On Thursday of last week, Judge Emmet Sullivan filed with the Court of Appeals for the DC Circuit a Petition for Rehearing En Banc of the matter involving the Petition for Writ of Mandamus filed by General Michael Flynn.
Judge Sullivan is asking the entire appeals court - 11 judges – to vote on whether to rehear and decide anew the Petition filed by General Flynn seeking a "writ of mandamus", ordering Judge Sullivan to grant the government's motion to dismiss the case against General Flynn without further proceedings.
The government has moved to dismiss the Flynn case under Federal Rule of Criminal Procedure 48(a), which states that any such dismissal by the government can only be done with "leave of court." A three-judge panel of the DC Circuit Court of Appeals granted the Petition last month and ordered Judge Sullivan to dismiss the case without further proceedings.
What is Judge Sullivan's Argument?
The Petition by Judge Sullivan makes three inter-related claims. First, it claims that the decision by the Panel is contrary to the Supreme Court’s decision in United States v. Rinaldi, where the Court considered a similar matter. In this case, the lower court had conducted a hearing into the motives of the government for seeking to dismiss a case after a defendant had been convicted at trial. Judge Sullivan claims it is contrary to Rinaldi for the Panel to order that he cannot conduct a similar inquiry in the hearing he had scheduled.
He further argues, that there is no court decision which says he is not allowed to conduct a hearing in the normal course on a motion filed by the government pursuant to Rule 48(a). He claims that the cases relied upon by the Panel to block him from conducting a hearing all involve circumstances where just such a hearing was held in the lower court, the lower court was allowed to rule on the motion, and then the ruling was examined by the appeals courts in the normal course. Judge Sullivan claims the same “ordinary process” should be allowed to take place with respect to the Government’s motion to dismiss, and the Appellate Court can take up his decision after he has made it.
I will return to the specifics of Judge Sullivan’s petition further down below, but I want to take first what I see as a fundamental misconception, and it is the premise upon which much of Judge Sullivan’s argument is based. I see this misconception as a matter of judicial conceit and hubris; that because some matter is required by Rule to run through his chambers for purposes of the orderly administration of justice, it is somehow reserved only to him to decide if the dismissal is “in the interests of justice” or “manifestly contrary to the public interest” as described by some courts.
This is where the use of imprecise legal “idioms” works to the disadvantage of finding clarity in the law. The phrase used in the rule is that case can be dismissed “with leave of court.” That is not a phrase in modern English which provides clear guidance on what is expected of the court. Because there was no guidance included in the Commentary to the Rule when it was inserted, it can be construed to mean any of the following:
- With permission of the court.
- With the approval of the court.
- With notice to the court.
- Upon agreement by the court.
- Upon decision of the court with regard thereto.
- With the court’s concurrence.
Judge Sullivan’s argument rests on the presumption that the “leave of court” language vests in the Court a decision as to the propriety of the motion. It presumes that if a district court judge disagrees, then the view of the district court judge prevails, the government cannot drop the case, and the government must continue with a criminal prosecution of a case under penalty of ..??.. what exactly if they refuse?
There are Three Coequal Branches of Government
That is where Judge Sullivan’s argument falters on the rocky shoals of the “separation of powers” doctrine. The idea is that this motion requires a “decision”, and that if he disagrees with the proffered justification of the government, then his view prevails. This judicially constructed decisional framework cannot coexist with “separation of powers” because the judicial decision is an inappropriate resolution under “separation of powers” doctrine on a subject committed to the sole discretion of the Executive branch.
Judge Sullivan mistakenly assumes that because this is a “motion” pending in his court, he’s obligated to provide a “decision”, and as part of coming to his “decision” he wants to have a “hearing” – maybe with testimony and/or confrontation – where the government’s statement of “in the interests of justice” will be tested.
Judge Sullivan’s argument is that the pending motion is no different than any other motion filed by a litigant, and that the hearing Judge Sullivan proposes to conduct is the same “ordinary course of business” hearing he might conduct on any other motion filed by a litigant. In doing so he ignores case law, considerations, and findings of the Panel that the subject matter of the inquiry he seeks to conduct is beyond the outer boundary of legitimate inquiry by the judicial branch. Wanting a hearing in the “ordinary course” is not the savior of his intentions because they exceed the scope of the judiciary’s role as explained by the Panel decision.
In the Interest of Justice?
Judge Sullivan is of the mistaken view, that what constitutes “in the interests of justice” is a definition personal to his point of view, and if DOJ’s justification doesn’t measure up then DOJ’s justification is wrong. The problem with this thinking is that DOJ and Judge Sullivan might have a fundamental disagreement with what constitutes “in the interests of justice”, but such a disagreement does not mean DOJ’s point of view is wrong and Judge Sullivan’s view is right on matters involving “charging decisions.”
The best expression of the limitations that a district court must confine itself within can be found in United States v. Hamm, an en banc decision from the Fifth Circuit Court of Appeals. In the body of that opinion are the following comments by that Court:
"We continue to hold that even when the defendant consents to the motion to dismiss, the trial court, in extremely limited circumstances in extraordinary cases, may deny the motion when the prosecutor's actions clearly indicate a "betrayal of the public interest."
Unless the court finds that the prosecutor is clearly motivated by considerations other than his assessment of the public interest, it must grant the motion to dismiss.
Instead, this is a case in which the Government, in consideration of the appellants' extraordinary past cooperation, and in order to assure their continued cooperation … decided that it would best serve the public interest to dismiss the indictments against the appellants.
Neither this court on appeal nor the trial court may properly reassess the prosecutor's evaluation of the public interest. As long as it is not apparent that the prosecutor was motivated by considerations clearly contrary to the public interest, his motion must be granted.
The district court appears to have placed the burden on the prosecutor to show that dismissal itself would be in the public interest. The language of this court in Cowan and the Supreme Court in Rinaldi makes it clear that the motion should be granted unless the trial court has an affirmative reason to believe that the dismissal motion was motivated by considerations contrary to the public interest. As the district judge acknowledged, the prosecutor is the first and presumptively the best judge of where the public interest lies. The trial judge cannot merely substitute his judgment for that of the prosecutor.
The determination of the public interest in the first instance is for the prosecutor to make. We are not in a position to second-guess his determination, …
As noted, this was an en banc decision from the Fifth Circuit, which sits in 13 judge panels for en banc consideration of cases. The vote on the outcome was 9-4. The case was decided in 1981, but remains the controlling precedent in that Circuit, and so far as I have found is the only en banc decision in any circuit on the subject. That fact gives it a bit more “persuasive” authority since it represents the views of so many judges in that court.
The key parts of the opinion are, in my view, the emphasis placed on the idea that when the government’s motion is well supported by way of explanation, the courts are powerless to substitute their view in place of the government’s view. This is not a situation where the government is obligated to convince the Court of anything. The Court says in all the highlighted language that it is the prosecutor’s role to determine what is in the public interest, and a disagreement on the part of the court with the prosecutor’s view on that question isn’t a basis to deny the motion.
The Court also said that it was not proper for the lower Court to put the prosecutor to the task of “proving” that its motion was in the public interest – the prosecutor either shows that to be the case or it does not. End of inquiry. That goes to the heart of Sullivan’s justification for wanting to hold a hearing – to explore the validity of the government’s justification. Separation of powers concerns blocks that.
Adversarial proceedings don't advance the Interests of Justice
Judge Sullivan has an “adversarial proceeding” in mind – setting the prosecution’s view as expressed in the motion, against a contrary view to be presented to Sullivan by the amicus counsel. Hamm says that’s an inappropriate role for the Court. The appropriate role is to look at the government’s motion and rule based on what is presented. It is not the Court’s role to put the government to the burden of “proving up” its claims with evidence, testimony, or otherwise.
Examples that are given about the prosecutor taking a bribe, or the prosecutor wanting to go on vacation rather than put the defendant on trial are not a basis to conduct a hearing for the purpose of “ruling out” such improprieties. If the court has information come to it independent of what is set forth in the motion, or if the motion – as is often the case based on my personal experiences – does not set forth specific reasons for the dismissal, then it would be appropriate for the Court to conduct a hearing.
If the Court has information that a prosecutor wishes to go on vacation, for example, and moves to dismiss the case in order to vacate a trial date and not mess up his plans, that is not “in the interests of justice” in any respect. That is not a matter of “disagreement” by the court with the Executive’s view, that is a circumstance where the reason for dismissal has no relationship to the “interests of justice”. The court can conduct a hearing to confirm that the information it has is correct – or incorrect as the case may be.
As I just mentioned, in my 22 years as a federal prosecutor I had occasions to file Rule 48(a) motions. My recollection is that in most instances the motion said nothing more than that the government was seeking to dismiss the case “in the interests of justice” – a purely conclusory statement that offered the judge no factual basis. The judges signed them without hesitation. It was a representation made to the court by a duly authorized member of the Executive Branch, and the Court had no reason to believe that my representation, as an officer of the court, was meant to mislead the Court. If I said the motion was made “in the interests of justice”, the court accepted that, and that was it.
Here, the DOJ motion sets forth over 20 pages a litany of reasons for why it has decided after more than 18 months they want to move to dismiss the case. Sullivan might not agree, and he might not be able to reconcile issues that took place in the case when it was under the supervision of the Special Counsel, but he’s not entitled to conduct a hearing so he can rummage around in the government’s decision-making process in search of information he deems inconsistent with the “interests of justice” rationale as set forth in the motion. He either accepts that rationale and grants the motion, or he rejects the rationale and denies it. But there is no “fact finding” inquiry allowed of the type he is contemplating.
Further dissecting Judge Sullivan's legal argument
Returning briefly to the legal basis offered by Judge Sullivan’s petition for rehearing, it’s easy to dismiss his claims that prohibiting a hearing conflicts with the Supreme Court’s decision in Rinaldi where there was such a hearing the lower court.
Nothing in the Rinaldi opinion suggests that any party objected to the hearing in the district court. Once the hearing took place and became part of the record of the case, the information that came out during the hearing was part of the record of the case. But the absence of an objection at the district court level, meant the issue of whether a hearing was proper was not before either the Court of Appeals or the Supreme Court in Rinaldi. The argument made by Judge Sullivan’s petition is specious and frivolous.
The same response holds true for the other cases where there were hearings in the district court on the Rule 48(a) motion. There is no suggestion in the decisions in any of those cases that the issue of conducting such a hearing was the subject of an objection. Thus, the fact that a hearing took place doesn’t resolve the question of whether a hearing should have taken place.
Regarding Judge Sullivan’s claim that "mandamus" relief here breaks with prior DC Appeals Court cases because only General Flynn sought relief, not the government, he ignores entirely the point made by the Panel on this issue, and the comment made by the Deputy Solicitor General which was not contradicted. The Panel noted that it was the Court that invited the government to reply, the government set forth the damage it would suffer if Judge Sullivan proceeded as planned, that harm was part of the record of the case, so it was taken into consideration in reaching the decision.
Deputy Solicitor General Wells was asked about this during the oral argument, and he responded that the government is often invited to respond in these kinds of cases, and when it does, the courts treat the government’s response in the same manner as if the government had sought relief. Deputy Solicitor General Wells also said in response to the question that the Government could file its own Petition and the same issue would be squarely before the Court – the only difference would be the waste of time and judicial resources associated with a second Petition for Writ of Mandamus seeking the exact same relief.
Third, Judge Sullivan argues that mandamus is not appropriate here because he has not even ruled on the motion, and given that he might ultimately rule in favor of the Government and dismiss the case, there is not "indisputable" right to relief by way of mandamus as both General Flynn and the government might get what they seek from the District Court in the first instance after a hearing.
Finally, Judge Sullivan’s petition takes square aim at the Panels’ reliance on the DC Circuit’s decision in US v. Fokker Services. An in-depth analysis of Fokker Services will have to wait for another day. But the Panel relied on much language in Fokker Services as justification for its view that the law is clear on the question of the propriety of the type of hearing Judge Sullivan intends to conduct, and it doesn’t matter whether the hearing is attendant to a Rule 48(a) motion, consideration of “Non-Prosecution Agreement” as was the case in Fokker Services, or hearing related to a “change of plea” motion as was the case in Ammidown. The Panel read Fokker Services, and the Supreme Court cases relied upon by Fokker Services since the decision in Rinaldi to prohibit a district court from inquiring into the subject matter in the manner contemplated by Judge Sullivan, still stand.
Judge Sullivan challenges this reading of Fokker Services by noting that the case doesn’t even mention the issue of what procedures related to a Rule 48(a) motion are appropriate, and what procedures are prohibited.
In Fokker, the DC Circuit granted mandamus relief because the district court had denied a motion that it should have granted. Fokker did not address the propriety of the hearing process leading to the decision denying the motion. Judge Sullivan claims that “his right” as a trial court judge to have that “process” is indisputable. He notes that the Panel decision even assumes some circumstances would warrant a hearing and inquiry into reasons for dismissal, mentioning the example of a prosecutor taking a bribe, and speculates how it would be hard to imagine such a fact being apparent on face of the government’s motion. Such information could only be uncovered if the district court is allowed to hold a hearing and inquire, he says.
Once again, Judge Sullivan expresses the hubris and conceit of a member of the judiciary – the presumption that it is his role and responsibility to “police” the actions of the Executive within the criminal justice system no matter the subject. Under this rationale, he could question prosecutors about the decision-making process behind any motion, for no reason other than to merely satisfy himself that nothing is being withheld. No subject matter would be beyond his ability to inquire and not “process”. The litigants would be required to yield to his view of what he views as his “right” to conduct an inquiry.
Judge Sullivan has been on the federal district court bench for more than 35 years and remains very active at age 73. The role of the district court judge might be one of the least scrutinized, yet hugely powerful roles in the American judicial system. I would guess that more than 99% of the decisions made by a district court judge are either not reviewable in a meaningful way or are subject to review only to determine whether the judge “abused his discretion.” His word is, in almost all instances, the last word.
In my experience, (and I welcome others to contradict me), as judges get older and have more time on the bench, they take on a more imperious nature. Having their decisions followed becomes a “given” based on their experience.
To be challenged in this instance on whether he can even conduct a hearing on a pending motion, and to be told by the Appeals Court that he has no discretion but to grant a motion based on a justification on its face that he believes is pretextual, is to strike at the very heart of what he sees as his exclusive authority as a district court judge to decide for himself.
The writ of mandamus issued by the Panel, directing him to grant the motion filed by DOJ to dismiss the case against General Flynn after Judge Sullivan has declared him guilty, is a humiliating turn of events.
His ego just cannot let it go.
Shipwreckedcrew has 22 years as federal prosecutor; six years in private practice. Follow on Twitter @shipwreckedcrew