As anticipated, defense counsel Sidney Powell has filed a Petition for Writ of Mandamus with the United States Court of Appeals for the District of Columbia Circuit.
I have written previously about why I believe the controlling case law mandates that Judge Sullivan dismiss the case, and the Petition makes many of the same points while relying heavily on the Fokker Services case that I explained in detail.
I have also written previously about Judge Sullivan likely having committed error at the time he “re-took” Gen. Flynn’s guilty plea at what was expected to be a sentencing hearing. That issue is touched on as well.
A “petition for writ” is a legal vehicle through which a party seeks to have a higher court direct that a lower court take specific action as set forth in the petition, on the basis that existing legal authority compels the lower court to act in a manner sought by the moving party, and the lower court has no discretion or authority to act in any other manner. It seeks an order from the higher court “mandating” that the lower court take the specific action requested in the petition.
The petition filed by Gen. Flynn’s counsel makes three specific requests for relief: 1) that the motion by the government to dismiss the prosecution of Gen. Flynn be granted; 2) that the orders entered by Judge Sullivan allowing the submission of amicus briefs be vacated; and 3) that the case be reassigned to a different judge in the District of Columbia District Court for any further proceedings in the case.
I don’t have time at this point to do a “deep dive” in the analysis. But here are some preliminary thoughts, which I hope to build on later in a story with a more detailed analysis.
First, the style adopted by Powell in writing the “Facts” section of the petition strikes me as not the correct approach in an appellate document. It reads too much like a play to “public sentiment”. My approach to writing appellate briefs was very much the “Joe Friday” model — “Just the facts.” Let them speak for themselves, and do not needlessly invite criticism by too much “characterization” of factual events. In too many instances — for my taste — Powell gives an antagonistic characterization of facts which are favorable to her position on their face, and the characterization takes away from the point they would make if simply stated. I’ll provide some examples in a later, more detailed story.
As for the legal arguments, I think she has hit a “Grand Slam” in attacking Judge Sullivan’s orders appointing Ret. Judge Gleeson, and Judge Sullivan’s statement that he will allow amicus briefs to be filed. She makes a strong and well-supported argument that both actions are inappropriate and unlawful. Her argument is based on points of law I have never had a reason to research, so the case law she cites is new to me, but I find it highly persuasive.
Simply put, she points out that allowing the filing of amicus briefs or appointing amicus counsel is expressly allowed under the Rules of Civil Procedure, but the Rules of Criminal Procedure are silent on those issues. She then turns to a significant volume of case authority which holds that where language is included in one set of rules and excluded in another set of rules, principles of statutory construction that guide interpretation require the court to conclude that the exclusion was purposeful. The conclusion that must be drawn is that when the Courts and Congress drafted and adopted the Rules of Criminal Procedure, they did not allow for the filing of amicus briefs on purpose — and as a result allowing such briefs is a violation of the rules. She notes case law that says the rules are binding on the courts just like they are binding on litigants who appear before the courts. She then points out that the authorities cited by Judge Sullivan in issuing his order that he will allow amicus briefs are completely unsupported, as he relies on 1) inherent authority, 2) a citation to the Civil Rules of Procedure, and 3) the Fokker Services case in the appeals court where amicus briefs were allowed — which is specifically provided for in the Rules of Appellate Procedure.
As for the Order appointing Judge Gleeson, Powell makes great use of the language in Judge Gleeson’s Washington Post OpEd where he clearly expresses views hostile to the motion to dismiss by DOJ, which strongly indicates he has formed distinct and specific opinions about the justification for DOJ’s motion before coming into the case, calling into question his fitness for serving as a surrogate for the Court which must remain neutral in criminal proceedings. The petition then challenges Judge Sullivan’s stated basis for his “authority” to appoint Judge Gleeson on the same basis the order allowing filing of amicus briefs was challenged.
I think the argument made with regard to Judge Sullivan being compelled to dismiss the case under Rule 48(a) is not as strong — but my primary concern is not the content of the argument, but rather the procedural posture of the case. I think the Appeals Court would likely agree on the substance — there is little room or discretion for Judge Sullivan to do anything other than dismiss the case at some point. The weakness, in my opinion, is that Judge Sullivan has not yet “refused” to dismiss the case, he’s simply taking unprecedented steps along a much longer path than is necessary to get to that ultimate conclusion. Normally, a petition for mandamus is aimed at some incorrect action taken by a lower court and seeks an order from the higher court directing the lower court to take a specific contrary action. The petition here is seeking to take the initial decision — to dismiss or not dismiss — away from the district court judge. The Appeals Court might take the view that the district court is better situated to make that decision in the first instance, and if a party is dissatisfied with the district court’s decision then it can bring an appropriate vehicle for a remedy to the Appeals Court at that time when the district court’s decision is known, and the district court’s stated rationale can be evaluated.
I would note that one strong argument she makes is citing to case law that states decisions by the Executive Branch on issues of prosecutorial discretion are to be given a “presumption of regularity” by Courts. What that means is there must exist a good faith basis on the part of a court — actual facts known by the court — before any inquiry into the decision-making process can be justified. A court is not allowed to conduct such an inquiry on “spec” — there must be facts to overcome the presumption of regularity given to a co-equal branch of government. The DOJ motion includes a lengthy explanation of how an independent review of the work done by the FBI and Special Counsel’s Office led to a series of discoveries and disclosures that caused the DOJ to re-evaluate the merits of continuing with the prosecution. That should be sufficient, and in the absence of anything beyond speculation and cater-wauling by the usual suspects on the left and in the media, Judge Sullivan has no basis to do that which he proposes to do in reaching a decision on the DOJ motion.
But I want to reserve further analysis for Powell’s Rule 48(a) argument for a bit later today.