Judge Sullivan created an awkward situation for the DOJ, Michael Flynn, and the Court of Appeals

Michael_flynn_web

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 [1].  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 [2].  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 [3].  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 [4].  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 [5].  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.

 

[1]  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.

https://www.cadc.uscourts.gov/recordings/recordings.nsf/DocsByRDate?OpenView&count=100

https://www.cadc.uscourts.gov/recordings/recordings2019.nsf/FB1BF1063411B091852585850056852D/$file/20-5143.mp3

https://turcopolier.typepad.com/files/michaelflynn_court_minutes_argument_held.pdf

[2]  Federal Rule of Criminal Procedure 11(d)(2)(B)

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18a-node35-title4-rule11&num=0&edition=prelim

https://www.law.cornell.edu/rules/frcrmp/rule_11

https://turcopolier.typepad.com/sic_semper_tyrannis/2020/01/michael-flynn-seeks-to-withdraw-his-guilty-plea.html

[3]  Federal Rule of Criminal Procedure 48(a)

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18a-node35-title9-rule48&num=0&edition=prelim

https://www.law.cornell.edu/rules/frcrmp/rule_48

[4]  https://turcopolier.typepad.com/sic_semper_tyrannis/2020/05/michael-flynn-files-a-new-action-in-a-court-of-appeals-about-the-motion-to-dismiss-and-the-appointment-of-an-amicus-curiae.html

[5]  Federal Rule of Appellate Procedure 21.  Writs of Mandamus and Prohibition, and Other Extraordinary Writs.

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28a-node6-titleV-rule21&num=0&edition=prelim

https://www.law.cornell.edu/rules/frap/rule_21

 

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6 Responses to Judge Sullivan created an awkward situation for the DOJ, Michael Flynn, and the Court of Appeals

  1. Avatar walrus says:

    The corrupt and despicable charade against Flynn conducted by at least the FBI and the so called courts of justice in the United States has destroyed any possible semblance of the idea that there is equal justice under the law or the laughable notion that anything remotely like a fair trial is available to anyone for any alleged offence at all.
    The message contained in this prosecution and those of other Trump supporters is quite clear: any person who attempts to assist a political candidate not approved by so called liberals will be punished. Flynn is an example of what will happen to Trump backers in future.
    I am amazed at the staying power of SST member Robert Willmann in even reporting this disgusting slow motion attempted lynching.
    To put that another way, I now understand why suspects in the USA occasionally risk their lives by running from Police – they reason it is unlikely they will ever receive a fair trial.
    The net effect of all these so called legal procedures is to destroy what little is left of America’s international legal reputation that reached its highest point at the Nuremberg trials. That will not be to our advantage when, instead of shredding international treaties, we one day seek to negotiate the same.

  2. Avatar Brian B says:

    The FBI is the secret police working on behalf of the interests of the oligarchs. The federal courts role is to implement and enforce the interests of the oligarchs. The Supreme Court’s role is to come up with legal mumbo jumbo to justify this tyranny of the minority.
    All the judges in this case (Sullivan, Wilkins, Rao) as merely proxy warriors, tools of the oligarchs. It’s not coincidental they are also ‘people of color’. This has been the m.o. of the oligarchs for over a hundred years. It was the Spingarn brothers (two lawyers from a rich Jewish family) who started the NAACP with their front man, the mixed race W.E.B. Du Bois. The first mission of the NAACP, and the task assigned to Du Bois, to destroy Booker T. Washington who had a large following in the black community and was advocating for more harmonious race relations. The oligarchs (Spingarns, et al.) running the NAACP needed to silence Washington because they wanted to create more racial division to gain power and subvert American culture. You can read more about this fascinating history in Catholic historian E. Michael Jones’ “The Jewish Revolutionary Spirit” (Fidelity, 2008), pp. 679-715; 745-793; 831-843.
    Here’s a good interview where Jones touches on a lot of this in an interview with Dr. Kirk Meighoo (Indo Caribbean Diaspora News): https://youtu.be/gtdWbTkBQxk

  3. Avatar Keith Harbaugh says:

    Some references concerning the Flynn situation that might be useful:
    1. While I certainly don’t agree with the general positions of Benjamin Wittes (the major domo of Lawfare) he does give an excellent play-by-play summary of Friday’s 2020-06-12 mandamus hearing before the D.C. Circuit Court:
    https://www.lawfareblog.com/oral-argument-summary-re-michael-flynn
    He makes some judgement calls on what is “irrelevant” and “without basis”, but those subjectivities are obvious, and the general summary of the thrust-and-parry of the 100-minute hearing is quite helpful.
    2. A very articulate and knowledgeable analysis of the current Flynn situation , from the pro-Flynn side, is given in this one-hour video from Jay Sekulow et al.:
    https://youtu.be/tqRwPTkPfMc
    The glaring problem with that video is that about half of it is grating (IMO) appeals for financial support.
    But the other half contains quite interesting arguments from competent legal professsionals about how messed-up this situation is.
    For example;
    David A. O’Neil, one of the signatories of the Gleeson “friend of the court” brief, was a lawyer for Sally Yates.
    https://www.courthousenews.com/lawyer-says-white-house-stopped-yates-testimony/
    So a “friend-of-the-court” is a former lawyer for Sally Yates.
    Hmmm.
    The people in that video raise a number of similar issues.
    (If Mr. William has opinions on that video, I would certainly be interested in hearing them.)
    3. There is a webpage which summarizes that video:
    https://aclj.org/constitution/radio-recap-exclusive-analysis-what-comes-next-in-the-michael-flynn-saga

  4. Avatar Jim says:

    I listened to last Friday’s hearing live and Judge Rao acted like a judge, unlike her two cohorts on the DC appeals circuit viz. the Mandamus.
    The other female judge referred to lovingly to Sullivan as an “old hand.”
    The male judge acted like he was prosecuting Gen. Flynn’s attorney, and is a judge in name only, as is Sullivan at this point.
    I would not put Rao in the same category as the above rascals.
    Should there be an opening on Supreme Court and Trump is still in office, she would be an excellent choice.
    In fact, I would like to see her replace Roberts as Chief Justice. He is in many ways an abomination.

  5. Avatar English Outsider says:

    Couldn’t bring the transcript up for some reason so listened to the recording instead. Glad I did. Very impressive bunch of people, picking up on points lightning fast and seemingly with computer-like memories. Due process in all its majesty.
    For all that the thing seemed a charade. Here’s a man, General Flynn, who’s demonstrably been the target of entrapment. Not only that, he’s been subject to quite improper arm-twisting to get him to accept plea bargaining. He’s collateral damage in some political nonsense in Washington and is even now being put through the wringer as the Courts conduct further arcane manoeuvres. Where’s any pretence of equity in all that?

  6. Avatar robt willmann says:

    Keith Harbaugh,
    Yes, after this latest bad business began right after the government moved to dismiss the case against Flynn, some lawyers of interest started to come out of the woodwork. Beth Wilkinson is another one; she showed up to represent Judge Sullivan in the mandamus action in the court of appeals.
    I will watch the video of Jay Sekulow.

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