Monday, June 1, 2020

MAJOR UPDATES: Briefs Being Filed In Sullivan Mandamus Case

That's right. It's the Sullivan case, now.

According to the WaPo, Beth Wilkinson has filed a brief for Sullivan with the DC Circuit. The article doesn't provide a link to the brief at this time--it probably won't be long (for legal masochists the brief is now available here). From the tone of the article Wilkinson's brief sounds like a basically emotional appeal and that is notably short on legal substance:

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 point, of course, is that Sullivan thinks he can usurp the Executive and somehow ensure the "integrity of the prosecutive process"--which isn't his job and is beyond his authority. The WaPo article doesn't hint at any way in which Wilkinson's brief addresses that fundamental issue--and the binding DC Circuit precedent that says so. Sullivan himself agreed in 2015 that a judge is ill positioned to make such claims, but he has before him now a defendant whom he very much wishes to prosecute, no matter what the prosecutors may say.

According to The Federalist, seven Republican senators have also filed an amicus brief in the case--In New Court Filing, Top Senators Blast Rogue Judge’s Refusal To Dismiss Flynn Case. In what seems to be sharp contrast with Wilkinson's lightweight brief, the Republican senators are reported to have stressed the fundamental and supremely important constitutional issues raised by Sullivan's rogue actions (again, I could find no link to the brief):

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.'”

DoJ will be filing its brief later today and will surely stress similar issues.

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.


  1. I think that the firing (resignation) of Dana Boente was prompted by the Flynn case.

    Probably Boente had argued that FBI records about Flynn were not exculpatory and did not have to be released to Flynn. Perhaps Boente also argued against the DOJ pressuring Sullivan to dismiss the case.

    1. Very possibly, although the Flynn case really just capped Boente's long history of stonewalling oversight of any sort.

      "Pressuring" is not really the mot juste. DoJ simply submitted the standard motion for situations where they discover that the case lacks any factual basis.

  2. Meese has also filed an amicus today on this.

    The DOJ brief is out. Looks good for Flynn.

  4. Nice to see Mitch stepping up on this.
    Where's Lindsey?

  5. "Judge Emmet G. Sullivan should not be required to act as a “mere rubber stamp” for the government’s unusual move...."

    Cliff Notes summary - Judge Sullivan's judicial reasoning behind his illegitimate attempt at reprosecuting this case is that he has butt hurt and thinks someone should kiss it and make it well because, if he's going to sit on his brains, he might as well be comfortable.
    Tom S.

    1. I thought that was what Federal Judges were, rubber stampers considering the fake FISA court warrents.

      Rob S

  6. US Gov't filing to the Appeals Court in the "Sullivan" case...

    >> <<

  7. Undercover Huber demolishes Sullivan's Ghost-written brief. Numerous factual errors.


  8. "The judge’s lawyers"

    I'm just going to read that over and over until it either doesn't sound quite so ludicrous or just loses all meaning.

  9. Undercover Huber evaluates the Government's brief:

    >> <<

    read the whole thing. It's worth it.

  10. I wonder why Sullivan, and his attorney, responded as they did.

    1. Because they had absolutely no leg to stand on. I'm amazed that Sullivan didn't back out, because anyone coulda told him that Barr wasn't going to blink.

    2. >Because they had absolutely no leg to stand on.

      I am not a legal person, but my guess is they had choices on the strategy Sullivan could use in his reply.

      Possible Strategies:

      They chose #1.

      1. Fight it on the legal merits of the judge can do basically whatever he wants.

      The problem is this is guaranteed to be over ruled due to recent precedents by the DC Court and US Supreme Court, especially with the panel that was chosen. The chance to go to the entire circuit is low (I may be wrong on this - Entire Circuit Leans Left), much less the Supreme Court.

      From what I picked up, Barr was a very deadly litigator, so he will do what is necessary to win. This was shown by the DOJ bringing in heavy hitters, which seems a bit of over kill. But it's also sending a couple of messages, not just to Judge Sullivan.

      2. Some filing that would extend this fiasco past the election

      It sounds like this will be resolved quickly. Or may be there is something I don't see.

      3. Not sure if this was possible, but focus on the misconduct of the DOJ, and how ending the trial would stop this being looked into. As well as the transcripts that just came out of the Flynn Call.

      4. Back out.

    3. I'm not sure they had a plan--certainly not a well thought out one. All I can think is that they thought a basically incoherent resistance gesture would somehow gain critical mass in public opinion.

    4. Except the public is no longer paying attention. The latest shiny object is the riots.


    5. The battle is political. Even in losing a battle the strategic narrative must be fed.

      Orange man bad.

      Barr corrupt toady.

      Trump DoJ now corrupt.

      Trump/Republicans corrupting judiciary with each new appointment.

      Orange man bad.

      Repeated endlessly by Deep State press.
      Tom S.

  11. "amazed that Sullivan didn't back out".
    I'll bet it's blackmail.
    Clinton wouldn't promote those who he couldn't control.

  12. Apparently 11 House Republicans also filed a brief.

    My REAL question is what the disposition will be and how long will it take? This better not get reassigned to another judge at District Court level. It needs to be dismissed. Pronto!

    1. I believe it will be dismissed and that if other proceedings are required it will be reassigned--Sullivan has exhibited patently biased and frankly irrational behavior.

  13. Sullivan (via Wilkinson's brief) is attempting to create a new and first-of-its-kind judicial process in which a federal circuit judge may arrogate to himself the power of investigator and usurper of prosecutorial discretion.

    At one level, this is an issue of legal analysis and a higher Appeals Court may intervene as necessary.

    At another level, this calls into question the fitness and competence of the individual serving as judge. Even after the Appeals Court rules on the merits, there needs to be evaluation of Sullivan's fitness to continue on the bench.

    1. District judge.

      I agree that there should be disciplinary action. The patently false statements that shipwreckedcrew pointed out would be the perfect avenue.

      Sullivan is basically a rioter in blackrobes.

    2. Too bad. This was the perfect case for Sullivan with his record on prosecutorial abuse..

      But he chose his hill.

    3. "there needs to be evaluation of Sullivan's fitness to continue on the bench."

      Wouldn't be at all surprised if that subsequently happens and Sullivan is strongly encouraged to retire without fanfare.

  14. Flynn's former attorneys must be sweating bullets. I think they were working with the corrupt DOJ prosecutors to bleed Flynn dry of all his assets and then tell him he needed to plead guilty to save his son. It is clear that Flynn was threatened with his son being prosecuted.

    Flynn's former attorneys could have had the case dismissed very early on simply by demanding the original 302 and the field office telling their bosses that there was "no there, there."