Higher courts would clearly be reluctanct to go down that road, and that understandable reluctance is undoubtedly what Sullivan is counting as he games the system to delay justice past the November election. However, two articles today, when combined, help frame an affirmative answer to that question about whether a writ of mandamus can only issue after a final judgment. The question takes on added interest in light of recent attempts by the SCOTUS--even now including Justice Ginsburg--to reign in lower courts that are abusing and even arguably acting outside their powers as part of a so-called "resistance".
The first article is by Leslie McAdoo Gordon:
Sullivan should not embark on any contempt proceeding against Michael Flynn. Doing so would be a misuse of his contempt power.
In her article, Gordon focuses on whether perjury is grounds for a contempt prosecution. Her answer is 'No,' and she maintains that do so is actually beyond a judge's powers.
Here's the heart of her argument:
Under the separation of powers established by the Constitution, criminal charges are brought by the executive branch and adjudicated by the judiciary. ...
Courts are, however, permitted to initiate prosecutions for criminal contempt of court. ...
The federal criminal code specifically recognizes a court’s contempt authority. Section 401 of the federal criminal code provides that a federal court can punish contempt of its authority, consisting of misbehavior in its presence that obstructs the administration of justice.
But the Supreme Court decided 100 years ago in a case called Ex parte Hudgings that perjury does not constitute contempt of court under Section 401. In that case, a judge held a witness in criminal contempt for giving what in the judge’s view was perjured testimony.
The Supreme Court held that to convict the witness of contempt for alleged perjury, “there must be added to the essential elements of perjury … the further element of obstruction to the court in the performance of its duty.” It voided the contempt conviction because “the punishment was imposed for the supposed perjury alone without reference to any circumstance or condition giving it an obstructive effect.”
The D.C. Circuit, which sits over Sullivan, has reinforced the Hudgings limitation and emphasized that “actual, not theoretical, obstruction is the test, and that any claimed obstruction must be proven precisely.” That decision, called In re Brown, involved a person who falsely claimed to be, and acted as, an attorney in a criminal proceeding before the court. The D.C. Circuit ruled that this conduct, however fraudulent, had not obstructed the proceeding.
The second article asks:
Given the government’s decision to drop the charges against Flynn, his case should be dismissed immediately. If not, and although quite rare, his team could try to seek a writ of mandamus.
The author concludes that a writ of mandamus would be a proper remedy in the Flynn case, and specifically notes that such a write could be applied for before final judgment. In support of his argument the author cites the 1976 SCOTUS decision Kerr v. US District Court:
The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. As we have observed, the writ “has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’”
And, while we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of “jurisdiction,” the fact still remains that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.”
The language is excellent for Flynn--we have already seen Gordon's argument that Sullivan is usurping Executive Branch powers and ignoring clear precedents that should govern his actions in the Flynn case. However, it's necessary to note that the court in Kerr ended up denying the application for the writ, stating:
... the party seeking this largely discretionary writ must show that there are no other adequate means to secure the desired relief.
(b) Here, adequate alternatives to mandamus existed.
Against this, the author argues:
In refusing to simply dismiss the case, Sullivan seemingly placed his subjective opinion about the case and/or the defendant above everyone else’s, including those prosecuting the case. Not only is this against established case law, it also appears to exceed the scope of his judicial authority.
Moreover, this decision appears to politicize Flynn’s case, as does the open call for amicus briefs and the judge’s decision to appoint a retired judge to argue against dismissal and to consider whether Flynn should face a perjury charge. By calling for such briefs, Sullivan opened the floodgates whereby special interest groups and others opposing Flynn could help to “fan the anti-Flynn flames” and continue to “tarnish” Flynn’s good name.
More importantly, as the law is clear regarding the judge’s discretion when the government seeks to dismiss charges, there is no real purpose for amicus briefs other than to delay the case ...
The emphasis on continuing harm to Flynn is well placed, because it distinguishes the facts in the Flynn case from those in Kerr (a class action suit by 7 prisoners in California state prison). Flynn's case is the subject of almost daily media attention and has been for several years. Moreover, the charges in Flynn's case entail suggestions of moral turpitude against a prominent public figure.
I wouldn't want to predict the outcome if one of the parties applies for a writ. However, the combination of a judge usurping Executive Branch powers, acting outside his own properly judicial powers, and the manifestly great harm to a public figure makes for a compelling case. It's certainly one that I'd like to see adjudicated.
UPDATE: Brief article, but says so much: When Even CNN Gets There’s a Problem in the Flynn Case, But the Judge Doesn’t, You Know It’s a Problem. The author quotes this tweet:
James A. Gagliano
Shockingly cavalier take by Judge Sullivan to defense counsel @SidneyPowell1 on 9/10/19 re: FBI’s *lost* original Flynn interview 302:
“[T]hings happen and documents are lost. I mean, it just happens.”
Excused *misplacement* of seminal interview document? ￼
12:10 PM - May 17, 2020
Think about that for a second. The very item alleged to prove what you are charged with is missing and the judge has no problem with that?
And a commenter to the tweet makes the inevitable and very obvious observation--obvious to all but liberal legal commenters:
XK aka Rebecca Keith
and 2 others
Except it would be next to impossible for this document to dusappear. It never was a piece of paper. It is electronic. Always was. It is not lost and it obvious that it is being hidden.