Michael Flynn files a new action in a court of appeals about the motion to dismiss and the appointment of an “amicus curiae”

By Robert Willmann

Yesterday afternoon, Gen. Michael Flynn (ret.) filed a new legal action in the federal Court of Appeals for the D.C. Circuit asking the appellate court to issue an order directing that three things happen in the trial court.  First, the cancellation of the appointment of an outside lawyer who is to argue against the government's motion to dismiss the case and advise about whether a contempt of court proceeding should occur about possible perjury by Flynn.  Second, the government's request be granted to dismiss the criminal case.  And third, that the case be transferred to a judge different from Emmet Sullivan, who is currently presiding in the trial court.

The filing is a petition or an application for a writ of mandamus.  It is a new mini-lawsuit that starts in a court of appeals and is not an appeal out of a trial court while a case is still underway in the trial court.  When specifically authorized by law, you can appeal to a court of appeals while a case is going on in the trial court, and it is called an "interlocutory appeal".  But this is a new legal action asking that a court of appeals order a trial judge to do some specific thing.  As you might expect, the requirements to ask for a writ of mandamus make it a very limited and narrow doctrine.  Otherwise, people would be asking a court of appeals to intervene constantly whenever they did not like the ruling of a judge while a case was pending in the trial court and before it ended there.  A writ is a type of court order. 

The mandamus doctrine in federal court has three parts:  the petitioner must have no other adequate means to attain the relief he desires; the petitioner must show that his right to the writ is clear and indisputable; and the court in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances [1].  The mandamus doctrine in Texas is more open and flexible and has two parts:  the petitioner has no adequate remedy by appeal for the trial court judge's alleged error; and the trial judge showed an abuse of discretion, violated a legal duty, or made a void order.  Although the doctrine may be phrased differently in states around the country and in federal court, the different versions establish the same basic concept.

Since a court of appeals does not conduct trials, an application for a writ of mandamus has to be supported by some proof, which consists of exhibits attached to it.  This request is 44 pages long, and the exhibits, as an appendix, total 93 pages.  Here is the entire filing, as one document in the pdf computer file format–

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

Flynn's petition cites two appellate court opinions that provide the best support for his position.  The Fokker Services B.V. case stated strongly that the executive branch's decisions on what to charge and to dismiss are within its discretion, and a motion to dismiss by the government should not be denied unless it is part of a game of harassment against a person by bringing charges and then dismissing them, and then charging the person again and dismissing the case, repeatedly.  That game would harass a defendant and prevent a trial at which the right against double jeopardy would attach.  A unanimous U.S. Supreme Court opinion from two weeks ago directly disapproves of a situation similar to Judge Sullivan's order appointing John Gleeson to be an outside "amicus curiae" (friend of the court), who can also inject a new issue into the case [2].

At this time, Judge Sullivan has not yet denied the government's motion to dismiss the prosecution. That may be an item that is debated.  The argument may be made that he has not yet stepped on the discretion of the executive branch to charge or dismiss criminal cases; he might theoretically end up granting the motion to dismiss.  However, the facts in this case show that if he denies the motion to dismiss, a mandamus order would be justified against his ruling, as was discussed in the Fokker Services B.V. opinion.  And Flynn can argue that he has no other "adequate" means to relief if he has to wait to be sentenced to prison before he can ask for a writ of mandamus that should properly be granted under existing law.

The exhibits to Gen. Flynn's petition are as follows.

The first exhibit is a transcript of the sentencing hearing of 18 December 2018 that went off the rails and was continued into the future.  Flynn had pled guilty on 1 December 2017. The transcript is 51 pages and the court reporter's index is 11 pages; the exhibit is on pdf pages 47-109.

Exhibit 2 is the notice by former "Watergate Prosecutors" that they intended to file an amicus curiae brief. It is on pdf pages 110-119.  These papers are not in the trial court clerk's public file because Judge Sullivan ordered that they not be.  But copies were given to Flynn's lawyers as required in court cases, so they are included as an exhibit to this application for a writ of mandamus.

Exhibit 3 is the order of Judge Sullivan from 12 May 2020 that kicked off this latest twist in the case over bringing in outside lawyers to give opinions about what should happen. 

Exhibit 4 is the order that appointed John Gleeson to be the person to argue against the government's motion to dismiss, and, further, for him to suggest whether a criminal contempt of court proceeding should be started against Flynn for perjury. The exhibit is on pdf pages 122-124. 

The last exhibit is 12 pages of some government motions to dismiss and orders granting dismissals in other criminal cases.

[1]  United States v. Fokker Servs., B.V., 818 F.3d 733 (D.C. Cir. 2016), an opinion from the federal Court of Appeals for the D.C. Circuit.

[2]  United States v. Sineneng-Smith, No. 19–67 (U.S. May 7, 2020), a U.S. Supreme Court opinion.