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Wednesday, June 24, 2020

Mandamus issues in Flynn prosecution (Updated)

A divided D.C. Circuit panel granted Michael Flynn mandamus and ordered Judge Sullivan to remove the appointed amicus and to grant the government's uncontested motion to dismiss the charges. This is a brutal decision that leaves little meaning to the "leave of court" language in FRCrP 48(a), turns a presumption of regularity of prosecutorial decisions into a mandatory conclusion by precluding any inquiry into those decisions, and grants mandamus relief before the district court has had an opportunity to decide the motion or to do anything that might so imperil anyone's rights or interests. Mandamus is a weird duck, with judges reciting the high standard for granting, then finding that standard satisfied in the cases they want (but no others). The court also does not really address the unique element of this case--government dropping charges after the defendant twice pleaded guilty in open court--and how it might differ from a decision to drop charges at the outset. The decision also functionally prevents the district court from considering perjury charges against Flynn because there is no amicus to investigate.

My guess is that, like the decision on the tax subpoenas, the panel opinion will not survive long; the court will take it en banc and deny mandamus. Then on to SCOTUS?

Update: Orin Kerr compares this decision to Bush v. Gore for a variety of reasons, most prominently in telling a lower court to stop what it was doing, out of distrust that the lower court would conduct ordinary procedure in any appropriate way. I would add an additional similarity--both are "good for this trip only" decisions; I expect that in the next case, Judges Henderson and Rao will remind how extraordinary mandamus relief is and how high the standard is and how harm to non-parties is not a basis for relief.

Posted by Howard Wasserman on June 24, 2020 at 02:08 PM in Howard Wasserman, Judicial Process | Permalink



Sidney powells commentary is fascinating

Posted by: Blouis79 | Aug 21, 2020 6:12:14 AM

If a majority of judges believe the panel got it wrong in a way that is bad for the state of the law (including the possibility, argued by Judge Wilkens, that the majority misapplied Fokker) they'll rehear. I don't think the outcome of Fokker makes a difference to the procedural question of whether the court will rehear.

Posted by: Howard Wasserman | Jun 25, 2020 1:59:27 PM

So your theory is that the Court of Appeals will grant en banc review on the issue of whether mandamus was the proper form of relief in this case? Maybe, although in Fokker, on which the panel relied, the en banc Court of Appeals granted mandamus relief to the petitioner.

Posted by: Douglas B. Levene | Jun 25, 2020 1:35:38 PM

No. Mandamus is not an ex parte proceeding and the panel does not "usually den[y] immediately." A petition for mandamus to a court of appeals has the lower court as the respondent (that is why many mandamus petitions are framed as "[Petitioner Name] v. [Judge Name]" or "[Petitioner Name] v. District Court." Usually, the judge/court is represented by the party benefitted by whatever the court did. But sometimes the judge represents herself or, more specifically, amicus is appointed to represent her position. Exactly what happened here.

In any event, as noted, it does not matter because as I noted in my prior comment, any active judge can request hearing, triggering a vote of the full court and new briefing and argument if granted.

Posted by: Howard Wasserman | Jun 24, 2020 7:23:55 PM

Good question, Arthur. Mandamus is by petition. A petition has only one party, right? The panel usually denies immediately, but here they "ordered" comment from Judge Sullivan and "invited" comment from DOJ. Then lots of people, including me, moved leave to be amici, and most of them were approved, though not all. The party petitioning won. If he'd lost, he could have appealed. Since he won, who has standing?

I'm ignorant on this, but logically it seems things would stop here. It's analogous to a one-sided (is ex parte the term?) temporary restraining order being appealed by the unhappy side, maybe. But here, the unhappy party is Judge Sullivan, who is not a party to *any* lawsuit, just a government employee involved in it.

My rapid boldfacing of what I found interesting bits of the opinion, with a few comments in brackets, is below. I'd like to write an article on mandamus, or even on Rule 48 dismissals, though maybe I'll never get round to it. Comments welcomed at [email protected]

Posted by: Eric B Rasmusen | Jun 24, 2020 5:50:46 PM

Yes, the district judge could petition, since he is the respondent in the case. More importantly, any active judge can request rehearing en banc, since en banc review is about not only protecting the interests of a party but also the interests of the court.

Posted by: Howard Wasserman | Jun 24, 2020 2:57:59 PM

I don't see how an further review is going to happen. The prosecution and defendant are both happy with the ruling; the only "aggrieved" party is the district court judge. Does a district court judge have standing to petition for either en banc review or certiorari? Can the Circuit Court withdraw the panel's mandate without any petition for review being filed? Have any of these things ever happened? Practically, if the District Judge refuses to accept the mandate of the Court of Appeals, the Court of Appeals can order the matter transferred to a different District Court judge.

Posted by: arthur | Jun 24, 2020 2:47:17 PM

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