Monday, July 20, 2020

The Flynn Team's Opposition To Rehearing En Banc Re the Mandamus

As most of you will already be aware, Michael Flynn's legal team, led by Sidney Powell, filed their response to Sullivan's ridiculous petition for an en banc rehearing of the three judge panel's issuance of a mandamus requiring him to dismiss the Flynn case. The whole concept involved in this is absurd under the US Constitution's separation of powers, but with Dem judges there's never any telling when politics touches on the case.

You can read the whole response here. Basically, Powell goes down the line rebutting the absurd claims of Sullivan's petition. For our purposes I'd like to contrast a central contention that Powell advances with a pretty good article by Shipwreckedcrew, written before Powell's response was public.

In addition to the legal argumentation, Powell minces no words in advancing her claim that Sullivan's actions derive from prejudice against Flynn based in totally improper motives:

Judge Sullivan’s stubborn disagreement with the Government’s decision to dismiss the case does not confer the right to contest it himself or through his amicus. His actions smack of vindictive animus against General Flynn and judicial overreach that have no place in America’s justice system. No precedent even suggests a 'hearing' on a substantial government motion to dismiss. Not one.
The government does not have a monopoly on irreparable harm from a district court’s infringement of Executive authority. An Article III judge acting outside his constitutional bounds violates a defendant’s right to Due Process. General Flynn has a constitutional right to be prosecuted by the Executive Branch — if at all — and certainly not by the Judicial one.
General General Flynn also has a right not to hemorrhage time and money in a proceeding that is moot because the previously adverse parties are now aligned  — or to receive orders from a judge no longer presiding over a live controversy. General Flynn’s personal freedom is at stake. He cannot travel freely, obtain employment, or enjoy a normal life until this case is dismissed. His very liberty is wrongly impaired until the dismissal is granted. Forcing General Flynn to continue undergoing such an ultravires prosecution in violation of Articles II and III causes him irreparable harm, and the gravity of the district court’s usurpation of power demands a prompt dismissal.

Judge Sullivan’s extraordinary actions arise solely from his disagreement with the Government’s decision to dismiss the case againstGeneral Flynn. Not only did he wrongfully tar General Flynn with a baseless assertion of treason, but he has been vocal that General Flynn should be punished severely. Disagreement over a charging decision provides no basis to deny the government’s motion.
The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes.

Shipwreckedcrew, by contrast, in a sense gives Sullivan the benefit of the doubt. In a sense, his argument is that Sullivan is sincerely misguided--misguided in a way that is peculiar to judges. I happen not to agree with that assessment of Sullivan, but it does seem clear that many judges have difficulty recognizing that--under our Constitution--the Judicial Branch does not have a monopoly on determining what the "interests of justice" are. Unfortunately, Shipwreckedcrew's expression of this idea is a bit less than straightforward:

Judge Sullivan’s argument rests on the presumption that the “leave of court” language ... presumes that if a district court judge disagrees, then the view of the district court judge prevails, the government cannot drop the case, and the government must continue with a criminal prosecution of a case under penalty of ..??.. what exactly if they refuse? 
That is where Judge Sullivan’s argument falters on the rocky shoals of the “separation of powers” doctrine.  The idea is that this motion requires a “decision”, and that if he disagrees with the proffered justification of the government, then his view prevails. This judicially constructed decisional framework cannot coexist with “separation of powers” because the judicial decision is an inappropriate resolution under “separation of powers” doctrine on a subject committed to the sole discretion of the Executive branch.
Judge Sullivan mistakenly assumes that because this is a “motion” pending in his court, he’s obligated to provide a “decision”, and as part of coming to his “decision” he wants to have a “hearing” – maybe with testimony and/or confrontation – where the government’s statement of “in the interests of justice” will be tested. 
Judge Sullivan’s argument is that the pending motion is no different than any other motion filed by a litigant, and that the hearing Judge Sullivan proposes to conduct is the same “ordinary course of business” hearing he might conduct on any other motion filed by a litigant.  In doing so he ignores case law, considerations, and findings of the Panel that the subject matter of the inquiry he seeks to conduct is beyond the outer boundary of legitimate inquiry by the judicial branch.  Wanting a hearing in the “ordinary course” is not the savior of his intentions because they exceed the scope of the judiciary’s role as explained by the Panel decision.

Interestingly, Shipwreckedcrew has dug up what he says is the only en banc Circuit Court decision that bears directly on this question: United States v. Hamm. The court in the Hamm case comes to the correct decision, but it does seem that they struggle to articulate their reasoning at times. Nevertheless, the application to the Flynn case is absolutely clear. In essence, here's what the Hamm court is saying:

In order for a judge to challenge a prosecutorial motion to dismiss a case, the judge must have an "affirmative reason to believe" that the prosecutors were motivated by reasons that "clearly" run against the public interest. If the prosecutors advance substantial arguments for their decision, a judge cannot second guess "the prosecutor’s evaluation of the public interest"--he "must grant the motion to dismiss." In the Flynn case, of course, the government did, in fact, submit substantial reasons for believing that the interests of justice required the case to be dismissed, beginning with the improper predication of the entire investigation.

Here is the actual language of the Hamm court:

“We continue to hold that even when the defendant consents to the motion to dismiss, the trial court, in extremely limited circumstances in extraordinary cases, may deny the motion when the prosecutor’s actions clearly indicate a “betrayal of the public interest.”
Unless the court finds that the prosecutor is clearly motivated by considerations other than his assessment of the public interest, it must grant the motion to dismiss.
Instead, this is a case in which the Government, in consideration of the appellants’ extraordinary past cooperation, and in order to assure their continued cooperation … decided that it would best serve the public interest to dismiss the indictments against the appellants.
Neither this court on appeal nor the trial court may properly reassess the prosecutor’s evaluation of the public interest. As long as it is not apparent that the prosecutor was motivated by considerations clearly contrary to the public interest, his motion must be granted.
The district court appears to have placed the burden on the prosecutor to show that dismissal itself would be in the public interest. The language of this court in Cowan and the Supreme Court in Rinaldi makes it clear that the motion should be granted unless the trial court has an affirmative reason to believe that the dismissal motion was motivated by considerations contrary to the public interest. As the district judge acknowledged, the prosecutor is the first and presumptively the best judge of where the public interest lies. The trial judge cannot merely substitute his judgment for that of the prosecutor.
The determination of the public interest in the first instance is for the prosecutor to makeWe are not in a position to second-guess his determination, …
And here is Shipwreckedcrew's conclusion:

Once again, Judge Sullivan expresses the hubris and conceit of a member of the judiciary – the presumption that it is his role and responsibility to “police” the actions of the Executive within the criminal justice system no matter the subject.  Under this rationale, he could question prosecutors about the decision-making process behind any motion, for no reason other than to merely satisfy himself that nothing is being withheld.  No subject matter would be beyond his ability to inquire and not “process”. The litigants would be required to yield to his view of what he views as his “right” to conduct an inquiry. 
Judge Sullivan has been on the federal district court bench for more than 35 years and remains very active at age 73.  The role of the district court judge might be one of the least scrutinized, yet hugely powerful roles in the American judicial system.  I would guess that more than 99% of the decisions made by a district court judge are either not reviewable in a meaningful way or are subject to review only to determine whether the judge “abused his discretion.” His word is, in almost all instances, the last word. 
In my experience, (and I welcome others to contradict me), as judges get older and have more time on the bench, they take on a more imperious nature. Having their decisions followed becomes a “given” based on their experience.


  1. I agree with the general premise that judges get more imperious. It's hard to be a judge- almost everyone quits being honest and forthright with you, since, if they're lawyers, they never know when they may have a case before you. Litigants treat judges very tenderly, and the staff worships the ground they walk on. The chambers, esp'ly in Federal courts, have become palatial, and, no matter how hard they try, they just can't stay in touch with daily life. This type of treatment will get to anyone after several years, taking away the type of intimacy and interaction we all need to serve as a keel in the sea of life. Having said all that, I don't think it has anything to do with the way Judge Sullivan has been acting in the Flynn case!! The rulings in the Flynn case go against the grain of other positions he's taken in similar cases in the past, and run a high risk for personal embarrassment, which is something somewhat public people usually try very hard to avoid. Most of his arguments in the mandamus seem to be of the "I can just do whatever I want" variety, but since he has outside counsel, I think that's just the best they can do with the existing case law. The law on his not being a party seems pretty insurmountable, and if he is a 'party,' as Powell points out, he filed his en banc request 15 days after the circuit court's order, when the rule only allows 14 for 'parties.' This is also fairly incomprehensible for a party represented by counsel. Basically, no one but Judge Sullivan knows all that's motivating him, but it has to be something very dramatic and important, much more than typical judges experience, imho.

    1. Totally agree. It seems to me that all this feeds into reasons why his petition will be turned down. I simply think that the Circuit as a whole has a lot to lose from aligning with Sullivan at this point.

    2. I certainly understand why you think that, because you're looking at it rationally.

      I do not believe that rationality and personal reputations are the right filter here. It's resistance theater, and any monstrosity can be sanctioned to defeat Trump and what he represents for their power.

      I think they really believe they can put Humpty back together again after they have achieved their goal.

  2. @Mark

    "I simply think that the Circuit as a whole has a lot to lose from aligning with Sullivan at this point."

    How much does it have to lose from aligning with Judge Wilkins?

    Who wrote the 2-1 dissent...

    1. "How much does it have to lose from aligning with Judge Wilkins?"

      Aligning with Wilkins would, ultimately, cause loss of credibility, but IMO not as much as aligning now with Sullivan--because of Sullivan's clear personal animus which quite evident in the record: treason, perjury twaddle.

    2. Have they not already lost their credibility? With the political "judges" (really politicians) allowed to pontificate without censure we are little more than Mexico. A failed state. Those on the bench have no one to blame but themselves when they are being killed regularly for not doing as factions or various warlords dictate.

    3. I'm just being a smart aleck. If the Obama/Clinton majority on the DC Circuit wants to align with the Obama-appointed Wilkens for political purposes...and rehear (delay) the this point I won't fall out of my chair.

    4. Nor will I. The thing is, the Fokker case that Powell relies on was written by the Obama appointed Chief Judge of the Circuit. It's very recent and to reverse that would be pretty weird.

    5. Yes, it would be weird.
      But, then, Sullivan was the hero of Powell's "Licensed to Lie" and he had no qualms about reversing himself in order to put the screws to Flynn/Trump.

    6. "no qualms about reversing himself", likely from being blackmailed (about his kid?).

    7. Besides all the issues of aligning itself with Sullivan or Wilkins or other appearances, I just don't see how they combine that with the huge procedural issues of solid case law that Sullivan is not a "party," and therefore not entitled to appeal, or, if he could somehow be deemed a 'party,' under the Rule, his request was not timely. Courts of Appeal are very protective of their jurisdiction, and it would be a huge deal for them to align themselves with perceived chicanery, AND bend the rules that just aren't bent to do so. Time will tell, though! wouldn't be following it if it weren't interesting and suspenseful...haha

    8. Exactly, totally agree. Lay down a rule that allows lower court judges to makes all sorts of demands? Sounds crazy to me. Haha, indeed!

    9. The subtle point I'm evolving towards is the fear that the DC Court of Appeals will go forward with an en banc hearing. This should eat up a couple of weeks or a month or two, which has huge value to the Resistance. In making this prediction I am not predicting how the Court will rule on the merits.

    10. Sed contra ...

      It seems there was no support for a rehearing on the Appellate level, which forced Sullivan to file a petition on his own--and a day late.

    11. All we know is that Sullivan filed before any single Circuit judge did. Not that there was no support.

    12. By "no support" I didn't mean "no single Circuit judge." What I meant was that the votes were not not available to support an en banc rehearing. My understanding is that a single judge can PROPOSE an en banc rehearing but the full Circuit takes a vote on whether or not to do so, and the decision to do that requires a majority. It seems clear that there was no majority after 14 days and that's why Sullivan filed his petition on the 15th day. A party to the action has to file for rehearing within 14 days. That's what Powell and the government are talking about in their responses.

    13. OK, we don't *know* that there was no support, but odds are that he'd have sat tight, and let others make the noise, had he known of support.

    14. Both Margot Cleveland and shipwreckedcrew agree with me that there is still plenty of opportunity for mischief...and certainly delay.

  3. My work in the bankruptcy courts makes me wonder if the government could have filed a Notice of Dismissal with Prejudice which requires no judicial cognizance and is clerical. Let Sullivan try to undo that!

    1. Good question! I'm no litigator either but perhaps the analogous provision in a criminal case is the provision which requires 'leave of court'.