It’s all over but the shouting, and perhaps one last bit of red tape. Within the last hour, the DC Circuit Court of Appeals issued a writ of mandamus ordering Judge Emmet Sullivan to dismiss the charges against Michael Flynn. The vote broke 2-1 on the order, which might have come as a surprise after the arguments two weeks ago in court over the Department of Justice motion to dismiss:

The general consensus after oral arguments was that the appellate court sounded unconvinced that the issue was ripe enough for an intervention. Instead, in an opinion authored by Judge Neomi Rao, the court ruled that Sullivan didn’t have the authority to deny the executive branch the right to withdraw the case, not even temporarily to conduct his own investigation. Under Fokker Servs BV among other precedents, the “leave of court” principle is only a pro forma step unless the judge has evidence to demonstrate corruption:

Whatever the precise scope of Rule 48’s “leave of court” requirement, this is plainly not the rare case where further judicial inquiry is warranted. To begin with, Flynn agrees with the government’s motion to dismiss, and there has been no allegation that the motion reflects prosecutorial harassment. Additionally, the government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt. See Mot. to Dismiss, ECF No. 198. Specifically, the government points to evidence that the FBI interview at which Flynn allegedly made false statements was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.” Id. at 2. In light of this evidence, the government maintains it cannot “prove either the relevant false statements or their materiality beyond a reasonable doubt.” Id. Insufficient evidence is a quintessential justification for dismissing charges. See Ammidown, 497 F.2d at 623 (explaining that a motion to dismiss should be granted “if it is explained to the judge that there was … an insufficiency of evidence … or other similar consideration”).

The government’s representations about the insufficiency of the evidence are entitled to a “presumption of regularity … in the absence of clear evidence to the contrary.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quotation marks omitted). On the record before the district court, there is no clear evidence contrary to the government’s representations. The justifications the district court offers in support of further inquiry—for instance, that only the U.S. Attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions—are insufficient to rebut the presumption of regularity to which the government is entitled.

Rao, writing for herself and Judge Karen Henderson, concludes that Sullivan’s proposed amici-brief circus would do “specific harms” to executive-branch authority, and might even be intended to do so. On that score, Rao took specific aim at Judge John Gleeson and his extraordinary investigative demands:

In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Newman, 382 F.2d at 481 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)). Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal. See Cobell, 334 F.3d at 1140 (“[I]nterference with the internal deliberations of a Department of the Government of the United States … cannot be remedied by an appeal from the final judgment.”); see also Cheney, 542 U.S. at 382. …

And we need not guess if this irregular and searching scrutiny will continue; it already has. On May 15, Gleeson moved for permission to file a brief addressing, among other things, “any additional factual development [he] may need before finalizing [his] argument” and suggesting a briefing and argument schedule. Mot. to File Amicus Br., No. 1:17-cr-232, ECF No. 209, at 1–2 (May 15, 2020). The district court granted the motion and then set a lengthy briefing schedule and a July 16, 2020, hearing. See May 19, 2020, Minute Order, No. 1:17- cr-232. In his brief opposing the government’s motion, Gleeson
asserted the government’s reasons for dismissal were “pretext” and accused the government of “gross prosecutorial abuse.” Amicus Br., No. 1:17-cr-232, ECF No. 225, at 38–59 (June 10, 2020). He relied on news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases. See id. at 43, 46–47, 57–59.

These actions foretell not only that the scrutiny will continue but that it may intensify. Among other things, the government may be required to justify its charging decisions, not only in this case, but also in the past or pending cases cited in Gleeson’s brief. Moreover, Gleeson encouraged the district court to scrutinize the government’s view of the strength of its case—a core aspect of the Executive’s charging authority. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003)
(condemning district court’s failure to dismiss criminal charges based on its view that “the government has exaggerated the risk of losing at trial”). As explained above, our cases are crystal clear that the district court is without authority to do so. See Fokker Servs., 818 F.3d at 742; Ammidown, 497 F.2d at 623.

Flynn didn’t win everything; the appellate court declined to remove Sullivan from the case. With a writ of mandamus in hand, however, that won’t matter much either way.

Judge Robert Wilkins dissented, mainly arguing that the case wasn’t yet ripe for intervention. Why not wait for Sullivan to rule? By issuing a writ of mandamus, Wilkins argues, the court has exceeded its own authority — the same error that the majority accuses Sullivan of committing:

It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant “leave of court” pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they compel its rejection.

Interestingly, Wilkins never gets around to what he thinks of Gleeson’s antics, which formed a very strong part of Rao’s decision that Sullivan’s circus presented irreparable harm to executive authority and prosecutorial prerogative. Nor does Wilkins address the issue that the prosecution submitted evidence of prior investigative and prosecutorial misconduct which would normally necessitate the dismissal of charges, at least without prejudice.

Rao, however, circles back to a seven-point rebuttal of Wilkins’ dissent. She specifically cites Sullivan’s actions after the dismissal motion to show that the court is “acting,” and in a manner that violates precedents and rules:

Fifth, the dissent minimizes the import of the district court’s orders, claiming that we are granting mandamus “before the district court has acted.” Dissenting Op. 2 (quotation marks omitted). Yet the district court has acted here. It has ordered briefing and scheduled a hearing in order to provide a court-appointed amicus the opportunity “to present arguments in opposition to the government’s Motion to Dismiss.” Order Appointing Amicus Curiae, ECF No. 205, at 1. In other words, the court has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges. Although no decision has yet been made on the motion to dismiss, the district court’s judicial supervision, detailed supra 7–8, “threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry.” Wayte v. United States, 470 U.S. 598, 607–08 (1985). As explained above, we have held such “interference with the internal deliberations” of the Executive Branch to be a quintessential irreparable injury giving rise to mandamus. Cobell, 334 F.3d at 1140–43. …

This is not a case about whether “a district judge may even hold a hearing on a Rule 48(a) motion.” Dissenting Op. 11 (emphasis omitted). Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus,
encouraging public participation, and probing the government’s motives. On that, both the Constitution and cases are clear: he may not.

Now the question will be whether this goes any further. Sullivan hired outside counsel to represent him in this appeal, an extraordinary (but not entirely unprecedented) move. Does that signal his willingness to keep fighting, even with both parties to this prosecution in agreement on dismissal? Sullivan could theoretically demand an en banc hearing, or appeal to the Supreme Court. He’d have a lot more luck with the former over the latter, but the odds are long either way. His appointment of Gleeson, and Gleeson’s antics afterward, probably did more damage to Sullivan’s standing with his peers than anything else in this argument. Indeed, absent Gleeson’s actions, this court might not have issued a mandamus writ at all.