A Fordham Law Review article by Professor Jed Shugerman was quoted in a Vox article on the prosecution of Michael Flynn, former National Security Advisor for President Trump.
A federal appeals court’s 8-2 decision in In re: Michael T. Flynn, handed down Monday, affirms — over the objection of two right-wing judges — that the ordinary rules that apply to any other litigant also apply to President Trump’s former national security adviser. Michael Flynn, a former general who briefly served as Trump’s top national security aide, won’t be able to have criminal charges against him dropped before his case is heard by a federal trial judge.
It’s hardly an earth-shattering legal event. But the decision is significant because it unwinds a deeply radical opinion by one of President Trump’s most partisan appointees to the federal bench.
It remains likely that Flynn will escape federal charges that he lied to the FBI. And it is likely that he will do so even though he once pleaded guilty to those charges.
But Flynn, at the very least, will not get a special exception to the rules governing criminal appeals.
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As Fordham law professor Jed Shugerman explained in a 2019 article, for much of the nation’s history, the power to bring prosecutions wasn’t even limited to the government. As Shugerman writes, “for much of English and American history, most prosecution was not an executive function at all because it was a private enterprise.”
Indeed, prosecutions led by lawyers in private practice were the norm for decades after the Constitution was ratified. “The vast majority of American prosecutions were still private through the mid-nineteenth century,” Shugerman explains, “as Allen Steinberg and many other historians have demonstrated.”