers will surely appeal not only to the Court of Appeals, but likely to the Supreme Court as well.

By the time the case is resolved, one way or the other, we may will have a new president who would be less sympatric to Flynn’s situation.

Normally, that uncertainty would set the stage for some kind of plea bargain — some agreement between the prosecutor and the defendant.

But in this case, there is no disagreement between them to resolve.

The disagreement is between the prosecution and the defense on the one hand, and the but-in-ski judge on the other hand. There is no opportunity to plea bargain, settle or resolve the case.

This is another strong argument to why Judges should not butt in when both sides agree on the appropriate resolution, unless there is hard evidence of real corruption such as bribery or other illegal acts.

Even if the decision of the government was motivated in party by political consideration that would not seem an appropriate justification under our separation of powers for the judiciary to interfere.

So stay tuned. This remarkable an unprecedented case is far from over.

As Oliver Wendell Holmes once reminded us, hard cases make bad law.

This case, because of strong feelings about the weaponization of our criminal justice system, has the potential to make very bad law.

Follow Alan Dershowitz on Twitter: @AlanDersh

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Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "Guilt by Accusation" and "The Case Against the Democratic House Impeaching Trump." Read Alan Dershowtiz's Reports More Here.

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The government typically threatens multiple punishment for a defendant who pleads not guilty and is convicted, over the punishment he would receive if he pleaded guilty. This form of legal extortion has been approved by the courts as a necessary evil.
mandamus, writ, constitutional
Friday, 31 July 2020 09:36 AM
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