Michael Flynn may well get off scot free for lying to the FBI, but the fat lady hasn't sung yet. It is highly likely that the entire DC Circuit will re-hear the case en banc, particularly since the panel consists of seven "liberals" and five "conservatives," any one of whom can ask for a rehearing on a simple majority vote of the bench. DC Circuit Judge Neomi Rao was singing loud and clear yesterday though. And her song is called "Please, Mr. President, Give Me Ruth Bader Ginsburg's Seat!"

Judge Rao, a Trump appointee, is on every conservative's shortlist for the Supreme Court. She's a woman of color who happens to be a heartless fascist and partisan ideologue. Win, win, win! And what better way to make her case than by giving Donald Trump exactly what he wants in the Flynn case?

Remember, the issue here isn't Flynn's guilt or innocence. The issue is whether US District Judge Emmet Sullivan has the right to consider the merits of the government's petition to dismiss the case against Michael Flynn, or whether he has to grant the dismissal immediately as a matter of law. And according to Judges Rao and Karen LeCraft Henderson, a George H. W. Bush appointee, it is illegal for Judge Sullivan to even think about it.


Law Professor Orin Kerr compares this decision to Bush v. Gore, where the Supreme Court ordered Florida to stop counting votes. As in that case, the Court stopped the game mid-play to achieve the desired result, namely that Donald Trump can parade Michael Flynn through a series of campaign appearances as an example of someone who was framed by the Deep State as part of the "Russia hoax." Never mind that Flynn pled guilty on multiple occasions and the government caught him on tape promising sanctions relief to the Russian ambassador.

According to Judge Rao, separation of powers requires the judiciary to cede all prosecutorial authority to the executive branch. Which conveniently ignores the fact that the DOJ already decided to prosecute Michael Flynn, secured a guilty plea, and proceeded to the sentencing phase where the judge makes all the decisions.

Her Honor insists that no matter how much the government deviates from standard procedure, in the face of glaring and admitted interference by Bill Barr to help the president's allies, the court must honor the "presumption of regularity" and assume the DOJ is on the level. Asking any questions at all "would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority."

So the appeals court ordered Judge Sullivan to dismiss Flynn's case right away, without even holding a hearing to consider the government's motion. Even though Flynn would be free to appeal if the court ruled against him after a hearing, so he would still have a remedy without immediate intercession by the DC Circuit. It's a nakedly partisan exercise in outcome-based decision making, which probably won't stand.

And that's all we've got to say on the subject this morning.

[In re: Michael T. Flynn, Petitioner]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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