NRPLUS MEMBER ARTICLE G eneral Michael Flynn is going to lose the battle. That was the takeaway from Tuesday’s hearing before the D.C. Circuit U.S. Court of Appeals. Flynn will eventually win the war, but President Trump’s first national-security adviser is still in a slog, and there are more scraps ahead.
The battle in question is Flynn’s petitioning of the D.C. Circuit to issue a writ of mandamus against federal district judge Emmet Sullivan. Mandamus is an extraordinary remedy. It is something of a last resort, when a judge is acting so lawlessly that the damage could be incurable if a higher court fails to intervene. Here, the writ would direct Judge Sullivan to end his highly irregular inquiry into the Justice Department’s motion to dismiss the case against Flynn and just grant that motion, as the law requires.
Flynn will eventually prevail in having the case dismissed, because he has an ace in the hole: If all else fails, the president will pardon him. Meanwhile, maybe Sullivan will grant the dismissal motion, as the judge’s lawyer hinted at the hearing. If he does not, maybe there will still be time for Flynn to win a reversal on appeal — an eventuality that some circuit judges suggested but that, practically speaking, may hinge on whether President Trump is reelected (if Trump loses, he’d have to pardon by January 20). Naturally, Flynn would rather not go the pardon route; there is more vindication if the case is formally dismissed on the motion of the prosecuting authority that brought it.
The specter of a pardon has a distorting effect on the proceedings. It has emboldened Sullivan — an erratic, irascible man who has been a judge for 36 years — to unleash his inner crazy, knowing it won’t make a difference in the end. The circuit judges are more tentative than they might otherwise be in reining him in.
That is this analyst’s conclusion after listening to Tuesday’s oral arguments, a nearly four-hour affair. Counsel for Flynn, the Justice Department, and Sullivan presented arguments to, and were exactingly questioned by, ten appellate judges. Though designed to be a face-to-face court proceeding, the en banc (or full court) hearing was conducted by audio teleconference. Things went fairly smoothly, though there were the occasional technical glitches and cacophony of competing voice-overs to which the COVID-19 era has inured us.
Flynn won’t win, but he should. He did, in fact, win the first round, before a three-judge panel. This divided ruling was vacated, however, when the full D.C. Circuit — ten judges, because an eleventh is recused — agreed to reconsider it, on the highly unusual motion of Sullivan, the district judge against whom the panel’s mandamus writ was issued.
Disqualification, a Red Herring
The fact that Sullivan himself moved for en banc review prompted the question of disqualification. The issue, however, seemed more intriguing in the run-up than it proved to be at the hearing.
As I recounted last weekend, the circuit, just a few days before the hearing, issued an order intimating that Judge Sullivan might need to recuse under the federal statute that governs disqualification. The order was cryptic, and an outsider never knows exactly what to make of such signals. Did it mean a critical mass of the judges were concerned, or was the full court merely humoring one or two of their colleagues who thought disqualification should be addressed? Or was the court hoping Sullivan would take the hint and recuse himself, sparing the appellate judges the unwelcome task of assessing his strange comportment?
In the event, it was a red herring. I had theorized that the circuit, by forcing Judge Sullivan to seek en banc review himself (when none of the appellate judges asked for it), had put him in the position of being a litigant; the law requires the disqualification of a judge who becomes a party to the case. But Sullivan’s counsel pointed out that it was the circuit’s own three-judge panel that initially ordered him to respond to Flynn’s mandamus petition — he was planning to ignore it, as he hoped the circuit would. And even though Sullivan did seek full-court review of the panel’s ruling, how could the court compel him to act like a litigant and then pull the rug out from under him when he complied? This seemed to satisfy some of the judges, who pooh-poohed disqualification and conceded that Sullivan had not made himself a party in the case.
Another part of the statute requires a judge’s recusal any time his impartiality might be questioned. Yet neither the Justice Department nor Flynn had formally moved to disqualify Sullivan. That may seem odd to the layman, but it makes practical sense. As Emerson observed, “When you strike at a king, you must kill him.” Experienced litigants never seek a judge’s disqualification unless there is no alternative and they are certain to win on the issue — because if you lose, you are going to have one very angry judge deciding your fate.
Taking her cue from the circuit’s pre-hearing order, Flynn’s counsel, Sidney Powell, told the judges that Sullivan should be disqualified. But Flynn’s bridge is already burned. In stark contrast, the Justice Department has many other cases before Judge Sullivan. It has not sought his disqualification, and the topic was not mentioned in acting solicitor general Jeffrey Wall’s presentation; he gingerly weighed in on it only when prodded by Judge Karen Henderson (who was in the panel majority that ruled against Sullivan, and who seemed more interested in the recusal issue than did her colleagues). Wall took pains to say that Sullivan had not exhibited actual bias. He made a half-hearted nod in the direction of questioning Sullivan’s impartiality, but recusal was not a hill he was prepared to die on.
The Justice Department’s Mandamus Dance
The Justice Department’s reticence is not limited to recusal. More consequential is the fact that the solicitor general has never formally moved for a writ of mandamus against Sullivan. When asked about this, Wall brushed it off as an irrelevant technicality, just as he did two months ago when the petition was argued before the panel. He insists it’s not a big deal because the Justice Department has supported Flynn’s petition — albeit only after the panel asked for its input. But if it’s not a big deal . . . then why not file the petition? After all, some of the circuit judges are clearly annoyed about being asked to rebuke a fellow jurist when a party aggrieved by Sullivan’s conduct — the executive branch, whose constitutional power to end a prosecution is being usurped — never bothered to seek the writ. I suspect the cynic in the circuit judges (like the cynic in me) wonders whether Justice’s clever lawyers are trying to have it both ways — nudge the circuit into issuing the writ, but assure Sullivan that they never asked for the writ.
Wall is a superb lawyer, and he may be right that Justice has made exactly the same arguments it would have made if it had formally petitioned for the writ. But the solicitor general’s posture has the feel of gamesmanship. It has at least some of the judges miffed.
Judge Sullivan’s Alternative Universe
Beyond that, we need to distinguish two things: The merits of the mandamus petition versus the merits of Justice’s motion to dismiss the case — i.e., the motion Sullivan has failed to grant and signaled he would not grant, which is what prompted Flynn to seek mandamus.
Wall stressed that the panel’s ruling granting mandamus should have remained undisturbed. Never before, he asserted, has a district judge, on his own motion, been granted en banc reconsideration of such a panel ruling. The Justice Department’s research indicates that only one other judge has ever tried, and that judge was rebuffed. By contrast, Sullivan’s lawyer, Beth Wilkinson, emphasizes: Never before has a circuit court issued a writ of mandamus against a district judge who has not yet even conducted a hearing on a dismissal motion, much less denied it.
So, it’s a contest of the “never befores.”
Wilkinson’s claim returns us to the topic of gamesmanship. After she made her pitch on Sullivan’s behalf, one could detect a trace of pique in the unflappable Wall’s closing argument. Wilkinson is a very able advocate, but to hear her describe how Sullivan has presided over the case, after watching how Sullivan has presided over the case, was to be transported to an alternative universe.
In her argument, Wilkinson feigned astonishment that anyone could possibly imagine the highly experienced, well-respected judge would do anything other than follow the law — and if the law requires dismissal, well then, by God, how could anyone think he wouldn’t dismiss? Indeed, she tartly observed that Sullivan originally wanted to conduct his hearing on the Justice Department’s dismissal motion in mid-July; had Flynn not sought mandamus, had the Justice Department not gone along, and had the circuit had not indulged what she described as the baseless, overwrought petition, this case might have been over a month ago.
If you’re keeping score, early in the proceedings, the highly experienced judge did not seem to have taken the few minutes he would have needed to review the file he’d inherited. Sullivan wildly implied that Flynn — a decorated 30-year combat commander, who is charged with a false-statements process crime that interviewing agents did not think he committed and that had no obstructive effect whatsoever on the Trump–Russia investigation — had “sold your country out” and might be guilty of “treason.” The judge eventually apologized, adding that he “felt terrible about that.” I’m sure that made General Flynn feel much better.
In more recent times, Sullivan has floated the nearly equally lunatic notion that Flynn should be prosecuted for contempt due to his “perjury” because — like a zillion other defendants, including an untold number during Sullivan’s long tenure — Flynn initially pled guilty but later moved to withdraw his plea and claimed innocence. In the interim, Sullivan appointed an amicus curiae (friend of the court), former federal judge John Gleeson, a partisan Democrat selected for the gig only after co-authoring a Washington Post op-ed that accused the Trump administration and its Justice Department of corruption in dropping Flynn’s case.
The role assigned to Gleeson by Sullivan is to argue against dismissal — i.e., to act as a court-appointed prosecutor against Flynn, under circumstances where the only authority with constitutional power to prosecute, the Justice Department, has announced it is dropping the case. Gleeson’s 73-page brief conveys that he expects to challenge the Justice Department’s explanation of its legal theory that Flynn is not guilty of the false-statements charge, its assessment of the strength of the case, its decision that pursuing the case would not be a meritorious expenditure of its resources, its internal deliberations about the case, and its motives for dismissing it — though Gleeson ultimately backtracked, at least for now, on the suggestion that he would subpoena witnesses and conduct additional factfinding.
Sullivan also invited other amici to weigh in, notwithstanding that there is no rule permitting amicus briefs in criminal cases (the defendant in such a case already has to contend with the limitless resources of the Justice Department). This was remarkable because, to quote a Judge Sullivan ruling, “The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases”; consequently, the judge has denied dozens of applications to file amicus briefs, including in the Flynn case.
Yes indeedy, how could anyone possibly get the nutty idea that straight-arrow Sully plans to do anything other than follow the law and dismiss the case?
Not a Thought Crime
There is no doubt about the lawlessness of what Sullivan has contemplated doing. To state succinctly what I’ve covered in other columns (e.g., here), to the extent Rule 48(a) purports to require “leave of court” before the Justice Department may dismiss a case, it unconstitutionally infringes on the executive authority — at least in a case where the defendant agrees to a dismissal that will end the case with prejudice (i.e., where the prosecutor is not violating due process by dismissing to get a tactical advantage). In a case such as Flynn’s, the presiding judge must grant the dismissal.
During the argument, some circuit judges took umbrage at this image of the lower court reduced to a rubber stamp. But that is not Flynn’s or Justice’s doing; it is what happens when Congress enacts a constitutionally dubious rule that should not have brought the court into the dismissal equation in the first place.
That is why Flynn should win the case. But, to repeat, winning the case is different from winning the mandamus.
I italicized has contemplated a moment ago because, if I may analogize to penal law, a “thought crime” is not enough for mandamus. Yes, Judge Sullivan has set the stage for a travesty, but he has not actually done anything irreparable yet.
Reluctant to think ill of their longtime fellow jurist, most of the circuit judges seem prepared to suspend disbelief and accept Ms. Wilkinson’s assurance that Sullivan will follow the law. And even acting solicitor general Wall concedes that it is proper for a judge to hold some kind of hearing on a dismissal motion, although for nothing other than the limited purpose of making sure the judge understands the Justice Department’s rationale. (In Flynn’s case, it would also be proper to hold no hearing, given that the prosecution’s very detailed submission elucidates that no tactical advantage is sought over Flynn and shows that the Justice Department has proper reasons — even if Sullivan disagrees with them.)
A mandamus writ is supposed to issue only if there is no adequate alternative relief. Flynn can’t really make that showing because if Sullivan grants the dismissal motion, Flynn gets exactly the result he wants. The Justice Department could complain that the executive is already being damaged by the hearing process Sullivan is putting in place; but again, Justice did not seek mandamus. And if Sullivan retreats and grants the motion, the way Wilkinson suggests he might, Justice won’t have much to complain about.
On the other side of the mandamus ledger, the circuit has to be concerned that granting the writ would open the floodgates to other litigants who seek to appeal right away whenever the district judge allegedly makes an error. The regular, orderly appellate process calls for waiting until the end of the district-court proceedings to raise all claims of error. Circuit Judge Merrick Garland seemed especially concerned that such a precedent could not easily be limited.
Back in Judge Sullivan’s Court
To summarize, I expect the full court will rule against mandamus, probably by a 7–3 or 8–2 vote, along the party lines of a circuit that tilts heavily Democratic. The two Republican appointees who formed the panel majority in favor of issuing the writ will no doubt dissent, and perhaps pick up another vote or two, but no more. It will be interesting to see whether a majority opinion, while denying the writ, admonishes Sullivan that a judge (a) should afford the executive branch a presumption of good faith, (b) should not second-guess the executive’s reasoning or probe its motives in dismissing a prosecution, and (c) may not appoint amici to serve as parallel prosecutors.
Once mandamus is denied, the Flynn case will be sent back to Judge Sullivan. Will he drag his feet to make General Flynn sweat it out? The circuit court indicated disapproval of that prospect. Will Sullivan, despite all the rabble-rousing, just grant the dismissal motion without much more fanfare, as his lawyer suggested he might? That would be a pleasant surprise, but I’m not holding my breath. Will the judge turn the hearing into a circus and try to put the Trump Justice Department on trial? It remains a possibility, though less of one if the circuit prudently warns against it. Will Sullivan deny the dismissal motion and perhaps even try to sentence Flynn? I have to think the Justice Department would petition for mandamus at that point, and its case would be strong. Or would Justice and/or Flynn then ask the judge to impose sentence quickly, rather than put it off for a few months? That way, if President Trump loses the November election, Flynn might still have time to appeal such lawlessness and get a reversal that would obviate the need for a pardon.
Lots of questions. They cannot be answered until the ball is back in Judge Sullivan’s court. Unfortunately, I’m convinced that the D.C. Circuit will soon toss it back there.