You know that something is wrong when you have to watch the appellate courts to know what is happening in the White House. And this week has already seen several interesting rulings.
The biggest — because it is from the full U.S. Circuit Court for the D.C. Circuit — concerns the Michael Flynn case. As you may recall, Michael Flynn (National Security Advisor for a day) pleaded guilty to charges of lying to federal agents as part of the Mueller investigation. After Mueller wrapped things up and turned things over to the career prosecutors, William Barr became Attorney General of Trump and decided to start undoing what he could of the Mueller investigation and prosecutions. Rather than proceeding with sentencing of the admitted criminal, A.G. Barr is willing to allow Flynn to withdraw his plea on a flimsy theory and then dismiss the charges. Because this seems fishy and motivated by something other than normal prosecution operations, the judge who took Flynn’s plea decided to appoint an attorney as amicus curiae (literally friend of the court) to brief why the plea should stand and the request to dismiss the case should be denied. (This procedure is not unusual at tbe appellate level. Typically, once or twice a year, the Supreme Court will appoint an attorney to defend a lower court decision when both sides contend that the decision below was erroneous. Rarely does the appellate court side with the amicus, but it does make sure that the best arguments in favor of the lower courts decision are heard.)
Mr. Flynn and his friends in the administration did not like this road bump in their attempt to wipe away any incentive for Mr. Flynn to decide to start telling the truth about his ties to Russia; so Mr. Flynn filed what is called a petition for writ of mandamus (essentially an order directing a lower court or government agency to do a specific act which contrasts with an injunction which orders a party not to do something). Mr. Flynn got very lucky with the initial panel assignment somehow ending up with the two Trump appointees to the D.C. Circuit on his three-judge panel. And the initial panel voted 2-1 to grant the petition and order the trial judge to grant the motion to dismiss. The rest of the judges on the D.C. Circuit on their own motion decided to take the case from the panel and conduct a rehearing “en banc” (that is in front of all of the regular judges of the court). On Monday, the full D.C. Circuit issued its ruling — an 8-2 decision denying the petition.
It is important to note how limited this ruling is. The ruling essentially holds that the petition for writ of mandamus is premature. The majority does not see any problem with the procedures that the trial judge is following to decide whether to grant the motion to dismiss. The opinion does suggest that the trial judge should be appropriately cautious and deferential to the proper role of a prosecutor in deciding whether to grant the motion to dismiss, but it recognizes that the purpose of any such hearing is to more fully develop the issues. If, after the hearing, the judge grants the motion to dismiss, Mr. Flynn and the government have gotten what they want. If, instead, the judge denies the motion to dismiss and proceeds to finally impose sentence, the parties can challenge that ruling at that time. For a simple opinion emphasizing the proper role of judicial restraint, the two Trump appointees felt the need to explain at length why they decided to act prematurely in defense of the President who appointed them despite the usual rules of practice.
The next step in this case depends on Mr. Flynn. He can ask to put this ruling (and the trial court’s ruling) on hold while he files appropriate papers with the U.S. Supreme Court. If he does that, however, it is likely that he will not get a ruling until November (or later) by which time the new Attorney General and U.S. Attorney for the District of Columbia will have withdrawn the motion to dismiss. Or he can hope for the best at the hearing on the motion to dismiss. Maybe, the trial judge will read between the lines of the opinion and see that the D.C. Circuit is unlikely to rule in his favor on a proper and timely appeal.
The second case this week from Trump world was an actual appeal concerning the power of Congress to compel testimony from former White House counsel Don McGann. This is the second time that this panel has looked at this case. The previous time resulted in the whole court issuing an en banc decision disagreeing with the panel’s opinion that Congress lacked standing (a legally recognized interest) in enforcing its own subpoenas. This time, the panel went with the somewhat safer ground that there is no statute expressly authorizing the House to seek judicial enforcement of a subpoena. This position has some legal authority behind it as there is a specific section of the United States Code that permits the Senate to seek judicial enforcement of the subpoena. Under the 2-1 decision of this panel, the House’s sole remedy in response to a party disobeying a subpoena is to exercise its inherent power to hold that person in contempt.
While the House could again seek rehearing by the entire court, the clock has essentially run out on the ability to force this testimony prior to the election. It is always possible that the new Congress in January will issue a new subpoena and that the new Congress will fix the problem noted in this opinion. The long fight over this subpoena shows how little power Congress has in dealing with an administration that chooses to ignore the law.
Finally, a panel of the Second Circuit split the baby down the middle on the Trump tax returns case involving the Manhattan District Attorney. On the one hand, it stayed the enforcement of the grand jury subpoena. On the other hand, it set a very quick briefing and argument schedule with the case to be argued on September 25. Again, particularly with grand jury secrecy rules, we are unlikely to see any tax returns before the election, but there is a very good chance that Donald Trump could go directly from the White House to a Manhattan courtroom on January 20.
