Monday, May 18, 2020

UPDATED: Perjury, Contempt, Mandamus

For now things seem to be hanging fire in the Flynn case--although you can bet that behind the scenes there is frenetic activity and heated debate. The question that interests me today is one that is surely part of that heated debate: Can either the Flynn camp or DoJ seek a writ of mandamus before Sullivan enters a final judgment?

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:

Here’s Why Judge Sullivan Can’t Legally Punish Michael Flynn For ‘Perjury’
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:

Should Flynn’s Team Seek a Writ of Mandamus?
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?
h/t: @HansMahncke

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
Replying to

 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.
1:07 PM · May 17, 2020


  1. Is holding off applying for a writ of mandamus perhaps due to Powell's reluctance to tick off this judge if she loses? And the "new guy" taking a month to prepare his arguments, presumably to conduct another investigation is absurd. Investigate what? Isn't that what the prosecution was supposed to do?

    1. I'd never presume to second guess such an accomplished as Powell--before the fact, that is :-) --but I doubt that's the reason. There are all sorts of factors involved, some of which I'm sure I haven't thought of. One might be to wait to see whether DoJ will apply for a writ. In many ways they're the appropriate party, having in some ways the strongest interest in seeing the powers of the Executive Branch defended.

  2. That makes sense. The risk to the DOJ though is political. If they appear to be fighting too hard to get Flynn's case dismissed, then it feeds the Democrat narrative that the DOJ is acting out of political interests rather than interest of justice. I'm sure Sullivan is counting on that as well.

    1. I think you're arguing to the media reaction, which is predictable. In the long run, however, the Judiciary has an interest all its own in maintaining separation of powers. Not just a matter of principle but of self interest as well.

    2. "If they appear to be fighting too hard to get Flynn's case dismissed, then it feeds the Democrat narrative...."
      Tough. The Dem narrative will always be to the effect of, if the White Patriarchy doesn't instantly commit Seppuku, it's the Mother of all Outrages.

      Why can't the reverse be equally true:
      "If they appear to be fighting too WEAKLY to get Flynn's case dismissed, then it feeds the GOP narrative...", that they are letting Lefty activist judges rape what's left of authentic republican governance.

      If the obverse applies to current circumstances, more than does the reverse, how can that be?
      Might it be, because RHINOs (e.g. Mitch, Lindsey) don't come out swinging, like Schumer & Schiff do?

  3. I have also heard Mark Levin reference a Writ of Prohibition. Do you have any insight to that, Mark W.? Is there an advantage to Prohibition or Mandamus such that one is better/worse than another?

    1. Honestly, I'd never heard of that, but it sounds promising:

  4. Excellent piece. Working on a comment. But as an aside, on Brown, in light of a defendant's right to represent himself, however inadvisable, it's interesting that obstruction of justice was sought because the defendant claimed to be an attorney when he was not. Only actual conduct itself in all its forms could potentially obstruct the proper administration of justice. So a defendant representing himself, as is generally his right, who also falsely claimed to be an attorney while doing so — as irrelevant as that may be to the matter before the court — and who nonetheless conducted himself in accordance with all applicable procedural standards, regardless of competency in matters of law ... well, there is no shortage of real lawyers doing that every day. It's as though somebody forgot to remember to not forget that the judicial system and access to justice is not a members-only private society known as "Bull & Scones".

    1. Judges get some funny ideas sometimes, don't they?

  5. With the new request by Gleeson to potentially be able to re-interview witnesses and keep this going forever, I'm thinking this is just a way to force Trump to pardon him now so it looks bad for him or to push it past November.

    1. I commented on the other thread that I can't see Barr backing down from this. I have to believe we'll see a response soon--maybe through this new guy Sherwin that Barr just sent to DC USAO.

  6. O/T. We're all impatient for real justice. A clear-eyed, insightful Twitter thread from a former SSA about the actual lengths of time needed to build to indictments that actually stick: