Mandamus is an extraordinary remedy, and it would be truly extraordinary for an appeals court to grant a mandamus petition requiring a district court to grant a motion it has not yet ruled on. The natural thing would be to let the district court rule before intervening.
But the Flynn case is truly extraordinary. I had hoped that Judge Sullivan’s bizarre conduct — his appointment of on over-the-top amicus to advise him, his talk about adding a contempt of court charge against Flynn, the suggestion of an evidentiary hearing into the Justice Department’s motives, etc. — would cause the D.C. Circuit to take the case out of Sullivan’s hands by ordering him to grant the Department’s motion to dismiss.
However, after listening to this morning’s oral argument, I think it’s unlikely that the court will grant Flynn’s mandamus petition.
The panel consists of Judges Henderson, Wilkins, and Rao. Judge Wilkins is one of the left-wing judges President Obama appointed when he packed the D.C. Circuit. He was extremely hostile to the position of Flynn and the Justice Department. There’s no doubt about how he will vote.
Judge Rao is a Trump appointee. Her questioning favored neither side. She seemed to have problems with the positions of both.
Judge Henderson is a Bush 41 appointee. She agreed with Flynn and the government that this is an extraordinary case. She also seemed less than impressed with John Gleeson, the wild-eyed amicus appointed by Judge Sullivan.
However, Henderson kept raising the obvious point: Shouldn’t we follow “regular order” and give Judge Sullivan the opportunity to rule before intervening?
Sidney Powell, counsel for Flynn, and Jeff Wall, counsel for the United States (who I thought argued brilliantly), both had answers. Powell pointed to the harm Flynn suffers daily from the dragging out of a proceeding in which there is no longer a case or controversy. Wall pointed to the harm to the executive branch and to the constitution’s separation of powers doctrine if a judge conducts an inquiry into politicized matters such as the Justice Department’s motives and its internal deliberations.
Henderson seemed unpersuaded. She noted that Sullivan might dismiss the case in mid-July. If he does, the harms that concern the government will not accrue. Flynn will suffer some harm, but not enough, it seems, to convince Henderson to depart from “regular order.
Henderson’s position is based, as she said, on the view that Sullivan is a respected district court judge. As such, he should be expected to take the separation of powers seriously and to otherwise conduct himself properly.
This view is probably a fiction. Sullivan has long been respected, but he clearly has it in for General Flynn.
His animus may be understandable. Flynn either lied to the FBI or he lied in court when he admitted lying to the FBI. But understandable or not, Sullivan’s animus isn’t grounds for usurping the role of prosecutor in a case the actual prosecutor has moved to dismiss. All indications are that this is exactly what Sullivan intends to do.
But Judge Henderson seemed quite unwilling to treat Sullivan as an out of control judge. (I thought it telling that Henderson had no questions for Beth Wilkinson, counsel for Sullivan.) Instead, she did her best to signal to Sullivan that he needs, in effect, to control himself when he rules on the motion to dismiss.
I doubt that Sullivan will heed her signal. He appears to be on a mission to nail Michael Flynn and to thumb his nose at Attorney General Barr.
Based on what I heard this morning, he will probably have that opportunity. For a while longer, anyway.