Elections

Should Flynn’s Team Seek a Writ of Mandamus?

Given the government’s decision to drop the charges against Flynn, his case should be dismissed immediately. If not, and although quite rare, his team could try to seek a writ of mandamus.

After the Department of Justice decided to drop the case against former National Security Advisor Michael Flynn, it seemed like the presiding judge’s signature was a mere formality. Unfortunately, however, Federal District Judge Emmet Sullivan issued an order inviting third party groups with no interest in the case to file amicus briefs second-guessing the department’s decision to drop the case. Given past precedent, Flynn could very well seek a writ of mandamus based on the court’s unacceptable decision to politicize his case.

A writ of mandamus is an extraordinary writ. In Kerr v. United States District Court, the Supreme Court discussed this unusual remedy, stating:

The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. As we have observed, the writ “has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’”

And, while we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of “jurisdiction,” the fact still remains that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.

Such writs are used sparingly because they seem to make the judge a litigant by seeking immediate appellate review of a judge’s decision before final judgment has been rendered by the trial court.

In Kerr, the Supreme Court set forth some conditions for issuing such a writ. First, the court stated that a person seeking mandamus must have no other adequate means to attain the relief he desires. In addition, the petitioner has “the burden of showing that [his] right to issuance of the writ is clear and indisputable.” Finally, the court, in its discretion, must be satisfied that the writ is appropriate under the circumstances.

While these writs are extraordinary in nature, there is controlling precedent that Judge Sullivan appears to have considered, yet ignored. In U.S. v. Fokker Services B.V., the U.S. Court of Appeals for the District of Columbia Circuit granted mandamus when a judge refused a government charging decision. That decision emphasized that the executive branch, represented by the Justice Department, has prosecutorial discretion and that “‘judicial authority is . . . at its most limited’ when reviewing the Executive’s exercise of discretion over charging determinations.”

Most importantly, the court ruled in Fokker that a judge “cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges.”

In light of Fokker, Judge Sullivan’s decision in Flynn’s case is head-scratching. Putting aside the apparent and grotesque scheme that led to the eventual charges against Flynn, the decision of whether or not to prosecute was the government’s, not Sullivan’s.

In refusing to simply dismiss the case, Sullivan seemingly placed his subjective opinion about the case and/or the defendant above everyone else’s, including those prosecuting the case. Not only is this against established case law, it also appears to exceed the scope of his judicial authority.

Moreover, this decision appears to politicize Flynn’s case, as does the open call for amicus briefs and the judge’s decision to appoint a retired judge to argue against dismissal and to consider whether Flynn should face a perjury charge. By calling for such briefs, Sullivan opened the floodgates whereby special interest groups and others opposing Flynn could help to “fan the anti-Flynn flames” and continue to “tarnish” Flynn’s good name.

More importantly, as the law is clear regarding the judge’s discretion when the government seeks to dismiss charges, there is no real purpose for amicus briefs other than to delay the case and potentially to force President Trump’s hand in pardoning Flynn. As the Washington Times reports, “An amicus brief is usually submitted when a third party could be affected by the court’s decision or has unique information not previously presented in the case. It is very rare for a judge to request such motions in a criminal case.”

Flynn deserves better than this. He was the subject of a vile and premeditated plot to incriminate an innocent man for ulterior and vindictive purposes; namely, to get to the president. Given the government’s decision to drop the charges against Flynn, his case should be immediately dismissed. If not, his team would be right to seek a writ of mandamus.