Get out the rubber stamp.

Or at least that's the role Judge Neomi Rao of the U.S. Court of Appeals for the D.C. Circuit would assign to trial court judges when prosecutors decide to dismiss a case.

In a decision that's rightly triggering an outpouring of criticism, the Donald Trump appointee on Wednesday handed Michael Flynn and Bill Barr's Justice Department a shocking win. Joined by a fellow conservative, Judge Karen LeCraft Henderson, Rao ordered trial court judge U.S. District Judge Emmet Sullivan to grant the government's motion to dismiss its case against Flynn, who briefly served as President Trump's first national security advisor.

"An excrescence," is how Norm Eisen, a White House lawyer in the Obama administration, described Rao's decision in a tweet. "It guts one of the most important safeguards of our democracy: an independent judiciary."

"This is a terribly weak, and profoundly antidemocratic, decision," tweeted Hogan Lovells partner Neal Katyal.

"Just making up law as she goes along," added Fordham law professor Jed Shugerman.

Judge Robert Wilkins offered a strong dissent—perhaps a sign that the D.C. Circuit might agree to rehear the case en banc.

"It is a great irony that, in finding the district court to have exceeded its jurisdiction, this court so grievously oversteps its own," wrote Wilkins, who was appointed by President Barack Obama. 

A brief refresher on the underlying case: Flynn in late 2017 pleaded guilty to making false statements to federal investigators. However, Sullivan delayed sentencing him because (haha no) he was supposed to be cooperating with the feds.

In January of 2020, Flynn after firing his previous counsel from Covington & Burling asked to withdraw his guilty plea. And on May 7, the Justice Department moved to dismiss the case, claiming that based on newly discovered evidence of misconduct by the FBI, the prosecution could no longer prove beyond a reasonable doubt that any false statements made by Flynn were material.

Mmmkay … right.

But Federal Rule of Criminal Procedure 48(a) requires the government to obtain the "leave of court" before handing out Get-Out-of-Jail-Free cards.

That's what Sullivan was weighing here, because let's face it—the whole thing looks suspicious.

Sullivan appointed Debevoise & Plimpton partner John Gleeson, a former federal judge, as amicus to oppose DOJ's move. 

Hoo boy did he ever. "The government has engaged in highly irregular conduct to benefit a political ally of the president," Gleeson wrote, calling DOJ's conduct "corrupt," "politically motivated" and a "gross abuse of prosecutorial power."

At this point, all Sullivan wanted to do was hold a hearing on July 16 to probe DOJ's motion to dismiss. Who knows, maybe he'd have concluded it was totally fine. But he didn't get to make that call. Instead, Flynn's lawyer Sidney Powell went crying to the D.C. Circuit with a mandamus petition.

Rao allowed it, and basically poo-pooed the Rule 48 "leave of court" requirement, writing that decisions to dismiss fall squarely within the ken of prosecutorial discretion.

"Flynn agrees with the government's motion to dismiss, and there has been no allegation that the motion reflects prosecutorial harassment," she wrote. She also bought the government's argument that newly discovered evidence casts Flynn's guilt into doubt. (Side note: Did she even read Gleeson's amicus brief? Because with devastating effect, he totally destroyed that contention.)

There's an even bigger issue in play. Mandamus is supposed to be a "drastic and extraordinary remedy." Rao justifies it here "to prevent the judicial usurpation of executive power," and argues that Sullivan was out of line when he appointed Gleeson. 

Maybe so. But that's no excuse.

In his dissent, Wilkins lays out what makes it all so troubling.

"This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling," he wrote.

It's also "the first time any court has held that a district court must grant 'leave of court' pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy."

Rao in attempting to respond to Wilkin's dissent only underscored the flaws in her decision. The executive branch, she asserts righteously, is entitled to deference here based on a "presumption of regularity."

Um hello? Has she met the Trump administration? 

Sorry, but nothing is regular anymore—and the judicial branch should know it.

See also: Divided DC Circuit Orders Flynn Judge to Dismiss Prosecution at Trump DOJ's Request