Judge Neomi Rao (Credit: Diego Radzinsch/ALM)
“In all my years of appellate practice, I don’t think I’ve ever seen a non-US Supreme Court appellate opinion that so thoroughly demolishes a dissenting opinion as this one. Judge Rao could not have done better in writing the opinion, and it should be required law school reading.
Judge Robert Wilkins (Credit: public domain)
In addition, Judge Wilkins’ dissenting opinion is so off-the-mark that I believe he has shot himself in the foot for purposes of en banc review–in other words, he has ensured that otherwise-sympathetic judges on the DC Circuit will vote against en banc review.
Judge Rao comes out swinging by holding that its earlier opinion in Fokker “foreclose[s] the district court’s proposed scrutiny of the government’s motion to dismiss the Flynn prosecution.” p. 7.
In relying on Fokker, Judge Rao explicitly rejects Judge Wilkins argument that Fokker’s holding is dicta (that is, non-binding). She holds Fokker “is directly controlling here.” p. 14.
Keep in mind that Fokker was written by Chief Judge Srinivasan, an OBAMA appointee. Judge Srinivasan does NOT want Fokker’s legitimacy undermined, no matter his politics.
Judge Wilkins’ dissent implies that Fokker was wrongly decided and that it conflicts with other federal appellate courts. See p. 23 of 28. Judge Srinivasan will NOT be impressed by this argument in deciding whether to grant en banc rehearing. Fokker does not create a split.
Judge Rao goes on to emphasize that while judicial inquiry MAY be justified in some circumstances, Flynn’s situation “is plainly not the rare case where further judicial inquiry is warranted.” p. 6.
Rao notes that Flynn agrees with the Govt.’s dismissal motion, so there’s no risk of his rights being violated. In addition, the Government has stated insufficient evidence exists to convict Flynn. p. 6.
Rao also holds that “a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions.” p. 7.
But by appointing amicus and attempting to hold a hearing on these matters, the district court is inflicting irreparable harm on the Govt. because it is subjecting its prosecutorial decisions to outside inquiry. p. 8
Thus, Judge Rao holds, it is NOT true that the district court has “yet to act” in this matter, contrary to Judge Wilkins’ assertions. p. 16.
“[T]he district court HAS acted here…[by appointing] one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges.” p. 16. This justified mandamus being issued NOW.
Judge Rao also makes short work of Judge Wilkins’ argument that the court may not consider the harm to the Government in deciding whether to grant mandamus bc the Government never filed a petition for mandamus. p. 17.
Judge Rao notes “[o]ur court has squarely rejected this argument,” and follows with a plethora of supporting citations. p. 17.
Judge Rao also notes–contrary to what many legal commentators have misled the public to believe–that it is “black letter law” that the Govt. can seek dismissal even after a guilty plea is made. This does not justify greater scrutiny by the district court. p. 6, footnote 1.
As to Judge Wilkins’ argument that a district court may conduct greater scrutiny where, as here, the Govt. reverses its position in prosecuting a case, Judge Rao points out that “the government NECESSARILY reverses its position whenever it moves to dismiss charges….” p. 13
“Given the absence of any legitimate basis to question the presumption of regularity, there is no justification to appoint a private citizen to oppose the government’s motion to dismiss Flynn’s prosecution.” p. 13.
But Judge Rao saves her most stinging and brutal takedown of Judge Wilkins’ dissent for the end
Judge Rao writes that “the dissent swings for the fences–and misses–by analogizing a Rule 48(a) motion to dismiss with a selective prosecution claim.” p. 17.
While it is true that the Executive cannot selectively prosecute certain individuals “based on impermissible considerations,” p. 18, “the equal protection remedy is to dismiss the prosecution, NOT to compel the Executive to bring another prosecution.” p. 18
And Judge Rao is just getting warmed up here…She then notes that “unwarranted judicial scrutiny of a prosecutor’s motion to dismiss puts the court in an entirely different position [than selective prosecution caselaw assigns the court].” p. 18
“Rather than allow the Executive Branch to dismiss a problematic prosecution, the court [as Judge Wilkins and Judge Sullivan would have it] assumes the role of inquisitor, prolonging a prosecution deemed illegitimate by the Executive.” p. 18
And now for Judge Rao’s KO to Judge Wilkins and Judge Sullivan: “Judges assume that role in some countries, but Article III gives no prosecutorial or inquisitional power to federal judges.” p. 18.
In other words, Judge Rao is likening Judge Wilkins’ arguments, and Judge Sullivan’s actions, to what is done in non-democratic, third world countries. p. 18. Outstanding opinion. No mercy. (Appeals Court opinion re Mandamus, 6/25/2020) (John M. Reeves@reeveslawstl/Twitter)