For the foregoing reasons, the Petition for a writ of mandamus is denied. As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.
This is no more than a fig leaf, a brief nod to rule of law while providing free rein to Sullivan to conduct a virtually unfettered political inquisition in a case that DoJ declines to prosecute. While Sullivan will ultimately be denied his wish to prosecute--with the assistance of a rabid "amicus", a friend of Sullivan but no friend of justice--the abuse will continue.
Strikingly, the opinion, in declining to remove Sullivan for bias, refuses to discuss the issue of Sullivan's claims that Flynn has committed perjury by withdrawing his plea--an extraordinarily tendentious claim that would prevent virtually any defendant from fighting back against an overbearing government that had coerced a guilty plea.
Overall, the opinion of the Obama judges is remarkably shallow, given the extremely serious Separation of Powers issues that are involved in this case. In essence, the Obama judges simply sidestep those issues, claiming that the only consideration that matters is that a final order must first be entered by Sullivan. The claim is that that will be time enough for the Executive to protect its interests and Constitutional rights on appeal. That would amount to an intolerable claim of judicial supremacy--except that we know that such a claim would only be made against Republican administrations by Democrat judges. The lack of principle in this is breathtaking--it's about the election, and that's it. If you want to make yourself stupider, I'm sure there will be no lack of blogs and articles dissecting this travesty of legality.
In the circumstances, my view is that DoJ has no choice but to appeal to the SCOTUS in order to defend the Executive's constitutional status as an independent branch of government with its own proper powers. Whether DoJ appeals or not, however, make no mistake about this: This is a victory for Obama, through his judges. Flynn will remain muzzled throughout the election campaign and a powerful voice of criticism against Obama will be silenced for the time. It's a shameful defeat--even though I very much doubt it will ultimately stand--for our constitutional order. My personal hope is that DoJ will appeal, simply to force Chief Justice Roberts to declare himself.
In what follows, I will quote extensively from the dissenting opinions of Judges Henderson and Rao. The two judges split the dissent. Henderson dealt with the issue of Sullivan's outrageous bias, while Rao dealt with the harm to the Executive. What I've done is to delete references for the sake of readability. I believe their opinions are clear enough to be read with profit by non-lawyers. You can access the full opinion here. Both opinions are outstanding. Henderson's moral outrage at justice denied is moving. Rao's powerful defense of the Constitution shames the Obama judges--if they were capable of shame. The excerpts follow:
Because I believe the trial judge’s conduct patently draws his impartiality into question—and because I believe § 455(a) has teeth—I dissent and write separately to explain why the trial judge is disqualified from further participation in this case.
From early on in this case, the trial judge has demonstrated a pattern of conduct that, taken together, raises serious concerns about the appearance of impartiality. At Flynn’s plea hearing, the trial judge asked whether Flynn could be guilty of treason and noted his “disgust” and “disdain” for Flynn’s actions. [Note: This comment by Sullivan exhibited shocking ignorance of basic constitutional law.] When, over two years later, the government moved to dismiss the charges against Flynn, the trial judge encouraged the general public to participate as amici, and appointed an amicus, not to assist the judge with a complex area of law but instead to “present arguments in opposition to the government’s Motion to Dismiss." And his choice was not just any amicus; the day before his appointment, amicus penned an op-ed in The Washington Post suggesting that the trial judge could—and strongly implying that he should—deny the government’s motion.
And his earlier sua sponte appointment of amicus to oppose the government’s motion to dismiss, although apparently allowed, is further indication that he has from the outset appeared to view his role in adjudicating the government’s motion to dismiss as one that requires outside support—as if he were a priori antagonistic to the relief both bona fide parties seek. Even more telling of apparent partiality, the trial judge ordered amicus to opine on whether Flynn had committed perjury and should be held in criminal contempt. That direction indicates that, even if compelled to grant the motion to dismiss, the trial judge intends to pursue Flynn on his own.
But it is the trial judge’s conduct since the government’s May 2020 motion to dismiss, weighed in light of his earlier conduct, that delivers the coup de grâce to the last shred of the trial judge’s appearance of impartiality. In other words, if there was any doubt up to this point whether his conduct gives the appearance of partiality, that doubt is gone. Granted, the panel majority opinion resisted Flynn’s request that a different judge be assigned to this case. That decision rested primarily on the fact that Flynn’s request centered on the trial judge’s in-court statements, which are almost always insufficient on their own to warrant reassignment, and the fact that the trial judge was simply directed to grant the government’s motion to dismiss. But the trial judge’s “extreme” conduct throughout this case, culminating in his decision to ignore the writ and instead seek en banc review, demonstrates a “clear inability to render fair judgment.”
Lest we forget, at the center of this case is Michael Flynn—a criminal defendant whom the government no longer seeks to prosecute but who waits in limbo for his case to be resolved. The trial judge has delayed his consideration of the government’s unopposed motion to dismiss with little regard for the time Flynn has spent, and continues to spend, under the weight of now-abandoned criminal charges while the trial judge appears to continue the fight to preserve an improper role. Notwithstanding the trial judge’s counsel’s blasé representation during oral argument, it is intolerable for criminal charges to hang for months over the head of an individual whom the government no longer wishes to prosecute.
Mandamus is appropriate in this case. First, the Executive Branch has a clear and indisputable right to control the initiation and dismissal of prosecutions. The “leave of court” authority under Rule 48(a) is narrow and does not permit a district court to countermand the Executive’s decision to dismiss a prosecution. Fundamental principles of separation of powers require that individuals be prosecuted only by democratically accountable prosecutors, not by district judges with life tenure. The district court’s actions here exceed the proper judicial role and impair the Executive’s performance of its prosecutorial functions.
Second, the Executive Branch has no adequate alternative remedy to mandamus. Even if the district court ultimately grants the motion to dismiss, that would not alleviate the harms resulting from the supervision and inquisition delineated by the district court in its orders and briefing. As we have previously recognized, such an infringement upon the Executive’s charging authority “inflicts an ‘irreparable injury’” for which an appeal is not an adequate alternative remedy. Forestalling such irreparable harm to the Executive Branch makes mandamus appropriate here because the district court has adopted a flawed view of its authority in a manner that infringes on the exclusive constitutional powers of a separate and independent branch of government.
In denying the writ of mandamus, the majority relies only on its determination that Flynn and the Executive Branch have adequate alternative remedies, namely the eventual grant of the motion, the possibility of appeal, or even a writ of mandamus at some unspecified later time. The majority does not explain how these remedies would repair unlawful incursions on the Executive Branch. Instead, the majority dodges the constitutional questions by simply asserting a truism applicable to every mandamus case—a party could wait for an appeal or even a later mandamus petition. The ordinary availability of appeal does not relieve this court of its duty to examine the specific factual context of each mandamus petition and the precise irreparable harm alleged. We have no metric for judging the adequacy of alternative remedies without assessing the underlying harm—our cases demonstrate that the mandamus inquiry is holistic and its three prongs intertwined.
Nevertheless, the majority remains content with prospective remedies and sidesteps harms to the Executive. Our mandamus inquiry requires more than this piecemeal approach, particularly when grave separation of powers concerns are at stake. Judicial encroachments on the executive power cannot be remedied simply by requiring the Executive to submit to a district court’s supervision and then seek appeal. Mandamus is appropriate here.
... Here, clear legal error infects the proceedings below, which are shot through
with improper judicial efforts to superintend the Executive Branch’s prosecuting decisions. The harms are far from speculative, as the majority concludes, but instead are clearly laid out in the actions and representations of the district court. Such interference with the Executive Branch’s decision making is a judicial usurpation of power as well as an abuse of discretion under Rule 48(a).
By contrast, the Article III judicial power includes no authority to initiate, pursue, or oversee decisions to prosecute. As the Supreme Court recently admonished, “courts are essentially passive instruments of government. They do not, or should not, sally forth each day looking for wrongs to right. They wait for cases to come to them.” [Rao is quoting Justice Ginsburg.] The judicial power includes the ability to adjudicate guilt and issue a sentence upon conviction. That includes the power to serve as a neutral adjudicator in a criminal case, but does not include the power to seek out law violators in order to punish them.”). The Article III courts have no power to make prosecutorial decisions. And for good reason. Lacking in political accountability to the people, judges have no mandate to pursue justice by choosing whom to prosecute.
The majority retreats from any consideration of these bedrock principles by focusing exclusively on the fact that the district court has not yet concluded its proceedings. But we need not reach the end of those proceedings to recognize and provide a remedy for the ongoing harm to the Executive Branch. Whatever the scope of “leave of court” in Rule 48(a), this authority does not encompass the wide-ranging inquiry set in motion by the district court, an inquiry that includes expansive fact finding to probe the internal decision making of the Department. The majority maintains this is merely the “ordinary course.” Yet the following actions and representations demonstrate that the district court’s proceedings are anything but ordinary and the Executive Branch harms far from speculative:
The district court appointed as amicus John Gleeson, after Gleeson had just written an op-ed arguing the government’s Rule 48(a) motion “reeks of improper political influence” and advocating for the district court to hold “a full, adversarial inquiry,” including “hearings to resolve factual discrepancies.” Gleeson also suggested that the district court “compel the department to reveal ... the actual evidence underlying the prosecution,” and “order disclosure of” Executive Branch materials.
After granting Gleeson’s motion to hold a proceeding examining, inter alia, “any additional factual development [Gleeson] may need before finalizing [his] argument in opposition to the government’s motion,” the district court established a briefing and hearing schedule.
Gleeson asked the district court to probe the government’s motives for dismissing the case, affirmatively find the given reasons pretextual, and examine outside evidence—including presidential tweets and DOJ filings in other cases—to determine that the government acted in bad faith.
Gleeson also asked the court to consider the “background of a severe breakdown in the traditional independence of the Justice Department from the President” and to find that “[e]verything about this is irregular.”
In response to the petition for mandamus, the district judge asserted that he must resolve several factual questions and “inquir[e] into the facts set forth in, and surrounding, the government’s filing,” and determine whether these facts “provide reason to question the presumption of regularity that ordinarily attaches to prosecutorial decisions.”
The district judge further maintained that he will require additional information about why “[t]he motion did not explain the absence of any line prosecutors, including those who had previously prosecuted the case ... [or] contain any declarations or affidavits from witnesses with personal knowledge supporting the government’s new factual representations”; why “the motion does not mention Mr. Flynn’s March 2017 false statements to DOJ relating to his work for Turkey, which ... were relevant conduct for his guilty plea”; and why “the government has not moved to withdraw any of its prior pleadings in the case, including its sentencing memoranda, or any of the representations it previously made in open court regarding the purported materiality of Mr. Flynn’s false statements.”
The district judge also suggested that he will make “[a] finding” regarding whether “the Government’s later efforts to terminate the prosecution were ... tainted with impropriety” and that he “can—and arguably must” “question the bona fides of the government’s motions.”
The district judge will use the proceedings to determine “unanswered questions of fact”; to “resolve some of the factual and legal questions that remain outstanding”; “to inquire whether the government maintains its factual representations that Mr. Flynn is guilty as to those false statements”; and to “illuminat[e] the full circumstances surrounding the proposed dismissal and the government’s current position on Mr. Flynn’s conduct.”
In his petition for rehearing en banc, the district judge asserted he has the authority to “develop [his] own record of the prosecution’s charging decisions” and “confront government attorneys with their statements during trial that undermine their motion to dismiss.”
The district judge also stated he will use the proceedings to go beyond the four corners of the government’s motion to dismiss because “it is hard to imagine that such ‘malfeasance’ would be apparent on the face of the government’s motion.”
These proceedings and representations make clear the breadth and depth of the district judge’s inquiry, which includes factual development of DOJ’s motives and internal decision making. The district judge has stated that he will look outside the government’s motion to search for evidence that the presumption of regularity has been overcome. But this is to give the government no presumption of regularity at all. As we recently explained in granting a writ of mandamus to former Secretary of State Hillary Clinton, “[t]he mere suspicion of bad faith on the part of the government” cannot overcome the presumption of good faith. The district judge identifies nothing on the face of the government’s motion to dismiss that overcomes the presumption of regularity to which the Executive is entitled. Nor does the district judge offer any evidence of bribery, animus, or other similar reasons for digging into the internal workings of the Executive Branch.