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.

UPDATE:

I've been speculating with friends off-line about that very thing. I think DOJ was going to just be patient until his order today. I think they know now that Sullivan has declared war. https://t.co/dU8PTx6evr

— shipwreckedcrew (@shipwreckedcrew) May 14, 2020