Judge Sullivan should dismiss the Flynn case.
It will come as no surprise to anyone who listened to the oral argument (or, ahem, read the coverage of it here at National Review) that the U.S. Court of Appeals for the D.C. Circuit has denied Michael Flynn’s petition for a writ of mandamus against District Court Judge Emmet Sullivan. General Flynn, President Trump’s original national-security adviser, was seeking to persuade the appellate court to order Judge Sullivan to dismiss the case against him on the Justice Department’s motion.
The ruling by the en banc court (i.e., consideration by all ten active Circuit judges who were not recused from the case) was 8–2. As predicted here, a strong majority of the court — whose Democratic appointees easily outnumber their Republican counterparts — lined up against two dissenting Republican appointees. In May, those dissenters, Judges Neomi Rao and Karen L. Henderson, had formed the majority of a three-judge Circuit panel that initially ruled in Flynn’s favor. The panel ruling was vacated when the full Circuit decided to hear the case.
Flynn pled guilty in 2017 to a false-statements charge brought by the Mueller investigation. He subsequently hired new counsel and moved for dismissal of the case based on alleged misconduct by the FBI in the investigation, and by the prosecutors in the court proceedings. Attorney General Bill Barr appointed a Justice Department prosecutor (St. Louis U.S. Attorney Jeff Jensen) to review the case, and the review turned up several investigative improprieties. The Justice Department determined that there had been no underlying basis to investigate Flynn (i.e., there was insufficient predicate to investigate him as a criminal suspect or as a clandestine agent of Russia). From this premise, DOJ reasoned that none of the allegedly false statements Flynn made to FBI agents were material to a matter under investigation — an essential element of a false-statements offense. Prosecutors thus moved to dismiss the case, under Rule 48(a) of the Federal Rules of Criminal Procedure.
In our constitutional system, a decision whether to commence or persist in a prosecution lies solely in the executive’s discretion. Rule 48(a), however, purports to require “leave of court” before a case is dismissed. This provision has been construed as protection for a defendant from prosecutorial gamesmanship in dismissing charges. But when, as in Flynn’s case, the defendant consents to the prosecutor’s motion, there is no constitutional basis for judicial inquiry into the executive decision to dismiss. Nevertheless, Judge Sullivan invited the filing of amicus briefs in opposition to the dismissal; appointed an obviously biased amicus to argue for Flynn’s continued prosecution (former federal judge John Gleeson, who had co-authored an op-ed contending that the dismissal of the case could be corrupt); and absurdly threatened to have Flynn prosecuted for criminal contempt on the theory that, if he was now claiming innocence, he must have committed perjury when he pled guilty.
Flynn thus sought mandamus, an extraordinary writ available only when a lower-court judge’s action is manifestly lawless and will cause irreparable harm, there being no adequate alternative means for the aggrieved party to attain relief.
Today’s ruling is not a surprise because, at oral argument, the judges focused on the fact that Sullivan had not actually done anything of consequence yet. He has threatened to do several peculiar things, but he has not even held a hearing yet, much less ruled against the Justice Department’s motion to dismiss. In its opinion, the majority reasoned that if Sullivan grants the dismissal motion, Flynn would gain the relief he seeks; and even if the judge does not grant it, Flynn could appeal in the normal course. Consequently, in the Circuit’s view, Flynn could not establish irreparable harm or the lack of alternative means (other than mandamus) to seek adequate redress.
To the extent Flynn and the prosecution have complained to the Circuit about Sullivan’s bizarre response to the dismissal motion, including the appointment of amicus Gleeson, the Circuit found that neither Flynn nor the Justice Department had raised these objections in the lower-court proceedings. Mandamus, the Circuit stressed, is not a substitute for the normal process of lodging objections and pursuing appeal at the conclusion of the lower-court proceedings.
The Circuit was similarly unpersuaded that the Justice Department would suffer any irreparable harm. As I explained in the aforementioned column, the Justice Department never filed a mandamus petition of its own; it was content to support Flynn’s petition. If a litigant is going to urge a federal appellate court to take the grave step of issuing a mandamus writ because of some egregious harm claimed to have been done to the litigant, the court would naturally expect that litigant to file a formal petition complaining about the harm — not rely on a third party. The Justice Department’s decision not to file a petition clearly irked some of the Circuit judges; so did the prosecutors’ failure to object in the lower court to the appointment of amicus Gleeson, given that this appointment loomed large in Justice’s argument support for mandamus. The Circuit concluded it was too “speculative” for the DOJ to theorize that Sullivan would inevitably violate separation-of-powers principles by inquiring into executive-branch decision-making. In effect, the judges said: You can come back to us if and when that happens.
One disappointing result is that the Circuit turned a deaf ear to the parties’ complaints about Sullivan’s appointment of amici. Over the years, Sullivan himself has repeatedly rejected applications of amici to intervene in prosecutions, including in the Flynn case, because there is no provision for this in criminal cases. The Circuit’s opinion today endorses such appointments. That means future defendants could face the prospect of being confronted not only by the government’s prosecutorial resources but to fighting off intervening non-parties. The Justice Department, moreover, can expect intervenors who will challenge exercises of prosecutorial discretion. The Circuit suggested that any potential abuses could be dealt with by objections in the lower court. Yet the majority opinion will only encourage such mischief.
Perhaps the least compelling part of the majority opinion is its peremptory pooh-poohing of complaints about Sullivan’s bias against Flynn. The Circuit acknowledges a number of the judge’s unhinged, unfounded remarks about the defendant — e.g., “Arguably, you sold your country out”; and “I’m not hiding my disgust, my disdain for this criminal offense,” which Sullivan imagined might be akin to “treason.” (An absurd statement: This is a one-count false-statements case.) The Circuit makes the commonsense observation that it does not constitute disqualifying bias for a judge to form an opinion about evidence introduced in the case. But Flynn was neither charged with doing nor shown to have done the heinous things Sullivan railed about. And it is odd for the court to wave away any concerns by noting that Sullivan “was not simply holding forth on his opinions” but rather making “statements . . . in the course of formal judicial proceedings over which he presided.” Yeah, that’s the problem!
The Circuit also held that Sullivan should not be disqualified on the theory that, by filing his own motion for the appellate court to reconsider the mandamus petition en banc (i.e., to reject the panel decision), he had become a party to the litigation. As I’ve recounted, it was the Circuit itself that raised this possibility in an order a few days before oral argument. But in its opinion today, the Circuit explained that the en banc review was ordered based on a request by a judge of the Circuit, not on Sullivan’s suggestion. The court further reasoned that, in any event, a judge does not subject himself to recusal by participating in a mandamus proceeding — particularly when the Circuit itself invited his participation.
In covering the oral argument, I observed that the judges plainly took comfort in assurances made by Judge Sullivan’s lawyer, Beth Wilkinson, that if Flynn and the prosecutors simply argued their points to the lower court, there was no reason to believe Judge Sullivan would do lawless things. She stressed that if the law truly called for the granting of dismissal motion, Judge Sullivan would follow the law; and she mocked the parade of horrors predicted by the Justice Department, noting that — regardless of what signals had previously been sent — former judge Gleeson was not seeking to reopen fact-finding and call new witnesses to probe internal Justice Department deliberations.
In today’s opinion, the Circuit does not tell Judge Sullivan how to decide the dismissal motion. As the Circuit points out, an appellate court is a court of review, not of “first view”; its job is to evaluate lower-court rulings after they have been made, based on a concrete record, not to dictate how the rulings should be made before a record is fully developed.
That said, the Circuit is sending a clear signal to Judge Sullivan about its expectations for the future course of the proceedings. Repeatedly, its 18-page opinion notes Wilkinson’s representations on Sullivan’s behalf — no discovery from DOJ is sought, no evidentiary hearing is contemplated, the judge may decide after reviewing the parties’ briefs that he has no questions, the judge may reject amicus’s arguments and dismiss the case, and so on. Without prejudging the issue, the Circuit further held out the possibility that, if Judge Sullivan denies the dismissal motion, the Circuit might entertain review immediately. And even if Flynn were to be sentenced and then appeal, the Circuit would be open to all claims of error — including that Sullivan should not have appointed an amicus.
The Circuit also made clear that it expects Sullivan to get on with it. It concludes the opinion with the following: “We trust and expect the District Court to proceed with appropriate dispatch.”
At the end of my column forecasting that Flynn would lose the mandamus case before the full court, I observed that Judge Sullivan would be much less likely to turn the eventual hearing into a circus, to drag the matter out at Flynn’s expense, and to try to put the Justice Department on trial, if the Circuit gently but prudently admonished him that it would not look kindly on such behavior. To repeat what I’ve said before, the only proper action Judge Sullivan can take at this point is to dismiss the case. Now, let’s see if, as his lawyer committed he would do, the judge follows the law, regardless of what personal feelings he may have about the case.