The en banc court of appeals switches and denies a mandamus in the Michael Flynn case

Michael_flynn_web

By Robert Willmann

 Without saying which of the 10 judges doing the rehearing wrote the majority opinion, the federal Court of Appeals for the District of Columbia Circuit switched the earlier three-judge panel decision and denied the request of Michael Flynn for a mandamus order that would have directed the trial court judge Emmett Sullivan to grant the motion by the Department of Justice to dismiss the criminal prosecution of Flynn [1]. 

The 18-page majority opinion by seven judges said it was "per curium", which does not identify which judge was assigned and wrote the majority opinion.  Judge Thomas B. Griffith wrote a two-page concurring opinion.  Judge Karen LeCraft Henderson wrote a 10-page dissenting opinion, which was joined by Judge Neomi Rao.  Judge Rao wrote a 30-page dissenting opinion, which was joined by Judge Henderson.  Judge Rao had written the original decision, joined by Judge Henderson, which granted the mandamus and vacated the appointment of John Gleeson by Sullivan to oppose the granting of the motion to dismiss.  Judge Robert Wilkins wrote a dissenting opinion in that earlier panel decision.  Here is the en banc decision of today–

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

There are colloquial expressions that precisely describe the majority's decision denying a mandamus, but it would not be proper for me to say them in the presence of ladies.

I have to get on the road now, but today's opinions and order are here for you to read and download as desired.  I anticipate that Flynn's lawyers will ask the U.S. Supreme Court if it will agree to hear the mandamus action.

 

[1]  Order by the en banc court denying a writ of mandamus. 

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

 

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13 Responses to The en banc court of appeals switches and denies a mandamus in the Michael Flynn case

  1. Avatar JM Gavin says:

    The Court of Appeals majority justifies the ruling by limiting the review to the premise that Judge Sullivan has not refused to dismiss the case. While that argument may be true, it is willfully ignorant of the circumstances at play.
    While this doesn’t do much for LTG Flynn, it also doesn’t do the federal judiciary any favors.
    The ruling gives Judge Sullivan standing in this case. If the judge has standing, the judge is now a party in a federal case. We generally haven’t applied qualified immunity to judges in the past, as judges weren’t parties to the cases before the court. This could result in a new interpretation of judicial misconduct, applying the same standards used for prosecutorial misconduct.
    Or perhaps I made all that up…
    DOL,
    JMG

  2. Avatar A. Pols says:

    It seems that things like precedent and other inconveniences are being dispensed with in our brave new world. After all a rather obvious case of self defense is now first degree murder in Kenosha’s world. I mean, if he didn’t intend to kill, why did he feel it necessary to carry a weapon to a peaceful protest?

  3. Avatar English Outsider says:

    I saw it reported elsewhere and came straight over to the Colonel’s site to look for further details. So Flynn is left on the rack. Not being a lawyer I didn’t scruple to use “colloquial expressions” when I saw that reported. There’s a point puzzles me though.
    Wiki states that mandamus mustn’t be looked to for remedy if other remedy’s available –
    “Furthermore, mandamus will typically not be granted if adequate relief can be obtained by some other means, such as appeal.[3]”
    So also the decision in this case –
    “Here, Petitioner and the Government have an adequate alternate means of relief with respect to both the Rule 48(a) motion and the appointment of amicus: the District Court could grant the motion, reject amicus’s arguments, and dismiss the case. At oral argument, the District Judge’s Attorney effectively represented that all these things may happen… Even if the District Court were to deny the motion, there would still be an adequate alternate means of review perhaps via the collateral order doctrine or a fresh petition for mandamus challenging the denial, see United States v. Fokker Servs. B.V., 818 F.3d 733, 748–49 (D.C. Cir. 2016); United States v. Dupris, 664 F.2d 169, 173–74 (8th Cir. 1981), and certainly on direct appeal by Petitioner following sentencing (at which point he could raise amicus’s appointment as error), “
    Mr Willman – is this on the level? Should Flynn in fact have waited, perhaps even until Judge Sullivan gave his judgement, or are we seeing lawfare in action?

  4. Avatar Chuck Light says:

    I believe that Mr. Willman will agree with me, so with your permission I would like to add my voice. The decision today accurately states the law on mandamus, and the same was true when the three judge panel made their erroneous decision.
    Mandamus never should have been granted in the first place, because the District Court process had not been completed. If there were alternative remedies available, Flynn had an obligation to seek them before seeking the “extraordinary” writ of mandamus. He could have simply waited until Judge Sullivan made his decision. If Judge Sullivan ruled in favor of the DoJ motion to dismiss, then Flynn would have had the full relief he sought prematurely. And if Judge Sullivan ruled against the motion to dismiss, Flynn would still have had the full panoply of appellate remedies available to him. Regardless of his sentence, he would have remained free on bond, as he is now, while the appellate process played out.
    You can criticize Lawfare if you wish, but I am pretty sure that Mr. Willman will agree with Lawfare, and with me, that Flynn incurred legal fees unnecessarily through his attempts to cut short the legal process. Maybe his current lawyers will waive their fees.

  5. Avatar English Outsider says:

    Thanks, Chuck Light. Should say that my use of the term “lawfare” related to the general use of process to pursue political objectives rather than specifically to “Lawfare”.
    My amateur reading of the case follows your conclusions. Flynn went in too fast.
    Do you see him as having a case if Judge Sullivan’s decision goes against him?

  6. Avatar Jim says:

    Mandamus among other purposes is to reign in judges that leave the reservation and go rogue.
    The majority en banc decision demonstrates those “judges”
    A] don’t want to abide by Fokker decision that reigns them in;
    B] and thus be free to leave the reservation, and become social justice warriors instead of judges — and not be reigned in when they go rouge.
    It really boils down to that. They don’t want to be restrained by their excesses of which Fokker decision does explicitly and they don’t want Mandamus used to do so, when they go rogue.
    Were this a judicial proceeding, Sullivan would have recused himself in Dec. 2018 after calling a Lt. General a traitor to his country. How can anyone, much less a so-called judge get away with this sinful behavior, yet Sullivan did.
    It boils down to he acted in heinous manner and most of his cohorts both enabled that and saw nothing to see there.
    Were this a functioning constitutional republic, Flynn would still be National Security Advisor.
    Lawfare encourages getting lost in the weeds, and does not operate in the pubic interest.
    I listened to entire 3-judge circuit proceeding and 10-judge en banc proceeding.
    Listen to those sometime if you want edification on the caliber of them.
    You will discover that these for-life appointees, some, most of who I listened to are at best flop-house pseudo intellectuals, at worst, enemies of the people.
    Some of them, their lack of self awareness is painful to observe.
    -30-

  7. Avatar Sid Finster says:

    I have said this before, but:
    There is no such thing as law. There is only context.
    Note that statement is descriptive, not prescriptive. Nowhere did I say that this was a good thing.

  8. Avatar leeman says:

    No, Mandamus is not necessarily only available after a judge has ruled on a pending case.
    The appeals process is available for that.
    Mandamus is designed to correct a judge in the course of live proceedings.
    This same appeals court granted Hillary Clinton mandamus when asked to testify in a FOIA case. She could of just refused and appealed but they granted her mandamus relief regardless.
    In the Flynn case the judge has asked the public to pile in on a criminal case that no longer has a prosecutor.
    It is perfect for mandamus relief but according to the court of appeals the judge asking the public to pile in on a criminal defendant is the normal course of proceedings. It is not.

  9. Avatar Keith Harbaugh says:

    Judge Wilkins gave away his game plan
    in his question (posing a hypothetical) on pages 40-41 of the 2020-06-12 Oral Transcript:
    JUDGE WILKINS:
    So why isn’t it the case that
    if the Government makes a considered but racist decision that it just does not want to have a white officer stand trial for excessive force on a black victim
    that the district court can deny the motion,
    and then the political chips can fall where they may,
    and perhaps under pressure from the public or Congress or whatever,
    the district court may not be able itself to force the Government to prosecute the case,
    but maybe through the operation of the Legislative Branch or other pressures from the public and the media,
    a new prosecutor is appointed and the case proceeds?
    Why isn’t that exactly what leave of court should operate to do?
    https://www.sidneypowell.com/s/20-5143-06-12-2020.pdf
    This of course is exactly what Sullivan, with the concurrence of the CA, is working towards through his delaying tactics.
    ——
    For comparison, consider that a three-judge panel (which included Judge Wilkins) of the DC CA just GRANTED a writ of mandamus sought by Hillary Clinton:
    https://www.judicialwatch.org/deep-dive/courts-clinton-treatment/
    Tom Fitton wrote:
    “Hillary Clinton is getting special treatment from the court …
    The judge who wrote the case wanted to protect judge Sullivan from General Flynn’s mandamus petition,
    but is giving Hillary Clinton unprecedented protection along with two other judges…
    from being questioned in discovery.”
    As to the concerns of that three-judge panel, they expressed some of them in a footnote on their opinion’s last page:
    “the deposition of Secretary Clinton, if allowed to proceed,
    at best seems likely to stray into topics utterly unconnected with the instant FOIA suit,
    and at worst could be used as a vehicle for harassment or embarrassment.”

  10. Avatar Chuck Light says:

    English Outsider: You asked me if I had an opinion on whether Flynn has a case if Judge Sullivan rules against the DoJ Motion to Dismiss. Forgive me for the delay, but I wanted to make sure that my thoughts were based as much as possible on the applicable law and not my personal biases (we all have them).
    In my view whether Judge Sullivan grants or denies the DoJ Motion to Dismiss depends on the separation-of-powers argument asserted by the DoJ and adopted by Flynn. Basically, the DoJ contends that the Motion to Dismiss must be granted because it is a “charging decision” which is purely an Executive Branch function. Only prosecutors, or the DoJ more generally, can make “charging decisions”, and the Judicial Branch cannot interfere. Thus, if the decision to dismiss the charges against Flynn — even after Flynn has pleaded guilty — is truly a “charging decision,” then according to the DoJ, and legal precedent, Judge Sullivan has no choice but to grant the Motion to Dismiss.
    This question — whether the decision to dismiss at this point in the proceedings is a “charging decision” — has not as far as I can tell been addressed in the Flynn proceedings, either by Judge Sullivan or by either panel of the Court of Appeals. The closest the en banc panel came is on pp. 9-10 of the decision, where the panel skates all around the question without really addressing it.
    There is language in Fokker, which, if Judge Sullivan were to adopt it, would give him the authority to deny the Motion to Dismiss — in effect rejecting the assertion that the decision to dismiss is truly a “charging decision.”
    “The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences. The courts instead take the prosecution’s charging decisions largely as a given, and assume a more active role in administering adjudication of a defendant’s guilt and determining the appropriate sentence. Fokker Servs.,818 F.3d at 737 (emphasis added).” (I hope I didn’t screw this up by attempting HTML!)
    In the factual situation before Judge Sullivan, the Flynn case is now in the phase where the “appropriate sentence” is to be determined. Regardless of anyone’s views on whether Flynn’s guilty plea was proper, or extorted, Flynn has pleaded guilty — three times — and has been awaiting the only step in the process yet uncompleted. He is awaiting determination of the appropriate sentence, which is, according to Fokker a Judicial function.
    If Judge Sullivan views the language in Fokker the way it appears to read, rather than as the DoJ presents it, then he would be justified in denying the Motion to Dismiss, and proceeding to sentencing Flynn.
    If, on the other hand, he views the decision to dismiss as a “charging decision,” then he would be virtually mandated to grant the motion and dismiss the charges with prejudice.
    We should know, one way or another, about election time.

  11. Avatar Jim says:

    There is no charging decision to be made, absent a charge before the court, period.
    The DOJ, as is its sole right and duty, eliminated any charge against Flynn, period.
    You can tell me to go jump in the lake, but if lake is drained there is nothing to jump into.
    Sullivan wants throw Flynn in the lake that is no longer there.
    Sullivan is operating on the basis of a mirage.
    As did his co conspirators on En Banc panel.
    They know it and we know it.
    Trump can appoint Judge Rao supreme court chief justice someday if circumstances get to that place.

  12. Avatar Chuck Light says:

    If you say so, Jim. But the Department of Justice, and Lt. Col. Flynn, both say that the legal reason that Judge Sullivan must (as in “is under compulsion to”) grant the Motion to Dismiss brought by the Department of Justice is because dismissal of the charges is a “charging decision.” That is the Department of Justice legal rationale, not mine.
    And again, according to the law, Jim, and not my political biases, none of this kabuki dance would be occurring if the DoJ had the “sole right and duty” to eliminate the charges against Flynn. It is FRCrimP Rule 48(a) which imposed a sole right and duty upon Judge Sullivan to grant or deny the DoJ Motion to Dismiss in Judge Sullivan’s sole discretion.
    If, on the other hand, FRCrimP Rule 48(a) did not contain the words “with leave of court,” there never would have been an appointment of an amicus, or an Emergency Petition for Writ of Mandamus, or two proceedings before the DC Circuit Court of Appeals with diametrically opposed rulings. But for that language, the Motion to Dismiss would have been granted without Judicial interference. Not because Flynn somehow deserves to be free of the charges against him and to which he has pleaded guilty (I make no judgment on that question) but because the Rule would have mandated it.
    Believe what you will, Jim, but the Rule of Law exists for a reason, and I for one am thankful that we have it.
    And I would never tell anyone to go jump in a lake unless I knew the lake had water in it, and that the jumper could swim.

  13. Avatar fakebot says:

    It appears the DOJ had good cause to drop the case against Flynn.
    https://www.foxnews.com/politics/fbi-official-on-mueller-team-says-flynn-prosecution-was-used-to-get-trump-says-collusion-probe-was-not-there
    I wonder if there’s anyone who formed part of Mueller’s team who will admit the probe was designed “to get Trump” and had no merits at all?

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