A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders

1280px-Emmet_G._Sullivan_2012We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn.  Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal.  The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss.  In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion. 

The order is interesting in its language:

“Upon consideration of the emergency petition for a writ of mandamus, it is ORDERED, on the court’s own motion, that within ten days of the day of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020.”

Often judges are give the option of a response. This is stated in nondiscretionary term. Now consider the language directed at the Justice Department: “The government is invited to respond in its discretion within the same ten-day period.”

The judges reviewing the matter will be Circuit Judges Karen LeCraft Henderson, Neomi Rao and Robert L. Wilkins.

I have previously written about my concerns over inviting third party briefings in a trial hearing on sentencing or dismissal. However, my greater concern is over writings from legal experts who suggest that Sullivan could and should deny the motion to dismiss. While I have said that there are good-faith arguments to be made over the content of the review under Rule 48, much of this analysis ignores the strong case law to the contrary and the implications of such action for criminal defendants in the future.

Rule 48 (a) states that “The government may, with leave of court, dismiss an indictment, information, or complaint.” Such motions however have been consistently left to prosecutorial discretion.  The notion that Sullivan would insist on the Justice Department prosecuting a case is bizarre, particularly when the Justice Department has determined that it can no longer do so ethically and that the prosecution was marred by misconduct.

US-CourtOfAppeals-DCCircuit-SealI have been highly critical of the legal commentary suggesting that Sullivan would be on good, if not commendable ground, in denying this motion and sentencing Flynn.  There are a myriad of cases that reaffirm the prosecutorial discretion underlying these motions as an Executive Branch function. Putting those cases aside, the D.C. Circuit handed down a strong precedent in favor of the Justice Department in U.S. v. Fokker Servs. B.V., a case where the appellate court granted the relatively rare relief of a mandamus order against a trial judge.  In that case, the trial court was also leery of a decision not to prosecute.  The Justice Department wanted to enter a Deferred Prosecution Agreement (DPA) with a Dutch company accused of violating U.S. sanctions and export control laws. The trial court felt the company was getting off too lightly. Sound familiar?

The D.C. Circuit swatted down the trial judge, ruling that

“The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces … whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.. . . Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether … to dismiss a proceeding once brought.”

Notably, the decision was written by Sri Srinivasan, an Obama appointee who has been on the short list for liberal Democrats.  Judge Srinivasan stressed that “‘judicial authority is … at its most limited’ when reviewing the Executive’s exercise of discretion over charging determinations.”  That decision was unanimous with judges from across the ideological spectrum (Judge David B. Sentelle, Judge Laurence H. Silberman and Judge Srinivasan).

That is the authority that Judge Sullivan actually cited for his orders.

225px-ruth_bader_ginsburg_scotus_photo_portraitThen there was the unanimous decision recently in U.S. v. Sineneng-Smith by Justice Ruth Bader Ginsburg on the issue of courts using outside or third-party arguments.  We recently discussed the decision. The Court slammed the United States Court of Appeals for the Ninth Circuit in a criminal immigration case.  Like Sullivan, the Court was not satisfied with the party arguments so it ordered a round of new amicus briefing and then relied on the arguments of the outside parties.  Notably, this was still better than what is happening in the Flynn case, which is a trial proceeding before sentencing.

Ginsburg wrote that the effort violated the “party presentation principle.” She declared “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], and when [cases arise, courts] normally decide only questions presented by the parties.”  The reliance on such third party arguments unified the Supreme Court as “depart[ing] so drastically from the principle of party presentation as to constitute an abuse of discretion.”

Nevertheless, on site after site legal experts are assuring readers that Judge Sullivan has ample authority and reason to deny the Flynn motion as well as enlist third parties to make critical arguments in a trial criminal proceeding.  For example, Noah Feldman and Laurence Tribe, are widely cited for supporting Sullivan’s authority.  However, mainstream media and many sites have been declaring that Sullivan can and should refuse the dismissal.

Some of these sites have relied on the recent research of Professor Thomas Frampton who contested the common view that Rule 48 is meant to protect defendants like Flynn.  Frampton flipped the presumption and says that it was actually meant “to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants” and thus “drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn.”   The research is quite interesting but in my view unpersuasive.  First and foremost, Frampton (to his credit) acknowledges that “the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong.”  Thus, he is contesting existence precedent, which is perfectly acceptable but telling.  Second, I do not see how this position could be upheld.  It would mean that courts could regularly refuse to allow defendants to go free because they disagreed with prosecutors.  Unpopular defendants could find themselves captives to judges who simply want to mete out their own vision for law enforcement.  In the Flynn case, such judicial overreach would be assisted with the help of third parties brought into the case by the court.

The Justice Department has long opposed such judicial interventions. Bill Clinton’s Attorney General Janet Reno warned Congress years ago not bar the court from overruling decisions of the Justice Department, stressing that “Our Founders believed that the enormity of the prosecutorial power — and all the decisions about who, what, and whether to prosecute — should be vested in one who is responsible to the people.” When he was Deputy Attorney General, Eric Holder made the same objections that prosecutors must make such decisions and that he would resist courts wanting to “trammel upon the Executive’s core prosecution power.”

In other words, there is much for Judge Sullivan to address in ten days if he is going to defend a possible denial of the motion and his outsourcing of the argument in the case.

Here is the order: D.C. Circuit order

275 thoughts on “A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders”

  1. Aren’t plea deals usually a lesser charge based on a promise of cooperation? I wonder what the prosecutors had on Flynn that the judge is aware of. What could Flynn have been charged with that would make him plead guilty to a “lesser” charge? Considering that the judge had some pretty pithy words for him at his original sentencing, it’s no wonder he’s pxssed at the prosecution for wanting to just forget the whole thing.

    1. Weissman/Mueller had threat of prosecuting Flynn’s son. This was the key “side deal” that prompted Flynn to cop the plea. Normally, side deals must be disclosed to the court, but it wasn’t in this case at Mueller/Weissman’s insistence. So Sullivan’s pithy words were based on incomplete information. Most judges would react negatively to being misled by the prosecution. One wonders why Sullivan has gone the other way. Does someone “have something” on him? Just wondering.

  2. Thank you, Professor Turley for bringing clarity to this chaos. Sadly, your point regarding the plethora of sites and media outlets defending and supporting Judge Sullivan’s unconstitutional actions reveals an undercurrent of in our society of those who value power over constitution. It reveals a willingness to undermine the principles that underlie our republic for the purpose of wielding political control. Unless such voices are silenced by a principled majority, I fear that our experiment with democracy will be short-lived.

    1. I agree, it feels like they have broken down the gates. Even when Sullivan goes down for this, we now know that too many Americans will accept mob justice when it is a man in a black robe that leads the way.

  3. Take this Judge Sullivan ““The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces … whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.. . . Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether … to dismiss a proceeding once brought.””

    1. The trial is not in the charging phase. It’s been adjudicated and in sentencing, which is the prerogative of the judicial branch.

      1. The prerogative is bounded by clearly defined limits and precedent. The DC Court may yet find in Sullivan’s favour, 50/50 i’m thinking. An inventive response to the DC Court order is needed though. His “friends” will help. Fascinating.

      2. Book– I remember when you tried to correct three lawyers here on the intricacies of district court’s limited jurisdiction. It took a quote from the publication of the administrator of the courts to make you scurry for cover. Your legal opinion has very little merit.

        1. Anon’s delusions of grandeur outshine anything he has to say.

          Anon under the name of Jan F. used to brag that he did his own taxes. Based on that Anon believes that he has the knowledge to be the head of the Fed.

            1. …Or if one cheats and has a low income better to do your own taxes so that the numbers can be manipulated.

        2. I suspect if you checked his e-mail account, you’d find a mess of correspondence with a certain prosecutor in Frisco, cut and pasted into posts here. At least from Shill you get the attributions.

  4. “However, my greater concern is over writings from legal experts”

    They’re not legal experts. They’re Wilsonian progressive hacks.

  5. As Andrew McCarthy pointed out this morning; the appellate court is giving Sullivan a face-saving way out of the corner he has painted himself into. Either he takes it, or he loses on appeal before the ink is even dry.

  6. The appeals court knows three things:
    1. its own precedent which makes Sullivan’s position untenable;
    2. this is a hot potato case that nobody wants any part of hence the “lets get it over with” scheduling order;
    3. Sullivan is outside the navigational beacons but the appeals court doesn’t want this kinda mandamus motion to become routine. Look for a denial with a not-to-subtle hint that the matter should end at Sullivan’s door.

    1. Mespo– I respect your judgment but am inclined to take the view that there will not be a denial. This seems to be a case for a clear, and perhaps embarrassing, precedent to curtail similar actions in the future. But we will not know till we know.

      1. Young;
        On the law, that’s right but too often that’s a secondary consideration to politics.

        1. Mespo– True. Looking forward to seeing how it turns out. Funny, the non-lawyers here are much more sure of everything than the lawyers are. Really no surprise.

    2. I don’t think Sullivan’s taking hints and I wouldn’t be surprised to discover the man is significantly impaired but unaware of it.

    3. I think #3 is very likely. I wouldn’t be surprise that they send it back to Sullivan WITH an order than he rule on the motion within “X” days or they will.

      1. Jones– That too seems likely. But if I were on the court I would see the value of making this a humiliating experience to draw a clear and scary boundary to a court’s authority; much as the Court did with the Ninth.

    4. It is kind if a sad commentary on the current state of the Law when you have to wonder whether or not an Appeals Court is going to do the right thing and issue a Mandamus or not. I can see Mespo’s points about why they should, but also Young’s point about how you can’t count on them to do the right thing.

      Penelope told me early on that knowing the judge was as important as knowing the law. It took me a few examples to believe her, but I caught on.

      Squeeky Fromm
      Girl Reporter

      1. I thought Penelope was your cat. My cat tends to be rather opaque when advising me.

  7. Great explanation – but I was also hoping for speculation on what Sullivan’s “steelman” argument is likely to be?

    As an aside, I’m wondering if a Rep majority Congress couldn’t use this case to impeach Sullivan next year.

    As long as gov’t agents, FBI directors, IRS leaders, judges, can use and abuse their power to hurt innocent folk, as long as the abuse occurs without punishment, it will continue. All democracies need better ways to punish the wrong-doing and rule-breaking of gov’t bureaucrats and other gov’t agents.

      1. Absurd– True. They, like Romney, are Weimar politcians who will let petty dictators grow until they are no longer petty so long as they keep corner offices.

      2. As Tucker Carlson pointed out, the vast majority of the outrageous Russia collusion Mueller investigation occurred during the first two years of the Trump administration when Republicans controlled both houses of Congress and every single committee. What did Ryan, Graham, Gowdy, McConnell, Burr, et al, do to expose it and shut it down? Nearly nothing.

        Why isn’t McCabe being prosecuted for his crimes? Will Comey be prosecuted? Brennan? Clapper? Rice? Will a single one of these corrupt liars and leakers be held to account by serving actual prison time? How about the corrupt actors on the Mueller team?

        1. Anon– The utter lassitude of the Republicans scared me as much as anything during that time. That party needs replenishment of strength and integrity and the other party needs prison.

  8. Our justice system is supposed to be prejudiced (from the root words meaning “to judge in advance”) on the side of innocence. Basically the idea is the same as those people sitting around at tables with signs saying “Prove me wrong.” In every single case, as far as I can understand it, the judge, and jury, when applicable, are supposed to be sitting there with a sign in their minds that reads, “The Defendant is innocent. Prove me wrong.” Because of this initial, built-in prejudice that is the bedrock of American law, any judge should practically trip over him or herself in haste to dismiss a case that the DOJ has deemed unworthy of prosecution. When this foundation is taken away, our system of justice is on a very slippery slope indeed.

  9. I gotta do Judge Sullivan an Irish Poem! Because he is really sullying and tainting the whole legal system with his silly refusal to do his job. Oh this one even gets TWO titles!

    Sully Forth??? or “Taint, Misbehaving???”
    An Irish Poem by Squeeky Fromm

    There once was a bad Federal Judge-
    Who was wrong, but he still wouldn’t budge!.
    There was something amiss
    When he failed to dismiss,
    Sooo, I guess he held some kind of grudge???

    Squeeky Fromm
    Girl Reporter

  10. “First and foremost, Frampton (to his credit) acknowledges that “the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong.” Thus, he is contesting existence precedent, which is perfectly acceptable but telling.”

    That is what we have telling shills, like bythebunk, for several days now, and they pretend not to get it. Plus, if the Rule 48 argument is sooo good how come that “Lion of Legal Knowledge” Litman didn’t use it in his oped???

    Squeeky Fromm
    Girl Reporter

    1. Lawyers have an obligation to disclose contrary precedents and present a rationale for not following them in the immediate case. One can disagree with Frampton and still recognize that he took an honorable course.

      I wouldn’t give weight to Tribe’s opinion. I don’t read plagiarists.

      1. Yep. You are supposed to recognize precedent before trying to overcome it. Which, some of the shills here are not lawyers and they don’t work in the field so this whole situation is RIPE for misrepresentation. But honestly, when some of the people who are lawyers, and supposedly experts – their lack of candor and refusal to deal with the reason why Good DOJ moved to dismiss is inexcusable.

        Oh what a morning! I went out shopping early this morning to avoid the crowds and some dud told me I was too pretty to be wearing a mask. I guess that is a new pickup line going around. Sooo, on the bright side, people are adapting to Life Under Covid.

        Squeeky Fromm
        Girl Reporter

        1. “dud told me I was too pretty to be wearing a mask. ”

          Probably true, but finish the story and tell us what you told him.

    2. I’m going with Litman hadn’t read what is still an obscure tract just published. JT wouldn’t have known about if I hadn’t sent it to him. Tried to help you out,too but it became just more facts you try to avoid.

      1. Apparently in Joe’s circle anyone can identify as black and female so the field of candidates is rather wide. I am waiting to hear Hank Johnson’s remark on the need for the first midget vice president or, as he said in Congress, “abnormally small person.”

        Ya think they have gone too far with identity politics?

      1. There is that risk. They haven’t lost their reputation; they have made it ugly and terrible and dishonest.

  11. Not that you likely noticed, I did “make light” of some of your posts on Twitter I love reading your stuff you seem a fair man and I appreciate that. I should do better. I think I know better. If “pretend” there was something deeply worrying i’m not helping with my smart ass comments.

  12. “The notion that Sullivan would insist on the Justice Department prosecuting a case is bizarre”

    Prof turley is making things up again. Sullivan did not “insist on the Justice Department prosecuting a case”

    1. Thomas Geoghegan has said that after 1970 or thereabouts, appellate opinions consisted of armies of clerks madly quoting each other. “A judge might write like Cardozo in one opinion and Ken Kesey in the next, depending on which of his clerks was assigned to write the opinion”.

    2. Someone suggested that maybe Judge Sullivan can save some time and just staple some amicus briefs to his response.

    3. I think even Justice Holmes or Cardozo would have a hard time talking himself out of this filthy mess and Sullivan is no Holmes.

  13. JUDEGE SULLIVAN listened to the wrong so called legal experts who have been 100% since Trump took office, they make things up and come up wired ideas.

    Judge Sullivan You Should RESIGN you ruined your good name due to your Hatred of Trump and listening to the Never Trump crowd.


    1. Judge Sullivan will not resign. That is not something Judges who think they have unlimited power do. Just like Dictators, they bleive they are “all powerful.”

      The Judge should resign, but will not, because he knows this is a lifetime appointment, and that he will not be impeached.

      However, I would hope that the Appellate Court, not only tells him to stand down, but uses its voice to do it in a way that sends a message to all Judges, who feel that they can do whatever they like, without any consequences.

      He needs more than just a “slap on the wrist.” Judge Sullivan is harming the image of the entire Judicial system, and he must be made to apologize to Gen. Flynn, to pay any additional costs for Flynn’s counsel, and he must apologize to the DOJ and FBI, and made to pay for their costs as well.

      It is time to punish rogue Judges who abuse their positions for whatever reason they may feel they are entitled to do so.

  14. Maybe it was his plan all along to use this to get removed so that his libtard friends can’t blame him for setting Flynn free?

  15. Regardless of political opinion, we should all support an impartial and fair judiciary.

    Judge Sullivan used to be a respected juror. Lately, he has let his personal animus toward Flynn blind him.

    As an aside. If any of us gets into legal trouble, let us hope that we get an attorney as dedicated and fearless as Sidney Powell.

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