Thursday, May 14, 2020

UPDATED: Margot Cleveland Sides With Tolman: Barr Should Go For Writ Of Mandamus

Margot Cleveland has a fine article today explaining why seeking a Writ of Mandamus is the appropriate step that AG Barr should now take in the Flynn case. You'll recall that yesterday I cited the view of former US Attorney Brett Tolman--when asked what should come next Tolman immediately suggest applying for a Writ of Mandamus. Mandamus is simply Latin for "we order", and here is the Wikipedia explanation of what such a writ means:

In the context of mandamus from a United States Court of Appeals to a United States District Court, the Supreme Court has ruled that the appellate courts have discretion to issue mandamus to control an abuse of discretion by the lower court in unusual circumstances, where there is a compelling reason not to wait for an appeal from a final judgment.

Here's the link to the full article by Cleveland:

The Constitution Requires Judge Emmet Sullivan’s Lawless Amicus Order Against Michael Flynn Be Overturned
The U.S. Constitution makes clear that the judiciary has no business second-guessing prosecutorial decisions. That’s what Michael Flynn judge Emmet Sullivan decided to do.

The key to understanding this issue is Cleveland's characterization of Sullivan's latest order as "lawless." A "lawless order" issued by a lower court would seem to be just the sort of "unusual circumstance" in which the rememdy of mandamus would be appropriate. Just why does Cleveland regard Sullivan's order as lawless? I have characterized Sullivan's action in appointing a non-party to present opposing views to the government's discretionary act of dismissing the prosecution of Flynn as a usurpation by a judge of exclusive Executive Branch power and authority. In addition, numerous commenters have pointed to Sullivan's unhinged bias against Flynn--unhinged enough that he was led to display his ignorance of the US Constitution in open court. These are the details that Cleveland delves into.

Note in what follows, that it appears that Sullivan may be seeking outside counsel in formulating his orders--which is a breach of ethics. I say that because his tendentious order appears to track the expressed views of his anointed Amicus, Gleeson, which in turn ignore established DC Circuit law:

... on Wednesday [Sullivan] entered an order “appoint[ing] The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss.” 
This order was jaw-dropping for two reasons. First, the U.S. Constitution makes clear that the judiciary has no business second-guessing prosecutorial decisions. In fact, the very case Judge Sullivan cited for the proposition that he had the inherent authority to appoint an amicus curiae—United States v. Fokker—made clear Sullivan’s order was lawless.

Cleveland then cites the Fokker case holding for two purposes. The first is to explain what the "leave of court" requirement means in the context of the government moving to dismiss a prosecution. The Fokker court made clear that that requirement is to be narrowly construed as intending only to protect a defendant from abusive prosecution. That, of course, is a point that Andy McCarthy and others who actually know criminal law have made. Beyond that narrow purpose, Executive discretion in prosecution is absolute [my editing in what follows]:

“[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.’” 
As regards the "leave of court" requirement in Federal Rule 48, the Fokker court repeated that “decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion.” 
The “leave of court” requirement, the court stressed, "[is] a narrow one—’to protect a defendant against prosecutorial harassment . . . when the [g]overnment moves to dismiss an indictment over the defendant’s objection.’” Such review in that case is to guard against “a scheme of ‘prosecutorial harassment’ of the defendant through repeated efforts to bring—and then dismiss—charges.”

In bringing in outside counsel to make an argument that flouts established DC Circuit law, Sullivan is clearly acting lawlessly. As Cleveland writes, this is indeed "jaw dropping." Be it noted--the Fokker case is very current law, a 2016 decision. Gleeson's op-ed in the WaPo expresses an opinion that runs directly counter to the DC Circuit, so there's no question but that Sullivan intends to use his courtroom as a forum to challenge established law through an outside counsel.

The Fokker court also laid down what considerations should go into the unusual remedy of issuing a Write of Mandamus:

The Fokker court explained that while mandamus is an extraordinary remedy, it is appropriate where the petitioner: (i) has “no other adequate means to attain the relief he desires”; (ii) “show[s] that his right to the writ is ‘clear and indisputable’”; and then “(iii) the court ‘in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’”

The Flynn case appears to fit comfortably within these guidelines:

1) The government--at this point has “no other adequate means to attain the relief he desires”; 
2) The government's "right to the writ is ‘clear and indisputable’” by the previous terms of the Fokker case--it's right to exercise prosecutorial discretion is clear and indisputable; 
3) In the circumstance where a lower court judge has shown extreme prejudice and an intent to turn his courtroom into a forum for non-parties to a prosecution to argue against established law, a Writ of Mandamus is appropriate before any final ruling. The writ in that circumstance is an order designed to control a clear abuse of authority.

Cleveland also specifies that AG Barr should also be asking that on remand--when the case is returned to the lower court level--it should be reassigned away from Sullivan. There are two excellent reasons why this unusual step should be taken.

The first is the well known intemperate outburst by Sullivan in which he demanded to know why Team Mueller was not prosecuting Flynn for "treason." This display of constitutional ignorance--and personal hostility against Flynn--must have left even the Team Mueller lawyers slack-jawed. During a recess they were required to bring Sullivan up to speed on the Constitutional definition of treason and why "treason" had no bearing at all on the Flynn case.

The other reason was expressed last night by professor Jonathan Turley. Sullivan has basically proposed--by asking Gleeson to present the case for holding Flynn in contempt for perjury--a Catch-22 style standard for defendants who are the victims of prosecutorial abuse and coerced pleas. According to Sullivan's proposed standard, if a defendant seeks to take back a guilty plea based on coercion, he will face a further charge of perjury for having pled under coercion! This violates all concepts of justice and fairness.

It remains possible that all of this is simply grandstanding by Sullivan for political purposes--a desire to hash out the Russia Hoax in court, or perhaps to allow Gleeson to renew his op-ed attack on AG Barr in open court. It may be that Sullivan will follow the law when he rules. However, grandstanding for political purposes runs counter to the very principles of impartial judging. It should not be allowed if the US is to remain a country subject to the Rule of Law.



  1. One has to question why the Obama WH and IC agencies continued their spying on team Trump after the election. Much early conjecture was they all figured Clinton would win and they would never be exposed. One possible answer is they were too far out over their skis at that point to end it, so the only alternative was to continue and try to take Trump out with assistance of the media, congress, and the courts.


  2. The Deep State seems determined to sacrifice the judiciary's reputation/trust on the same bonfire of Orange Man Bad that they sacrificed that of the press:

    Over at American Thinker there is this today:

    A discussion of the six most important human values or foundations, regardless of history, culture, or socioeconomic status, across societies as argued by Jonathan Haidt in "The Righteous Mind: Why Good People are Divided by Politics and Religion".

    Number 4 is - "Authority: This foundation is based on the benefits of respecting authority or hierarchical relationships, which includes the burden of responsibility and should not be confused with power. Whereas liberals often define themselves in opposition to this (unless they are in charge), conservatives tend to embrace it."

    What makes the American judicial system work is trust. Because, generally speaking, the American people TRUST the system they GRANT it Authority. It would appear Sullivan, the Fourth Circuit, either count that trust of little value or are bent on destroying it and feel they will simply rely on brute force to govern. This addresses the why of Haidt's liberal being in opposition, at least ostensibly, to Authority. Because they cannot conceive of its legitimacy being rooted in responsibility, and trust in meeting that responsibility, rather than the raw power to bend or break others at their will. Power is the only metric they recognize in Authority, contrary to American democratic theory. This willful ignorance of the American character by the, supposedly, apolitical judiciary is pushing millions of Americans out of “a civil war is impossible” country into “it could happen” territory and inexorably towards the no-mans-land of “let’s do this. “

    I’ve come to the conclusion that the Left actually wants a civil war; they just don’t want the optics of striking the first physical blow.
    Tom S.

  3. Knowing how things seem to work with the deep state, it would be reassigned to Amy Berman Jackson or someone like that.

  4. ( Please file tile this under the heading of: Brad Crawford's destined-to-fail predictions ;) )

    Seems like Sullivan should have no grounds at all for rejecting DOJ's dismissal and then sentencing Flynn, so I'll be surprised to see him get anywhere on this count. (Though of course the swamp rules, so anything's possible.)

    The more interesting part I think is the contempt charge, which he can argue is separate from the 1001 charge. This makes your Catch-22 point wrt to Turley's words the real key, or so it seems to me.

    Sullivan can't simply say no defendant can take back a guilty plea without being held in contempt, so he'll have to show that this particular case is somehow or another an egregious exception, and I wish him (not really!) good luck showing that.

    All that said, the particulars are mostly just a sideshow. The real story is that all he really needs to achieve tactical victory is to keep the controversy alive as long as possible, thereby doing his part to help keep his team from ever having to admit that Flynn was victimized and they were the victimizers. That’s almost certainly his view, and his guiding light, in all this, and only a serious and *timely* slapping down by Appeals or SCOTUS can ultimately deny him that victory.