UPDATED: The Government Weighs In Against Sullivan's Petition

The Government's response to Sullivan's petition for en banc rehearing of the three judge panel's mandamus to dismiss the Flynn case is, once again, signed by a host of top level DoJ officials--signalling how seriously DoJ takes this business. It is, however, quite different from the Team Flynn response. Instead of raising separation of powers issues once again--which were covered extensively in their previous support of the petition for mandamus--DoJ focuses largely on procedural issues revolving around the propriety of Sullivan's petition to the full Circuit. That may sound dull, but it's actually rather interesting. The argument comes in three parts. In the first two parts DoJ sets out general principles quite tersely and then pretty much just swats aside Sullivan's arguments as erroneous, misguided, incorrect, and so forth.

Here we go:

I. The Panel’s Interpretation Of Rule 48 Does Not Warrant Rehearing En Banc

Under Article II, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” In particular, the Executive has the “indubitable” power to “direct that the criminal be prosecuted no further.” Meanwhile, under Article III, a court may exercise “judicial Power” only over an “actual controversy”. Once the prosecution and the defense agree that a case should come to an end, there no longer remains a case or controversy over which a court may exert judicial power. 

“[T]he Supreme Court has declined to construe Rule 48(a)’s ‘leave of court’ requirement to confer any substantial role for courts in the determination whether to dismiss charges.” Instead, the “principal object of the ‘leave of court’ requirement” is “narrow”: “to protect a defendant against prosecutorial harassment when the government moves to dismiss an indictment over the defendant’s objection.”

In other words, Sullivan has been acting ultra vires--outside any shadow of legitimate judicial authority.

II. The Panel’s Application Of Mandamus Standards Does Not Warrant En Banc Review

The panel correctly recognized that mandamus is warranted where the right to relief is “clear and indisputable,” there is “no other adequate means to attain the relief,” and the issuing court is satisfied that “the writ is appropriate under the circumstances.”  And the panel properly recognized that those standards have been satisfied here. The Supreme Court has explained that “[a]ccepted mandamus standards are broad enough to allow a court of appeals to prevent a lower court from interfering with a coequal branch’s ability to discharge its constitutional responsibilities.”

This is as close as DoJ comes to raising separation of powers issues, but they keep it very on point--mandamus is proper for resolving such disputes. The end.

And then they get into the procedural issues, arguing under four points that Sullivan has no standing to seek appellate review, i.e., to address a petition to the full Circuit.

III. The Rehearing Petition Is Procedurally Improper 

The parties and now a panel of this Court agree that this case should come to an end. Yet the district judge, first through his contemplation of extended and intrusive proceedings on the government’s motion to dismiss and now through his petition for rehearing en banc, insists on keeping the litigation going. The rehearing petition raises a host of procedural problems: 

* Article III standing. A person has Article III standing to seek appellate review only if he has a “personal stake” in the litigation. But a judge does not have — and under the Due Process Clause, cannot have — such a stake. That is so even for a writ of mandamus, which “is not actually directed to a judge in any more personal way than is an order reversing a court’s judgment.”

* Party status. Only a “party” may petition for rehearing en banc. Judges were once considered nominal respondents in mandamus proceedings, but in 1996, “the rule [was] amended so that the judge is not treated as a respondent.” The district judge thus is not a party — not even a nominal one.

* Lack of court authorization. A district court may “address the petition [for mandamus]” only if “invited or ordered to do so by the court of appeals.” The panel ordered the district judge to respond to the mandamus petition, but neither the panel nor the full Court invited or ordered the judge to file an en banc petition.

* Lack of Solicitor General authorization. Entities in the federal government generally must obtain authorization from the Solicitor General before filing appeals, rehearing en banc petitions, and certiorari petitions. Even the Judicial Branch must follow that procedure. Yet the district court has failed to seek — much less obtain — the Solicitor General’s authorization for the petition here.

So, basically, Sullivan isn't involved in this case as a party and has no personal stake. Moreover, no one asked him to file this petition--so it's time someone told him to butt out.

IMO, this is a smart approach. These are complex issues that no Circuit Court should be inclined to take up. To try to finesse these issues would be opening a complete can of worms that the SCOTUS would surely smack down. Unless the full Circuit is determined to establish their "resistance" creds.

UPDATE: Shipwreckedcrew has a lengthy analysis of the Government's response. Like me he was fascinated by the procedural arguments that the Government advanced. Also like me, he notes that the Circuit Court--faced with the tangle of separation of powers issues that the procedural arguments raise--would be well advised to just drop this absurd petition:

... the more direct point being made by the Government Response is that none of these questions are worthy of resorting to en banc review to decide.  The Government’s argument is that dismissing the petition avoids all these subjects, and it avoids having them considered and decided in such a “weighty” proceeding as en banc consideration. 

The subtext to that argument is that the Judges of the DC Circuit should consider what might await them at another courthouse in Washington DC should they choose to entertain Judge Sullivan’s folly and resort to deciding these four “sticky” procedural problems. 

All that can be avoided by simply reinforcing to Judge Sullivan the message of Nancy Reagan’s to the nation in the 1980s — “Just Say No.”