The prosecution of former National Security Adviser Michael Flynn has already exposed the bad faith of the FBI and Justice Department in pursuing him even when they knew there was no basis for an investigation. Now federal Judge Emmet Sullivan is continuing the legal torture by appealing an order from a panel of the D.C. Circuit Court of Appeals to drop the charges. President Trump should step in now and end this farce by pardoning Mr. Flynn.
In an honest process, Judge Sullivan would have signed off on dropping charges once prosecutors and the defense agreed there is no case to adjudicate.
He refused. Mr. Flynn then sought a writ of mandamus from the D.C. Circuit, and he prevailed in a 2-1 opinion that ordered Judge Sullivan to dismiss the case.
Judge Sullivan is now refusing again by requesting this week an en banc review of the writ by the full D.C. Circuit. Though we don’t know whether the full court will take the appeal, remember that Senate Democrats and Barack Obama packed the D.C. Circuit with liberal judges after ending the judicial filibuster on a partisan Senate vote in 2013.
Judge Sullivan knows that once the court takes the case en banc, the panel opinion is immediately vacated under D.C. Circuit rules. That means the writ ordering him to dismiss vanishes, and the eventual en banc ruling would control. Mr. Flynn’s legal agony would continue for months and perhaps until a Biden Administration takes office.
This is outrageous and continues the politicized nature of this sorry prosecution. The review of the Flynn case ordered by Attorney General Bill Barr found the FBI and Justice Department withheld exculpatory evidence, revised the bureau’s 302 interview forms, and did an end run around normal White House procedures to sandbag Mr. Flynn.
All of this has tarnished two powerful executive branch institutions, and Judge Sullivan’s behavior threatens to do the same for the judicial branch.
Start with the court appearance when Judge Sullivan from out of left field accused Mr. Flynn of “treason.” This is a man who served in the 82nd Airborne and had top intelligence jobs in Iraq and Afghanistan. Judge Sullivan has suggested he might call career officials to explain how Justice decided to drop the charges against Mr. Flynn, an intrusion into executive authority.
He also appointed a former judge, who had already made his bias clear in a Washington Post op-ed, to present arguments against the government’s motion to dismiss. Judge Sullivan has even suggested he might charge Mr. Flynn with perjury for changing his plea after the discovery of new evidence.
Cases like this are precisely when a President’s pardon power is most appropriate. Mr. Flynn’s defenders have let the legal process play out in hopes he might be fully vindicated with the case’s dismissal. But because of Judge Sullivan’s gamesmanship, which seriously impinges on powers the Constitution reserves for the executive branch, the process no longer serves justice.
Mr. Flynn has been vindicated twice—first by a Justice Department motion to dismiss, and then the writ of mandamus by the D.C. Circuit panel. Mr. Trump should act while the panel decision by Judge Neomi Rao joined by Judge Karen Henderson still controls and offers a solid legal rationale.
By ordering Judge Sullivan to drop the charges but stopping short of removing him from the case, the panel treated the judge with far more respect than he is treating the panel’s opinion. If the Flynn case weren’t so political, there is no chance that the full court would hear an en banc appeal of a panel’s writ of mandamus ruling.
Mr. Trump’s pardon statement would be most persuasive if it sticks to the facts and the law rather than assailing his own political enemies. He could rightly emphasize the general’s innocence, the dishonesty of the prosecution, and the transparent bias of a partisan judge.
By pardoning Mr. Flynn now, President Trump would spare a man who served his country for decades from further tribulation.
He would also rescue the courts from discrediting themselves as much as the FBI and Justice have already done.
— The Wall Street Journal