Judge Emmet G. Sullivan should not be required to act as a “mere rubber stamp” for the government’s unusual move to undo the guilty plea of President Trump’s former national security adviser Michael Flynn, the judge’s lawyers told a federal appeals court in Washington on Monday.
Sullivan’s attorneys asked the appeals court to stay on the sidelines to give the judge an opportunity to ensure the “integrity of the judicial process” and to rule on the Justice Department’s request to dismiss Flynn’s case.
The judge must evaluate Flynn’s dramatically different claims, Sullivan’s lawyer Beth Wilkinson told the court: “What, if anything, should Judge Sullivan do about Mr. Flynn’s sworn statements to the court, where he repeatedly admitted to the crime and to the voluntariness of his guilty plea, only to now claim that he never lied to the government and was pressured and misled into pleading guilty?”
The actions of the rogue federal judge in the Michael Flynn criminal case are an unprecedented and unconstitutional abuse of power that represent a “recipe for tyranny,” seven top senators, including the Senate Majority leader, told a federal court on Monday. In an amicus brief filed with the U.S. Court of Appeals for the District of Columbia, Sen. Tom Cotton (R-Ark.) blasted the refusal of Judge Emmet G. Sullivan to grant the Department of Justice’s motion to dismiss charges against Flynn. Sens. Mike Braun (R-Indiana), Kevin Cramer (R-North Dakota), Ted Cruz (R-Texas), Chuck Grassley (R-Iowa), Rick Scott (R-Florida), and Mitch McConnell (R-Kentucky) also signed the brief....No less than the former Chief Justice John Marshall described prosecutorial discretion as “‘an indubitable and a Constitutional power’ which permitted [the President] alone to determine ... when to pursue and when to forego prosecutions,” the senators note, quoting the former chief justice from his time as a congressman. The senators reminded the court that Alexander Hamilton wrote in Federalist No. 78 that “while the Executive ‘holds the sword of the community,’ the Judiciary ‘can take no active resolution whatever’ because it has ‘neither Force nor Will, but merely judgment.'” They quote James Madison in Federalist No. 47 that “[a]lthough individual liberty has ‘nothing to fear from the judiciary alone,’ it has ‘everything to fear’ from the union of the judicial and executive powers—which is a recipe for ‘tyranny.'”
UPDATE 1: Appellate lawyer John M. Reeves has provided an analysis of Sullivan's response to the DC Circuit and Michael Flynn's for a writ of mandamus. Reeves filed an amicus brief with the Court and you can read his brief here. Here is his unrolled Twitter thread in which Reeves analyzes the Sullivan brief (links and citations have been removed):
1) In his brief filed today, Judge Sullivan makes the arguments I anticipated in my amicus brief (my amicus brief is linked below, along with Judge Sullivan's).
2) Judge Sullivan's primary argument is that mandamus cannot issue because here, unlike in Fokker, there has been no ruling one way or the other on the motion to dismiss.
3) But as I point out in my amicus brief, mandamus is available not only where a district court judge DENIES the DOJ's mtn to dismiss, but also where it REFUSES TO RULE on the matter through an UNREASONABLE DELAY, which is what has happened here.
4) In addition, Judge Sullivan argues that district courts DO, in fact, have discretion over whether to grant the DOJ's mtn to dismiss, even if the defendant consents, and must examine the "public interest."
5) In support of this argument, Judge Sullivan cites the early-1970s DC Circuit case of Ammidown.
6) But as I point out in my amicus brief, Ammidown's holding on this was pure dicta (that is, non-binding), and cannot be squared away with Fokker and subsequent SCOTUS precedent.
7) Indeed, the Seventh Circuit--in an opinion by Judge Posner and joined by Judges Easterbrook and Wood--note that Ammindown's holding in this regard is dicta.
8) This is no small matter, because while Judges Posner and Easterbrook are "conservatives," Judge Wood is very much a liberal, and was on Obama's shortlist for a SCOTUS vacancy.
9) Judge Sullivan fails to take into account how here, the Government is seeking dismissal WITH PREJUDICE.
10) A district court may be justified in denying the Govt.'s mtd if it was seeking to dismsiss WITHOUT PREJUDICE, as there would be a risk of subjecting Flynn to multiple repeated prosecutions.
11) But where, as here, the Govt. is seeking dismissal WITH PREJUDICE--meaning it would be barred from ever re-filing charges--and thus is not trying to give itself a Mulligan or do-over on the prosecution...
12) Judge Sullivan cannot deny the motion or call for amicus briefing on the matter without runing afoul of the separation of powers.
13) Judge Sullivan's brief makes no serious attempt to analyze any of these issues.
In essence Reeves is pointing out that Sullivan's response is frivolous in failing to address the major issues in a serious way--insteading citing dicta in a case that has long since been superseded by binding precedent. Other issues are simply ignored. This would get an F if submitted as a practice appellate brief in law school.
UPDATE 2: DoJ's brief is now available here. As anticipated:
1) It's signed by "heavy hitters" (Techno Fog's words) like Noel Francisco. Francisco is the Solicitor General of the United States, which means he argues the US Government's position before the SCOTUS. He's very highly regarded and has practiced extensively before the SCOTUS. In these terms, Sullivan and Wilkinson are total lightweights. It's a clear signal to the Court that DoJ takes this case very seriously.
2) The brief starts out by going right to the Constitutional issues of Separation of Powers:
The Constitution commits the power to prosecute to theExecutive rather than the Judiciary
Rule 48, read against the backdrop of the Constitution, required the district court to grant the government’s motionto dismiss because the motion was unopposed
UPDATE 3: Techno Fog notes briefly (!) that the DoJ is very strong, and offers a few highlight quotes:
The Constitutional power to prosecute belongs to the Executive.
The Federal Rules, "read against the backdrop of that constitutional principle, required the district court to grant the US motion to dismiss the indictment because that motion was unopposed."
Strong words on Sullivan's plan:
Sullivan and his amicus "may not conduct evidentiary proceedings based on speculation about the government's motives."
Sullivan plans to subject the DOJ decision to "extensive judicial inquiry, scrutiny, oversight and involvement."
Under Supreme Court and DC Circuit precedents, "it is clear and indisputable that [Sullivan] has no authority to embark on that course."
*SG Noel Francisco
This is a remarkable read. It lays waste to various amici arguments that misconstrued Sullivan's authority.
UPDATE 4: shipwreckedcrew makes an observation about a matter that could really come back and bite Sullivan and Wilkinson in the ass:
I'm going to resist the urge to blast out on the Sullivan filing in the Flynn case.
But I would note that Beth Wilkinson made a bald face false statement on Page 1 where she says Judge Sullivan found Flynn's statement to be material.
Among the final comments he made at the Dec. 18 hearing was for the attorneys to prepare before the next hearing to answer his questions about "how" the statements were material, because he still didn't understand that issue.
For him to say "I found them material" while having said "I don't understand how they are material" is judicial misconduct -- no way around it. He can't make a determination on a factual element of a criminal offense and profess to not understand what he's just done.
UPDATE 5: Two more good tweets. First Will Chamberlain describes the DoJ brief:
This brief is absolutely ferocious, and signed by a slew of people at the top of the DOJ, including the SG AND the Assistant Attorney General in charge of the Criminal Division.
Then Mike Cernovich:
For weeks I had to correct so many lawyers and law professors on what a final judgment means in a criminal case.
As DOJ's brief shows with lengthy citations, the judgment wasn't final and therefore Sullivan has NO DISCRETION to order prosecution to continue.
UPDATE 6: Sean Davis captures the thrust of the DoJ brief well--In Appellate Brief, DOJ Unloads On Behavior Of Rogue Judge In Flynn Case:
The Department of Justice on Monday unloaded on the antics of the rogue federal judge overseeing the Michael Flynn trial, accusing him of usurping the constitutional authority of the executive branch to make prosecutorial decisions and ignoring both statutory law and federal court precedent requiring him to dismiss the case against Flynn.
In a sign of how important DOJ views the underlying constitutional issues in the case, the formal brief to the appellate court wasn’t just signed by the line attorney managing the government’s case. Instead, it was signed by Noel J. Francisco, the Solicitor General of the United States who is tasked with representing the U.S. government in the most important appellate cases across the country; Brian A. Benczkowski, the Assistant Attorney General and head of DOJ’s entire criminal division; Deputy Solicitors General Jeffrey B. Wall and Eric J. Feigin; assistants to the Solicitor General Frederick Liu and Vivek Suri; Michael R. Sherwin, the acting U.S. Attorney for the District of Columbia; Kenneth C. Kohl, the acting Principal Assistant United States Attorney for D.C.; and Jocelyn S. Ballantine, the line prosecutor handling the Flynn case at trial.