By Robert Willmann
The audio recording of the oral argument from last Friday, 12 June, in the mandamus action brought by Gen. Michael Flynn in the federal Court of Appeals for the District of Columbia Circuit became available that afternoon . In the dry, almost bland style of most arguments before courts of appeals, it revealed an awkward situation created by Judge Emmet Sullivan for the Department of Justice (DOJ), Flynn, and the Court of Appeals. But not for himself.
Judge Sullivan has been presiding over the criminal case since Judge Rudolph Contreras recused himself in December 2017 shortly after conducting the hearing at which Flynn pled guilty through a plea bargain with "special counsel" Robert Mueller's group. In June 2019, Flynn replaced his original lawyers with new ones, and began to dig into what had happened to him as information started to be disclosed about misconduct by the FBI and others in an investigation of the Donald Trump presidential campaign and Russia. The fascinating developments in Flynn's case have been discussed here on SST after he changed attorneys last year.
The disclosures got so bad that the U.S. Attorney for the Eastern District of Missouri, Jeffrey Jensen, was asked by Attorney General William Barr to check the Flynn case going back to its beginning. Jensen had been both an FBI agent and an Assistant U.S. Attorney before being appointed to his present position. He began to give exculpatory and mitigating evidence to Flynn which had not been previously turned over by the Justice Department and the Mueller group, as required by law. Flynn had filed a request to withdraw his guilty plea, which can be done pursuant to the Federal Rules of Criminal Procedure . What was brought out by Jensen then led to a request by the DOJ to dismiss the case against Flynn entirely.
Normally, this would have ended the whole sordid affair quickly and quietly, since motions to dismiss criminal cases by the government are usually granted; "leave of court" is required for the dismissal . But nothing has been normal about the investigation and prosecution of Michael Flynn.
Suddenly, Judge Sullivan became interested in having outside lawyers file written arguments (briefs) against granting the government's motion to dismiss the case, even though he has lawyers as full time law clerks to do legal research and discuss aspects of issues with him about pending matters.
Five days after the government on 7 May 2020 filed its motion to dismiss in the trial court, Sullivan entered an order saying, in part: "Given the current posture of this case, the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs…. Accordingly, at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs."
But the next day, 13 May 2020, Sullivan appointed John Gleeson, a former federal district court judge, as an amicus curiae (friend of the court). Gleeson jumped right in two days later and said he planned to file a brief. Then on 19 May, Sullivan made a scheduling order saying that Gleeson was to file a brief by 10 June and that any other non-appointed person wanting to file a friend of the court brief shall ask for permission to do so by 10 June as well. Flynn and the government are to file responses to Gleeson's brief by tomorrow, 17 June. Dates for further responses were also set.
Also on 19 May, Flynn filed his petition for a writ of mandamus in the court of appeals.
On 10 June, Gleeson filed his friend of the court brief in the trial court, after getting permission from Sullivan to make it longer than the usual 25-page limit. The brief is 82 pages long, plus 14 exhibits that total 421 pages, although exhibit 14 is the 227-page FBI Domestic Investigations and Operations Guide, with lots of redactions.
Judge Sullivan was sly in the wording of his order appointing Gleeson and in his orders about scheduling. He said that Gleeson as amicus curiae was to "present arguments in opposition to the government's Motion to Dismiss", and shall "address whether the Court should issue an Order to show Cause why Mr. Flynn should not be held in criminal contempt for perjury". He invited other persons to ask for permission to file an amicus curiae brief without specifying the position they should take, as long as they filed their request by noon on 10 June. He scheduled a time for Flynn and the government to file a response to Gleeson's brief, and a date for Gleeson to reply to those responses. He set a time for Flynn and the government to reply to Gleeson's reply. And then he set a date for "the government, Mr. Flynn, and the Court-appointed amicus curiae [to] file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020". He further scheduled "oral argument for July 16, 2020 at 11:00 AM in Courtroom 24A".
You can see how slick that is. Sullivan did not deny the government's motion to dismiss the case. He did not order a criminal contempt proceeding for perjury against Flynn to begin. He did not order Flynn or the goverment to appear in court with certain documents or order certain witnesses to appear and testify at the hearing set for 16 July; he only mentioned "oral argument". He did not say that he was going to grant or not grant the government's motion to dismiss. He did not say he was going to order a criminal contempt process to start, and he did not say that he was not going to order a criminal contempt process to start against Flynn. He did not say that he was going to follow what Gleeson recommended. He did not act like he was going to indefinitely postpone ruling on the motion to dismiss, since he set a hearing for 16 July.
Sullivan presented himself as merely asking for input and suggestions about a couple of issues. But behind the masquerade of reasonableness, he put Flynn and the DOJ on the spot. He raised the prospect of denying the DOJ's motion to dismiss, which would mean he would then likely deny Flynn's pending motions, hold a sentencing hearing, and almost certainly send Flynn to prison. His second issue for Gleeson was a veiled threat that he might initiate a criminal contempt proceeding against Flynn for perjury. He required both Flynn and the DOJ to respond in writing to whatever Gleeson filed as an amicus brief.
The DOJ has to respond to Gleeson's assertion that the reasons in its motion to dismiss were just "pretexts" and were not real and credible, and that filing the request to dismiss was "gross prosecutorial abuse" because the decision to dismiss the case is "based solely on the fact that Flynn is a political ally of President Trump". Flynn has to respond to what was said about the DOJ and also to Gleeson's barefaced accusation that Flynn committed perjury in the court proceedings and obstructed the administration of justice in the court. In addition, Flynn will have to reply to Gleeson's little twist away from a contempt of court proceeding and his suggestion that Flynn's alleged "perjury" be factored into a sentence for the original false statement charge to which Flynn pled guilty under a plea agreement in December 2017. This would of course make Flynn's sentence higher, without the risk that a contested contempt of court trial might end up as an embarrassing spectacle with an ultimate determination of no contemptuous conduct. It is much easier, if you want to try to ram it to Flynn, to insert "information" about alleged perjury into a pre-sentence report, which reduces the ability of a defendant to challenge it.
When Judge Sullivan telegraphed what he was likely up to with his unanticipated love for amicus curiae briefs, Flynn's lawyers could see an ambush coming, and their only move against it was what they did: filing an application for a writ of mandamus in a court of appeals and asking for extraordinary relief in the form of an order to the trial judge to grant the government's motion to dismiss.
As was mentioned here when the mandamus action was first filed, one issue was the fact that Judge Sullivan had not yet ruled on the motion to dismiss, and an argument could be made that the petition for mandamus was premature; perhaps he would end up dismissing the case . This question came up during the oral argument last Friday.
The way Sullivan set up his dislike for the motion to dismiss makes it awkward for the court of appeals. Usually, a mandamus is sought when a lower court judge has made an order that is especially objectionable, and addressing it in an appeal when the case is over in the trial court is not "adequate" under the circumstances. An appellate court will order that the ruling be cancelled or a different one be made. Or, if the lower court is refusing to rule on an item or do a required act, or is delaying doing so for too long a time, the court of appeals will order that the judge make a ruling on the item or do the required act.
The court of appeals will decide soon. A mandamus is an "extraordinary writ" and is given preference over ordinary civil cases . They could deny the petition without prejudice because no ruling has been made on the motion to dismiss and say that a new petition could be filed depending on what happened in the trial court, which would be a big hint to Judge Sullivan to be careful about what he does. They could try to split the difference and give some direction on the amicus curiae briefs and the contempt of court and perjury issues, but that would require crafting detailed instructions on those matters. They could order that the case be transferred to a different judge and name a new judge from outside of Washington D.C. who has had no connection with the DOJ or any of the law firms in Washington or New York, or with any of the lawyers who were in the Mueller group, and have the new judge sort it out. Or, they could grant the mandamus and order that Sullivan dismiss the case as requested by the DOJ, since there is probably enough flexibility in the federal mandamus doctrine and in the constitutional structure of the separation of powers to do so, but they would have to write on and resolve the issue that nothing has happened yet on the motion to dismiss in the trial court.
I think that when Flynn filed the petition for a mandamus, it caught Judge Sullivan, the DOJ, the Mueller group alumni, John Gleeson, and everybody else flat-footed. They were not expecting it. Regardless of the outcome of this move, it has slowed the train down and has surely affected the perspective of the others involved.
 The oral argument before the D.C. Circuit Court of Appeals can be downloaded from the first link or listened to with the second one.
 Federal Rule of Criminal Procedure 11(d)(2)(B)
 Federal Rule of Criminal Procedure 48(a)
 Federal Rule of Appellate Procedure 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs.