This morning—in a stunning decision that broke from usual standards of judicial process and self-restraint—D.C. Circuit Judges Neomi Rao and Karen LeCraft Henderson granted Michael Flynn’s preemptive mandamus petition to shut down Judge Emmet Sullivan’s consideration of the government’s motion to dismiss the criminal charge against Flynn.  The court ordered Judge Sullivan “to grant the government’s Rule 48(a) motion to dismiss” the charge before the judge even considers the merits of that motion, apparently in order to prevent him from convening a hearing on it.  Judge Robert Wilkins dissented.

The oral argument gave little hint that this was coming.  Indeed, Judge Henderson repeatedly noted both that Judge Sullivan hadn’t even had the chance to rule yet, and that Flynn could remedy any injury by appealing if and when Sullivan denied the government’s motion and entered a judgment of conviction—both of which made mandamus a singularly inappropriate remedy here.

As I’ll explain below, the panel’s decision is plainly wrong and the en banc court of appeals will almost certainly reverse it if the case reaches that stage.  But it now stands as the law of the D.C. Circuit, and everyone who cares about the state of the federal courts should take notice.

Before explaining why I believe it’s clear that the panel erred in several important respects, I should stress once again that I don’t really care much—and I think you shouldn’t either—whether Michael Flynn is ultimately convicted for willfully making false material statements in his January 24, 2017 interview with two FBI agents, or whether Flynn ever spends any time in prison (something that’s very unlikely in light of the President’s pardon power).  In part this is because (as I’ve previously recounted) many acts of misfeasance by other actors in this affair—from the President to Attorney General Barr to former FBI Director Comey—have been more damaging to governmental functions and norms than Flynn’s false statements were; and in part it’s because Flynn’s lies to the FBI weren’t remotely his own most egregious actions, before or after January 24, 2017—indeed, they weren’t even the most damaging criminal offenses he committed.

Whatever one thinks of Flynn’s misconduct and whether it merits criminal punishment, however—and whatever you think of the damage Attorney General Barr has done to the reputation for the evenhanded administration of justice in the Executive Branch, including in the Flynn case itself (see also my second Flynn post)—in today’s decision Judges Rao and Henderson have touched a new nerve by damaging the integrity of the judicial process.  And that raises an entirely different order of concern.  [UPDATE:  Orin Kerr is right that the decision is obviously redolent of Bush v. Gore, in that the higher court in each case “astonishing[ly]” “told the lower court to just flat out stop what it was doing.”  In Flynn, as in Bush v. Gore,

you would have expected the lower court to be able to rule on the motion.  A motion to dismiss was filed, and the district court was considering it and wanted to hear different perspectives before ruling.  Judges get motions, consider them, have hearings, and rule on them all the time.  That’s the way it normally works.  Instead, the D.C. Circuit concluded that the district judge couldn’t even consider the question.  Merely having a hearing on how to decide the motion is a harm, the court concluded.  And the court didn’t trust the district court to approach the law the right way if they let him proceed in the normal way.  So remarkably, the D.C. Circuit just took control and told the lower court to stop it.]

There are three major errors at the heart of Judge Rao’s opinion.

1. The first error is that the opinion doesn’t make any effort at all to explain how Flynn—the party petitioning for mandamus—lacks adequate alternative means to remedy his injury if Judge Sullivan denies the motion to dismiss.  Of course, that’s because Flynn does have such a remedy: he can appeal if and when the judge denies the motion and enters a judgment of conviction against him (something that may well not even happen).  The panel majority doesn’t suggest otherwise.  And that should be the beginning and the end of this mandamus petition, as Judge Henderson herself has explained:  “Mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.”  In re al-Nashiri, 791 F.3d 71, 78 (D.C. Cir. 2015).

The panel, however, decided to grant the petition, anyway, based upon an alleged injury to the Department of Justice if Judge Sullivan so much as holds a hearing on the government’s Rule 48(a) motion to dismiss.  As Judge Wilkins emphasizes, however (dissent pp. 7-9), the government hasn’t petitioned for mandamus relief, and so any particular injury it might suffer as a result of Judge Sullivan’s hearing is irrelevant to whether Flynn has other means of remedying his own injuries–and thus whether Flynn is entitled to extraordinary mandamus relief.

The opinion for the court insists (p.17) that “[o]ur court has squarely rejected [Judge Wilkins’] argument” that a court may not issue a mandamus petition where it’s not necessary to remedy the petitioner’s alleged harm.  But that assertion about what “our court” has previously done is simply made up.  The court of appeals hasn’t ever “rejected” the argument, “squarely” or otherwise, because (for good reason) no one has ever before had the audacity to offer it as the basis for mandamus relief.  The only D.C. Circuit opinion the majority cites, Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003)—the case that allegedly “squarely” rejected Judge Wilkins’ argument—was one in which the government sought a writ of mandamus to remedy its own injuries.  The majority points to a footnote in Cobell, but in that footnote the court merely held that the government didn’t have to file its mandamus petition separate from its interlocutory appeal rather than (as it had done in Cobell) in a single filing.  The majority also cites a 1943 Supreme Court case—Ex parte Republic of Peru, 318 U.S. 578 (1943)—but that’s inapposite, too, as Judge Wilkins explains (dissent pp. 8-9 n.2):  The Court there decided that the petitioning party, the Republic of Peru, had a basis for immediate relief to remedy its own injury.

Thus Judge Wilkins is right (p.8):  “The majority cites no cases in which a court has concluded that a petitioner has satisfied her burden to show no other adequate means to attain her sought-after relief based on the absence of alternative avenues of relief for a different party that did not petition the court for the writ.”

2. Even if a court of appeals could grant a mandamus petition based upon an injury to a party (here, the Executive Branch) that hasn’t asked for mandamus relief on its own behalf—something the law doesn’t allow—this would hardly be the ideal case in which to do so because, contrary to the majority opinion, the Attorney General and the Department of Justice wouldn’t be injured by Judge Sullivan’s unexceptional decision to convene a hearing on the government’s motion to dismiss.

Citing a Judge Henderson opinion for the court of appeals denying mandamus to a Guantánamo detainee petitioner, the majority acknowledges (p.8) that “‘an abstract concern with the separation of powers’” doesn’t rise to the level of an irreparable injury warranting mandamus (quoting al-Nashiri, 791 F.3d at 79–81).  The majority notes, however, that mandamus could be appropriate (or it would be, anyway, if only the government itself had petitioned for such relief, which it didn’t do here) if it were necessary in order to prevent a district court from taking an action that would “usurp[] a specific executive power.”

The opinion never explains, however, how Judge Sullivan’s altogether ordinary hearing would “usurp” an executive power.  Of course it wouldn’t.  The majority assumes (id.) that “[t]he contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority.”  More broadly, the majority insists (id.) that Judge Sullivan has “demonstrated [an] intent to scrutinize the reasoning and motives of the Department of Justice”—which allegedly would be an “irreparable harm[] that cannot be remedied on appeal.”

But as Judge Wilkins points out by analogizing to a hearing on an allegation of selective prosecution (dissent pp. 10-11), it’s extraordinary to suggest that the Constitution prohibits any judicial hearing at which a court scrutinizes a government actor’s motive—let alone the Department’s legal “reasoning”!  Judicial proceedings that involve “probing the government’s motives” (p.19) are ubiquitous.  Think, for instance, of the Supreme Court oral argument in the travel ban case, Trump v. Hawaii.  Or the recent Supreme Court case (Department of Commerce v. New York) concerning the Commerce Secretary’s inclusion of a citizenship question on the census, in which the Supreme Court held that the stated justification was pretextual.  Or a Batson hearing that examines why a prosecutor struck a potential juror.  The examples are endless.  And when it comes to “scrutinizing” the reasoning the government has offered for its actions . . . well, that describes virtually every oral argument in which the Department of Justice has ever participated on behalf of a government defendant.

Moreover, there’s no reason to think Judge Sullivan will “require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion,” let alone to do so in a way that goes beyond constitutional bounds.  If the government chooses to rest its case for its motion to dismiss on the papers it’s already filed—even though the justifications they offer for the motion are entirely implausible—presumably Judge Sullivan will allow DOJ to do so.  And if the Judge unexpectedly does require discovery into internal DOJ processes in a manner the government thinks the Constitution doesn’t permit, it can at that point seek its own mandamus petition to narrow the scope of such discovery.  That’s a time-honored remedy the Department has pursued in other contexts.  See, e.g., In re United States, 197 F.3d 310 (1999) (granting writ of mandamus to require district court to grant motion to quash subpoenas directing the Attorney General and Deputy Attorney General to testify about why they rejected the U.S. Attorney’s request to withdraw a notice of intent to seek the death penalty).

3. Ultimately, the panel majority’s decision to grant the mandamus petition is predicated upon its view (p.13) that there’s simply no good reason for Judge Sullivan to hold a hearing because there’s an “absence of any legitimate basis to question the presumption of regularity” in the reasons that DOJ has offered for its motion to dismiss the charge against Flynn.

Even if that were true—i.e., even if the proper ruling on the motion to dismiss were obvious and irrefutable—that wouldn’t be sufficient grounds for issuing a writ of mandamus to preclude the judge from even having a hearing on the motion and deciding it himself.  (If that were enough, courts of appeals would constantly be confronting and granting mandamus petitions to require district courts to decide pending motions in a particular way, rather than never doing so . . . until today.)

But it’s not true—not by a long shot—that there’s no legitimate basis to question the presumption of regularity in the reasons DOJ has offered for its motion to dismiss the Flynn charge.  Whether or not Judge Sullivan should, or will, eventually grant the government’s motion, there’s plenty of reason to question the regularity of what DOJ has done here—well more than enough, in any case, to invite briefing and a hearing on the question.  To be sure, the majority is right (p.15 n.18) that there’s no direct evidence in the record that DOJ acted for an impermissible reason—such as to benefit someone close to the President or to do the President’s bidding.  (The majority appears to concede (p.15 n.5) that if the record did contain such evidence of impermissible motive—even of a motive far less egregious than presidential favoritism, such as animus toward the victim or the prosecutor’s “desire to attend a social event”—a hearing would be permissible to inquire into the possibility of such prosecutorial motive.)

What DOJ has argued with respect to its motion, however, is, in several respects, so irregular, and so inconsistent with its practice and its longstanding legal views, that it’s almost certain that the reasons DOJ has offered for its motion to dismiss aren’t the real reasons.  (Whether the undisclosed real reasons are improper, and whether Judge Sullivan should deny the government’s motion to dismiss if he finds that they are, are different questions—ones that depend in large measure on what, exactly, those reasons actually are.)

The majority opinion focuses (pp. 6-7) on DOJ’s argument that dismissal is warranted because there’s “newly discovered evidence casting Flynn’s guilt into doubt,” such that the prosecution allegedly can’t “prove either the relevant false statements or their materiality beyond a reasonable doubt” in a jury trial.  And “[i]nsufficient evidence,” the majority notes, “is a quintessential justification for dismissing charges.”

I’ve already explained, at length (see Part 17 of this post), why this argument doesn’t pass muster.  In brief:  It’s not necessary, to begin with, for the government to prove the elements of Flynn’s Section 1001 offense to a jury, because Flynn has pleaded guilty to it—twice.  DOJ often accepts pleas to offenses that it believes the defendant committed but that it might be difficult to prove at trial, including in cases (this might well be one) where it accepts a plea in exchange for not filing more serious charges that could be proved to a jury.  Moreover, Flynn has already attested under oath, in writing and in elaborate allocutions with the district court, to all of the elements of the offense—admissions that would be powerful, perhaps determinative, evidence if the case were tried before a jury.  And, most importantly, even apart from Flynn’s own admissions, the evidence the government has at its disposal with respect to both his willful lies and their materiality is overwhelming—far stronger than in many cases DOJ takes to trial.

In light of all that, DOJ’s argument that it’s dismissing the charge because it couldn’t prove the elements of the offense at trial beyond a reasonable doubt is simply implausible—and thus transparently pretextual.

DOJ’s purported reasons for its motion to dismiss are also suspect because it’s relying, as a justification for its argument that its evidence is inadequate for conviction, on a definition of “materiality” that’s flatly inconsistent with the case law and with DOJ’s longstanding view of that element of a Section 1001 offense.  (See subpart (iii) of Part 17 and the fourth from last paragraph of this post.)  As Judge Wilkins writes (dissent p.18), “[t]his is no mere about-face; it is more akin to turning around an aircraft carrier.”

The majority responds (p.13 n.3) that that doesn’t matter because “[i]n the initiation and cessation of a prosecution, it is the Executive’s view of the law that matters, not ours, because of its authority over criminal charging decisions.”  But if that “view of the law” is preposterous, inconsistent with what DOJ consistently argues, and would call into question many convictions that DOJ regularly secures—which is the case here—DOJ’s insistence on that improper view of the law surely does “matter” in assessing whether there’s reason to at least question whether there are grounds to overcome the presumption of regularity that applies to government motions to dismiss charges.*

* * * *

The panel’s stunning action this morning should set off alarm bells for several reasons.  First, in Judge Wilkins’s words (dissent pp. 2-3), the panel was willing “to set aside th[e] Court’s well-established and well-founded concern for the maintenance of the ordinary course in order to proceed in an unprecedented manner.”  That novel course is indefensibly at odds with settled procedural law, disrespects the regular order of things, and prevents a respected district judge from simply doing his job.  If it were to take hold as precedent, it would radically transform mandamus practice and the relationship between the trial and appellate courts within the D.C. Circuit.

Second, precisely because the majority’s grant of the petition is so unprecedented, and so out of kilter with the court of appeals’ many precedents on mandamus (including several written by Judge Henderson), it can’t help but raise the suspicion that Judges Rao and Henderson might have ventured on such a course in order not only to protect the Trump Administration from having to provide an honest accounting of its extraordinary Flynn filings, which starkly depart from regular DOJ practice, but also to even prevent a district court judge from so much as inquiring about and assessing whether such filings are consistent with the “presumption of regularity” that’s ordinarily appropriate when it comes to DOJ’s representations to the Judiciary.

Finally, one can’t help but wonder whether this abrupt action is intended to bolster the Attorney General’s campaign to undermine the legitimacy of the Russia investigation more broadly—here, not only by discrediting a perfectly legitimate component of the Special Counsel’s investigation, but also by ratifying Attorney General Barr’s revisionist history that there was nothing for the law enforcement and intelligence communities to be concerned about in early 2017, after they learned of what Flynn said in his phone calls with Russian Ambassador Kislyak.  As I wrote four weeks ago in my first post about the Flynn affair, Barr

treats as “laudable” an effort to undermine the incumbent President’s conduct of foreign affairs in real time—and to do so in order to accommodate a hostile nation that had just engaged in a concerted effort to distort the U.S. presidential campaign in order to secure the election of the very President whose agent is engaged in the stealth diplomacy, and where that very President (and/or his agent engaged in the shadow communications) might possibly be in debt to that nation, and/or compromised by it.  [Barr’s account] also assumes that the FBI should have turned a blind eye to all this even after several top officials of the new administration made repeated false representations to the public about the new National Security Advisor’s communications with that foreign power, either knowing that the statements were false or, more troubling still, having been assured by Flynn that the communications were very different from what the Bureau knew them to be.  If the Attorney General of the United States believes all of that conduct was “legitimate,” “appropriate” and “laudable,” and that there wasn’t any “legitimate” basis for investigating it, then how can anyone be confident that the Department of Justice under his stewardship will faithfully fulfill its constitutional responsibilities?

In their opinion today, Judges Rao and Henderson appear to endorse (p.6) Barr’s assertions that “newly discovered evidence cast[s] Flynn’s guilt into doubt” and that “the FBI interview at which Flynn allegedly made false statements was ‘untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.’”  It’s disturbing enough that the Barr Justice Department is wielding its power to rewrite history and sweep an Administration official’s misdeeds under the rug.  It’s even more distressing when a court rushes in to prevent even a modest judicial accounting of the DOJ’s actions, in defiance of accepted standards.  Yet that’s just what this panel did today.


* One other, less central error is also worth brief mention:  In a footnote (p. 6 n.1), the majority rejects Judge Sullivan’s argument that greater judicial scrutiny is warranted when a Rule 48(a) motion is filed after a guilty plea.  Citing Wright & Miller, the majority notes that “Rule 48(a) continues to apply even after conviction and sentencing while the case is on direct appeal, and the same standard applies to a government request for dismissal at that stage as applies if the request came prior to trial.”

That much is true.  But when the motion to dismiss comes at this late stage, after a guilty plea and just before the judge’s own sentencing and entry of judgment, one important, usual reason to grant such a motion is absent—namely, that denying the motion would not require executive officials to take steps to prosecute a case they would prefer not to prosecute.  There’s very good reason that judges are deeply reluctant to effectively force the government’s hand in that way.  But here, that’s not an issue, because DOJ wouldn’t have to take any affirmative, substantive steps to help secure Flynn’s conviction if Judge Sullivan denies its motion for leave to dismiss the charge.  That doesn’t mean that Rule 48(a) is inapplicable in this posture, or that the “standard” for addressing the motion is different.  It does mean, however, that the Judge need not consider one usual, important consideration in deciding whether to grant or deny the motion.

Photo: Mark Wilson/Getty Images