D.C. Circuit authorizes Judge Sullivan to hold hearing in Flynn case

The U.S. Court of Appeals for the D.C. Circuit, sitting en banc, has overturned a ruling by a panel that had granted Michael Flynn’s petition for mandamus against Judge Emmet Sullivan. The panel’s decision, by a 2-1 vote, had pulled the plug on Judge Sullivan’s attempt to hold a thorough hearing in the Flynn case, notwithstanding the Justice Department’s motion to dismiss. But by a vote of 8-2, the full Court says Sullivan can proceed.

I think this is the correct result. The mandamus petition was premature because Sullivan hasn’t ruled one way or the other on the government’s motion to dismiss the Flynn case. All he has done is called for briefing, including by an amicus he appointed, and a hearing to help him determine how he should rule on the motion.

Sullivan shouldn’t have done this. He should simply have granted the DOJ’s motion. But this is not the kind of error that, under the law, is properly fixed by the extraordinary remedy of a mandamus petition. Mandamus petitions are used in extraordinary cases to fix erroneous decisions without waiting for an appeal. They have not been used to tell a judge how to rule on a matter he’s considering.

The key passage from the majority’s decision is this:

Nothing in this decision forecloses the possibility of future mandamus relief should the District Court’s disposition of the motion to dismiss or other order violate the separation of powers or some other clear and indisputable right. We need not and do not now pass on the issues that might be presented by such a mandamus petition; it suffices that no such petition is before us, and that the ability to seek mandamus at the appropriate time (if necessary) provides “[an]other adequate means to attain the relief,” [citation omitted] such that the writ may not issue now.

Try as they might, neither Petitioner, nor the Government, nor the dissent has identified a single instance where any court of appeals has granted the writ to decide a trial court motion without first giving the district court an opportunity to make a decision—especially where the objections raised on mandamus were never raised to the district court. We are aware of none.

The only dissenters were Judges Rao and Henderson — the two members of the panel who sided with Flynn. Judge Griffith, a Bush 43 nominee and, generally speaking, a conservative, concurred with the majority. He wrote:

Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic, see Judiciary Act of 1789, ch. 20, § 22, 1 Stat. 73, 84; 28 U.S.C. § 1291, and we are aware of no case in which a court of appeals has ordered a district judge to decide a pending motion in a particular way.

Moreover, as its counsel repeatedly stated at oral argument, the district court may well grant the Government’s motion to dismiss the case against General Flynn. In fact, it would be highly unusual if it did not, given the Executive’s constitutional prerogative to direct and control prosecutions and the district court’s limited discretion under Rule 48(a), especially when the defendant supports the Government’s motion. But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time.

I have less confidence in Judge Sullivan than Judge Griffith appears to have. And it’s unfortunate that Sullivan decided to proceed with what strikes me as a circus proceeding in what should have been a straight forward, ministerial matter.

I understand Sullivan’s frustration. If Flynn’s current position is correct, then he lied in Sullivan’s court when he entered a guilty plea and stuck to the lie even though Sullivan gave him opportunities to back off. No judge likes that.

Sullivan’s frustration doesn’t justify the bizarre course he has chosen to take in this case. At the same time, the course Sullivan has taken thus far does not justify the granting of a writ of mandamus, for the reasons stated in the majority opinion and in Judge Griffith’s concurrence.