- The Trump appointee’s decision has been criticized as being ‘antidemocratic’ and ‘dangerous.’
A three-judge panel on the D.C. Circuit Court of Appeals, led by Trump appointee, Neomi Rao, has ordered a trial judge to dismiss the criminal case against President Donald Trump’s former national security adviser, Michael Flynn.
Rao has been receiving a lot of criticism for her order, which exonerates Flynn, one of Trump’s top aides, nearly three years after he pleaded guilty to lying to the FBI regarding his contacts with Russia’s ambassador to the U.S.
The three-judge panel ruled 2-1 that U.S. District Judge Emmet Sullivan did not have the authority to examine the government’s decision to reverse course. Rao delivered the majority opinion. “This is not the unusual case where a more searching inquiry is justified,” she said. “If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice.”
Agreeing with Rao’s decision was Judge Karen L. Henderson, a 1990 appointee of President George Bush. The third judge on the panel — Robert L. Wilkins, — a 2014 appointee of President Barack Obama — dissented.
Although the decision could be seen as a victory for the Trump administration and Flynn, news reports speculate that his troubles could be far from over. The New York Times reports that the full appeals court has the option of reviewing the matter. Adding that Judge Sullivan “did not immediately dismiss the case in response to the ruling,” the Times report said that he “suspended deadlines for further briefs.” The report said Judge Sullivan has set a July 16 hearing in his review, “suggesting he was studying his options or waiting to see what the broader group of judges might do.” If the court decides to review the panel decision, “the ultimate outcome will be in doubt well past the November election,” the Times report said.
Criticizing Rao’s ruling, the Vox said, “the only saving grace” of the court’s decision is that “Rao and Henderson are far-right outliers on the United States Court of Appeals for the District of Columbia. There is a chance that the full court — which has the power to reconsider Rao’s opinion even if no party requests such a reconsideration — will toss Rao’s opinion in the trash.”
The Slate said that the decision “will almost certainly be appealed to the full court and possibly the Supreme Court after that.” However, it warned that if it is upheld, “Rao’s ruling will set a terrible legal precedent. But equally devastating are its broader, long-term implications for judicial independence.”
Rao is fairly new to the D.C. Circuit Court of Appeals, considered the nation’s second most powerful court. She was appointed in March 2019 to replace Justice Brett Kavanaugh, becoming the second Indian American after Sri Srinivasan — who was nominated by President Barack Obama — to sit on the bench of the D.C. Circuit. Rao was previously administrator of the Office of Information and Regulatory Affairs (OIRA).
Indian American Opposition
Rao’s nomination and subsequent confirmation hearing to the D.C. Circuit Court of Appeals was also contentious with Indian American progressives, who joined other like-minded civil rights, women and other minority organizations to halt her nomination. However, their efforts proved futile, since the GOP had the Senate majority.
This is not the first time that Rao has made a ruling benefiting the Trump administration. A proponent of shrinking government, she has argued that the president should be able to remove the heads of independent agencies like the Federal Reserve at will.
Last October, Rao, in her first major ruling, dissented with her colleagues that the president’s accounting firm need not comply with a Congressional subpoena for eight years of his tax and financial records. The case involved a subpoena by the Congressional Oversight Committee chaired by Rep. Elijah Cummings (D-Md.), where the court’s majority affirmed a lower court ruling that denied Trump attorneys’ request for a permanent injunction against the subpoena. However, Rao disagreed, and argued in her dissent that if the House wants to investigate possible wrongdoing by the president, it should do so by invoking its constitutional impeachment powers, not its regular oversight powers.
Rao was born in Detroit, Michigan, to Jehangir Narioshang Rao and Zerine Rao, both Parsi physicians from India. After graduating from Detroit County Day School, Rao attended Yale University. She graduated in 1995 with a BA cum laude in ethics, politics, economics and philosophy. She then attended the University of Chicago School of Law, and graduated in 1999 with a Juris Doctor with highest honors and as a member of the Order of the Coif. Rao then clerked for Judge J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit from 1999 to 2000, then for U.S. Supreme Court Justice Clarence Thomas from 2001 to 2002.
Before joining the Trump administration, Rao was a professor at the Antonin Scalia Law School at George Mason University and focused her research and teaching on constitutional and administrative law. She has the distinction of having served in all three branches of the government. In the George W. Bush administration, she served as associate counsel to the president and then went to work as counsel for nominations and constitutional law to the Senate Judiciary Committee, followed by the clerkship with Justice Thomas and Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit. She also practiced public international law and arbitration at Clifford Chance LLP in London.