IN RE: MICHAEL T. FLYNN, PETITIONER
No. 20-5143
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued June 12, 2020 Decided June 24, 2020
On Emergency Petition for a Writ of Mandamus
Sidney Powell argued the cause for petitioner. With her on the petition for a writ of mandamus were Molly McCann and Jesse R. Binnall.
Jeffrey B. Wall, Deputy Solicitor General, U.S. Department of Justice, argued the cause for respondent United States of America. With him on the response to the petition for a writ of mandamus were Noel J. Francisco, Solicitor General, Eric J. Feigin, Deputy Solicitor General, Frederick Liu, Assistant to the Solicitor General, Kenneth C. Kohl, Acting Principal Assistant U.S. Attorney, and Jocelyn Ballantine, Assistant U.S. Attorney.
David Yost, Attorney General, Office of the Attorney General for the State of Ohio, Benjamin M. Flowers, Solicitor General, Steve Marshall, Attorney General, Office of the Attorney General for the State of Alabama, Kevin G. Clarkson, Attorney General, Office of the Attorney General for the State of Alaska, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Ashley Moody, Attorney General, Office of the Attorney General for the State of Florida, Christopher M. Carr, Attorney General, Office of the Attorney General for the State of Georgia, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Lynn Fitch, Attorney General, Office of the Attorney General for the State of Mississippi, Eric Schmitt, Attorney General, Office of the Attorney General for the State of Missouri, Timothy C. Fox, Attorney General, Office of the Attorney General for the State of Montana, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, and Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, were on the
William J. Olson, Jeremiah L. Morgan, Herbert W. Titus, and Robert J. Olson were on the brief for amici curiae Former United States Attorney General Edwin Meese III and Conservative Legal Defense and Education Fund in support of petitioner.
Jerome M. Marcus was on the brief for amici curiae Eleven Members of the United States House of Representatives in support of petitioner.
John Reeves, pro se, was on the brief for amicus curiae John M. Reeves in support of petitioner and the United States.
Michael H. McGinley was on the brief for amici curiae Majority Leader Mitch McConnell and Senators Tom Cotton, Mike Braun, Kevin Cramer, Ted Cruz, Charles E. Grassley, and Rick Scott in support of the United States.
Leslie McAdoo Gordon was on the brief for amicus curiae Federal Practitioners in support of petitioner and the United States.
Eric B. Rasmusen, pro se, was on the brief for amicus curiae Professor Eric Rasmusen in support of petitioner.
Beth A. Wilkinson argued the cause for respondent Judge Emmet G. Sullivan. With her on the response to the petition for a writ of mandamus were Kosta S. Stojilkovic and Rakesh Kilaru.
Eugene R. Fidell, Stanley J. Marcus, and Gershon M. Ratner were on the brief for amici curiae Lawyers Defending American Democracy, Inc. in support of respondent.
Lawrence Robbins, Alan E. Untereiner, D. Hunter Smith, and William W. Taylor III were on the brief for amicus curiae Watergate Prosecutors in support of respondent.
Daniel E. Jackson and John W. Keker were on the brief for amicus curiae Former Federal District Court Jurists in support of respondent.
Gregory S. Smith was on the brief for amicus curiae New York City Bar Association in support of respondent.
Before: HENDERSON, WILKINS, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
Opinion dissenting in part filed by Circuit Judge WILKINS.
RAO, Circuit Judge: Michael Flynn, former National Security Advisor to President Donald J. Trump, pleaded guilty to making false statements under
Flynn petitioned for a writ of mandamus before this court pursuant to the All Writs Act,
Although Rule 48 requires “leave of court” before dismissing charges, “decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion.” United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016). “To that end, the Supreme Court has declined to construe Rule 48(a)’s ‘leave of court’ requirement to confer any substantial role for courts in the determination whether to dismiss charges.” Id.; see also Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (“Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding … whether to dismiss a proceeding once brought.”). The Judiciary’s role under Rule 48 is thus confined to “extremely limited circumstances in extraordinary cases.” United States v. Hamm, 659 F.2d 624, 629 (5th Cir. 1981); United States v. Ammidown, 497 F.2d 615, 621 (D.C. Cir. 1973) (emphasizing that Rule 48 motions must be granted “in the overwhelming number of cases”). More specifically, “[t]he principal object of the ‘leave of court’ requirement is … to protect a defendant against prosecutorial harassment … when the Government moves to dismiss an indictment over the defendant’s objection.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977). Rule 48 thus “gives no power to a district court to deny a prosecutor’s … motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority.” Fokker Servs., 818 F.3d at 742.1
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
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.
These clearly established legal principles and the Executive’s “long-settled primacy over charging decisions,” Fokker Servs., 818 F.3d at 743, foreclose the district court’s proposed scrutiny of the government’s motion to dismiss the Flynn prosecution. Before this court, the district judge explains that he plans to “question the bona fides of the government’s motion,” Sullivan Response 29 (quotation marks omitted), “inquire about the government’s motions and representations,” Sullivan Reply 26, “illuminat[e] the full circumstances surrounding the proposed dismissal,” id. at 12, and probe “whether the presumption of regularity for prosecutorial decisions is overcome” in “the unusual facts of this case,” Sullivan Response 3. A hearing may sometimes be appropriate before granting leave of court under Rule 48; however, a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions, because “authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.” Fokker Servs., 818 F.3d at 741. The district court’s orders appointing an amicus, see infra 8–10, and scheduling the proposed hearing therefore constitute clear legal error.
Because legal errors ordinarily may be corrected on appeal, a writ of mandamus is proper only if there is “no other adequate means to attain … relief.” Cheney, 542 U.S. at 380. Although “an abstract concern with the separation of powers,” does not rise to the level of an irreparable injury, In re Al Nashiri, 791 F.3d 71, 79–81 (D.C. Cir. 2015), we have found the requisite harm as a matter of course when a party alleges the district court’s action usurps a specific executive power. See In re Cheney, 406 F.3d 723, 731 (D.C. Cir. 2005) (en banc); Fokker Servs., 818 F.3d at 749; Cobell v. Norton, 334 F.3d 1128, 1139–40 (D.C. Cir. 2003); In re Sealed Case No. 98-3077, 151 F.3d 1059, 1065–66 (D.C. Cir. 1998).
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
We must also assure ourselves that issuance of the writ “is appropriate under the circumstances.” Cheney, 542 U.S. at 381. The circumstances of this case demonstrate that mandamus is appropriate to prevent the judicial usurpation of executive power. The first troubling indication of the district court’s mistaken understanding of its role in ruling on an unopposed Rule 48(a) motion was the appointment of John Gleeson to “present arguments in opposition to the government’s Motion.” Order Appointing Amicus Curiae, No. 1:17-cr-232, ECF No. 205, at 1 (May 13, 2020) (emphasis added). Whatever the extent of the district court’s “narrow” role under Rule 48(a), see Fokker Servs., 818 F.3d at 742, that role does not include designating an advocate to defend Flynn’s continued prosecution. The district court’s order put two “coequal branches of the Government … on a collision course.” Cheney, 542 U.S. at 389. The district court chose an amicus who had publicly advocated for a full adversarial process. Based on the record before us, the contemplated hearing could require the government to defend its charging decision on two fronts—answering the district court’s inquiries as well as combatting Gleeson’s arguments. Moreover, the district court’s invitation to members of the general public to appear as amici suggests anything but a circumscribed review. See May 12, 2020, Minute Order, No. 1:17-cr-232. This sort of broadside inquiry would rewrite Rule 48(a)’s narrow “leave of court” provision.
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
Finally, each of our three coequal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice.2 As the Supreme Court has explained, “the capacity of prosecutorial discretion to provide individualized justice is firmly entrenched in American law. …
[A] system that did not allow for discretionary acts of leniency would be totally alien to our notions of criminal justice.” McCleskey v. Kemp, 481 U.S. 279, 311–12 (1987) (quotation marks omitted); see also United States v. Smith, 55 F.3d 157, 160 (4th Cir. 1995) (“[T]he duty of the United States Attorney [is] not simply to prosecute but to do justice.”) (quotation marks omitted). In the third branch, when a district court oversteps, the mandamus remedy allows the court of appeals to prevent encroachment on a coequal department. See Cheney, 542 U.S. at 382 (“Accepted mandamus standards are broad enough to allow a court of appeals to prevent a lower court from interfering with a coequal branch’s ability to discharge its constitutional responsibilities.”).
Because this is not the unusual case where a more searching inquiry is justified, and because there is no adequate remedy for the intrusion on “the Executive’s long-settled primacy over charging decisions,” Fokker Servs., 818 F.3d at 743, we grant the petition for mandamus in part and order the district court to grant the government’s Rule 48(a) motion to dismiss the charges against Flynn.
We deny Flynn’s petition to the extent he seeks reassignment of the district judge. This case does not meet the “high bar” for reassignment, id. at 751, which would be appropriate only if the district judge’s conduct was “so extreme as to display clear inability to render fair judgment,” Liteky v. United States, 510 U.S. 540, 551 (1994). Flynn focuses primarily on comments the district judge made at sentencing, but “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id. at 555; see also In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991) (“[A] trial judge is entitled to form his own judgment as to the conduct of a defendant and to take that judgment into account in sentencing.”). In light of these precedents, the district judge’s conduct did not indicate a clear inability to decide this case fairly. We decline to reassign the case to a new judge simply to grant the government’s Rule 48(a) motion to dismiss.
* * *
We include the following responses to the dissenting opinion in order to clarify the extent to which the dissent’s arguments are foreclosed by longstanding precedent
First, the dissent glosses over the presumption of regularity to which the Executive is entitled in the exercise of its prosecutorial discretion. While the district court is not a “rubber stamp” when considering whether to grant “leave of court” under Rule 48, Ammidown, 497 F.2d at 622, any judicial inquiry is strictly bounded by the presumption of regularity, and the presumption is overcome only in extraordinary cases and by “clear evidence to the contrary,” Armstrong, 517 U.S. at 464. The dissent fundamentally misstates our opinion by insisting we hold “a district court may not even consider [a Rule 48 motion] before giving its ‘leave.’” Dissenting Op. 3. Perhaps that is to distract from the simple fact that neither the dissent nor the district judge has identified a legitimate basis to rebut the presumption here. Our precedents emphatically leave prosecutorial charging decisions to the Executive Branch and hold that a court may scrutinize a motion to dismiss only on the extraordinary showing of harassment of the defendant or malfeasance such as bribery—neither of which is manifest in the record before the district court. See supra 6–7. The dissent argues the presumption is overcome in this case because of the government’s “complete reversal” in moving to dismiss charges it previously supported. Dissenting Op. 17–18. Yet the government necessarily reverses its position whenever it moves to dismiss charges under Rule 48(a), and so the reversal standing alone cannot provide the irregularity. Given the absence of any legitimate basis to question the presumption of regularity, there is no justification to appoint a private citizen to oppose the government’s motion to dismiss Flynn’s prosecution. See Newman, 382 F.2d at 482.3
Second, the dissent undermines our recent decision in Fokker Services by recasting its necessary and well-considered reasoning as dicta. In that case, we relied on “settled constitutional understandings” to determine that Rule 48(a)’s “leave of court” requirement “confers no new power in the courts to scrutinize and countermand the prosecution’s exercise of its traditional authority over charging and enforcement decisions.” Fokker Servs., 818 F.3d at 741, 743. This part of the opinion is binding because the narrow interpretation of Rule 48(a) was essential to our interpretation of the Speedy Trial Act’s parallel “approval of the court” requirement. Id. at 743; see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) (explaining that courts are bound by “those portions of the opinion necessary to th[e] result”). The dissent attempts to limit the holding of Fokker Services to its “particular legal context,” Dissenting Op. 4, but the decision is fundamentally about the scope of the Executive’s constitutional charging authority. As such, it is directly controlling here.
Third, the dissent asserts our adherence to Fokker Services creates a circuit split. Dissenting Op. 4. Yet if a split exists, a proposition we dispute, it would be a result of Fokker Services’ binding
second-guess the prosecutor’s evaluation of the evidence except in the “blatant and extreme case” where “the dismissal has no basis in fact” whatsoever. Id. at 621, 622. The dissent would sanction an expansive judicial inquiry under Rule 48(a) that runs afoul of Supreme Court precedent, this court’s precedent, and out of circuit precedent. See ICC v. Bhd. of Locomotive Engineers, 482 U.S. 270, 283 (1987) (“[I]t is entirely clear that the refusal to prosecute cannot be the subject of judicial review.”); Fokker, 818 F.3d at 743; In re United States, 345 F.3d at 454.5
Fourth, although our dissenting colleague apparently agrees there is no need to cite a case on all fours before granting mandamus relief, he faults the majority for failing to identify a case in which mandamus was granted in nearly identical circumstances. Dissenting Op. 1, 7, 13. Fokker Services, however, directly rejects such a requirement: “[W]e have never required the existence of a prior opinion addressing the precise factual circumstances or statutory provision at issue in order to find clear error justifying mandamus relief.” 818 F.3d at 749–50. In any event, as explained above, Fokker Services directly forecloses the district court’s actions in these circumstances. Some questions regarding Rule
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.
Sixth, the dissent maintains that mandamus must focus exclusively on the petitioner’s harms, not the government’s, because the government has not formally petitioned for mandamus. Dissenting Op. 7–10 & n.2. Our court has squarely rejected this argument. In Cobell, we granted mandamus on the basis of irreparable injury to the Executive Branch in the absence of a “separate petition for mandamus” filed by the government. See Cobell, 334 F.3d at 1140 n.*; see also Ex parte Peru, 318 U.S. 578, 587–88 (1943) (relying on harm to the Executive, namely “embarrass[ing] the executive arm of the Government in conducting foreign relations,” to grant a mandamus petition to a foreign sovereign without requiring a separate government petition). Here, we invited the government to respond, and at argument the government offered to file a petition at the court’s request. Oral Arg. Tr. 46–47. The Executive Branch is not just any “different party,” Dissenting Op. 8 (emphasis omitted), but a coequal branch of government responsible for prosecutorial decisions. See Cheney, 542 U.S. at 390 (“As this case implicates the separation of powers, the Court of Appeals must also ask, as part of th[e mandamus] inquiry, whether the District Court’s actions constituted an unwarranted impairment of another branch in the performance of its constitutional duties.”). Therefore, we must consider the irreparable harms to the Executive in a case such as this, in which the government has moved to dismiss. Cf. Doe v. Exxon Mobil Corp., 473 F.3d 345, 356–57 (D.C. Cir. 2007) (noting it would be appropriate to examine separation of powers harms to the Executive if it had joined the petitioner’s mandamus request or “requested the dismissal of the action” below).
Seventh, the dissent swings for the fences—and misses—by analogizing a Rule 48(a) motion to dismiss with a selective prosecution claim. Of course, the Executive may not “selectively prosecute[] someone based on impermissible considerations.” In re Aiken Cty., 725 F.3d 255, 264 n.7 (D.C. Cir. 2013). But “the equal protection remedy is to dismiss the prosecution,
Ultimately, the dissent fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority. 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.
* * *
For the foregoing reasons, we grant Flynn’s petition for a writ of mandamus in part and direct the district court to grant the government’s Rule 48(a) motion to dismiss. In light of that grant, we vacate the district court’s order appointing an amicus as moot. See Great W. Sugar Co. v. Nelson, 442 U.S. 92, 94 (1979).
So ordered.
WILKINS, Circuit Judge, dissenting in part: 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
I.
Mandamus is a “drastic and extraordinary remedy,” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)), and its “three threshold requirements are jurisdictional,” such that the absence of any one compels denial of the writ and dismissal of the petition for want of jurisdiction, Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016); see also In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 2014) (“[T]hree conditions must be satisfied before a court grants a writ of mandamus: (1) the mandamus petitioner must have ‘no other adequate means to attain the relief he desires,’ (2) the mandamus petitioner must show that his right to the issuance of the writ is ‘clear and indisputable,’ and (3) the court, ‘in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’” (quoting Cheney, 542 U.S. at 380–81)). In issuing a writ of mandamus compelling the District Court to immediately grant the
Government’s motion to dismiss the information against Flynn, the majority concludes that each of these prerequisites is satisfied. The majority is in each respect mistaken.
A.
One of the most striking conclusions of the majority is virtually buried: It finds the issuance of mandamus to be appropriate under the circumstances, where those circumstances include the absence of any district-court ruling on the motion at issue. Our Court is “particularly disinclined” to issue this extraordinary writ “before the district court has acted.” Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192, 198 (D.C. Cir. 2002); see also United States v. Hubbard, 650 F.2d 293, 309 (D.C. Cir. 1980) (observing that mandamus would be inappropriate prior to district-court action because “[i]t is the trial court and not this court that should engage in the initial consideration”).1 This “particular[]” reluctance is the natural consequence of our considered recognition of our proper role in the federal judicial system: “As an appellate court, ‘we are a court of review, not of first view[.]’” Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933 F.3d 784, 789 (D.C. Cir. 2019) (alteration in original) (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)). The majority, which cites to no case in which we have granted mandamus so precipitously, is apparently willing to set aside this Court’s well-established and well-founded concern for the maintenance of the ordinary course in order to proceed in an unprecedented manner. But I view our historical disinclination to act out of turn as a compelling, independent ground for declining to mandate the immediate grant of the Government’s
B.
In considering whether Flynn’s right to relief is “clear and indisputable,” it serves to remember that the question at hand is not whether or under what circumstances a district court may deny a
In contending that its trailblazing result is somehow compelled by precedent, the majority transforms dicta into dogma. “[A] statement not necessary to a court’s holding is dictum,” In re Grand Jury Investigation, 916 F.3d 1047, 1053 (D.C. Cir. 2019), and “[d]icta is never binding on any court,” Murray Energy Corp. v. EPA, 936 F.3d 597, 627 (D.C. Cir. 2019) (citing Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 235 (1959)). In United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016), this Court addressed the district court’s denial of a joint motion to exclude time under the Speedy Trial Act,
In addition to being improper, the majority’s reliance on the
Fokker’s oversight is understandable, since the analogy to
The fact is that “[t]he Supreme Court has left open whether the court can ever refuse leave to dismiss if the government’s request to dismiss is consented to by the defendant.” 3B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & PETER J. HENNING, FEDERAL PRACTICE AND PROCEDURE § 802 (4th ed. 2013) (citing Rinaldi, 434 U.S. at 30, and Watts v. United States, 422 U.S. 1032 (1975) (mem.)). This Court has twice opined, in dicta, on the factors that might properly guide a court’s consideration and disposition of such a motion. See Fokker, 818 F.3d at 742–46; Ammidown, 497 F.2d at 619–22. While the majority is bound by neither of these decisions, its election to treat Fokker as controlling is particularly unsettling in view of its willful neglect of our Court’s countervailing views expressed in Ammidown. There, the Court envisioned a district court in receipt of an unopposed
None of the authority on which the majority relies supports its novel premise that “further judicial inquiry”—by which it appears to mean any judicial inquiry—is proper only in “rare” or “extraordinary” cases. See Majority Op. 5–6. And although it invokes a host of non-binding authority regarding permissible grounds for denying a
In NetCoalition v. SEC, 715 F.3d 342, 354 (D.C. Cir. 2013), we noted that “[m]andamus does not lie when our precedent no longer, at least in part, binds,” and we have declined to find “a ‘clear and indisputable’ right to mandamus relief” where the parties present countervailing “substantial argument[s]” on unsettled legal issues, In re Khadr, 823 F.3d 92, 100 (D.C. Cir. 2016). The majority declares it to be “clear and indisputable” that no consideration of the
C.
Next, the majority addresses whether “other adequate means to attain the relief” exist, concluding that “the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power.” Majority Op. 8. Here, too, the majority errs, this time by shifting its focus away from the adequate means by which the party seeking mandamus may obtain relief and by erecting an indefensibly high wall between the branches of government. The majority states that “there must be ‘no other adequate means to attain the relief.’” Majority Op. 5. But in Cheney v. U.S. District Court for the District of Columbia, the source of this proposition, the Supreme Court stated that “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires.” 542 U.S. at 380 (alteration in original) (emphasis added). Indeed, the Supreme Court has consistently framed this element around the petitioner, not around other parties who have not moved for mandamus relief. See, e.g., Kerr v. U. S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976) (“Among these [conditions for issuance of mandamus] are that the party seeking issuance of the writ have no other adequate means to attain the relief he desires.” (emphasis added)). The majority cites no cases in which a court has concluded that a petitioner has satisfied her burden to show no other adequate means to attain her sought-after relief based on the absence of alternative avenues of relief for a different party that did not petition the court for the writ.2 Neither
And even if it were proper for the Court to consider the Government’s argument that it will suffer an irreparable injury, the majority overstates the separation-of-powers dilemma presented by
The same principle holds true in the selective-prosecution context, where the district court may dismiss an indictment if it finds “the decision to prosecute [was] ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’” Wayte v. United States, 470 U.S. 598, 608 (1985) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). While the Supreme Court has iterated some separation-of-powers concerns around the conduct of discovery pursuant to such a
In other words, it is not inconsistent with the separation of powers for a district court to conduct regular proceedings and afford consideration to a motion, even if the eventual grant or denial of the motion might intrude on the Executive’s exercise of his prosecutorial discretion. Again, this is not a case where we are being asked to decide whether the district judge may call the prosecutor to the stand or whether a
None of this is to say that a district court, in considering an unopposed
“[A] petitioner’s right to relief is ‘clear and indisputable’ where he or she can point to ‘cases in which a federal court has held that’ relief is warranted ‘in a matter involving like issues and comparable circumstances.’ Accordingly, we will deny mandamus even if a petitioner’s argument, though ‘pack[ing] substantial force,’ is not clearly mandated by statutory authority or case law.” In re Al Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (second alteration in original) (quoting Doe v. Exxon Mobil Corp., 473 F.3d 345, 355 (D.C. Cir. 2007), and In re Khadr, 823 F.3d at 99–100). No one contends that Flynn must have a case “on all fours,” Majority Op. 15, but the required showing—one of legal certainty—is a “high hurdle.” NetCoalition, 715 F.3d at 354. Said another way, “[l]egal aporias are the antithesis of the ‘clear and indisputable’ right needed for mandamus relief.” In re al-Nashiri, 791 F.3d at 86. In issuing the writ compelling the District Court to grant the pending motion without considering it, the majority shuts its eyes to the unsettled state of the law on the relevant questions: the import of
II.
The majority also concludes that the writ should issue to compel the vacation of the District Court’s order appointing amicus (1) to address whether Flynn should be held in criminal contempt for perjury, and (2) to present arguments in opposition to the Government’s otherwise-unopposed
A.
“The power to punish for contempts is inherent in all courts; its existence is essential . . . to the due administration of justice.” Ex parte Robinson, 86 U.S. 505, 510 (1873); accord Michaelson v. United States, 266 U.S. 42, 65 (1924) (referring to this premise as “settled law”).
B.
Similarly, Flynn fails to establish that it is clear and indisputable that the District Court erred in its appointment of amicus to present arguments in opposition to the Government’s
Local Civil Rule 1.1(a) provides that “[t]hese Rules govern all proceedings in the United States District Court for the District of Columbia,” and Local Civil Rule 7(o) contemplates the submission of amicus briefs. But Local Civil Rule 7, entitled “Motions,” is duplicated to a limited extent in Local Criminal Rule 47, also entitled “Motions,” and the latter includes no mention of amicus briefs. And, as Flynn argues, the Supreme Court observed in Hollingsworth v. Perry, 558 U.S. 183 (2010), that local rules “have the force of law,” id. at 191 (internal quotation marks omitted). Flynn’s contention that the Local Rules should be read as prohibiting the participation of amici in criminal cases is therefore a plausible one, as the Civil Rules provide for amici while the Criminal Rules do not.
But this Court has never held that an arguable proposition entitles a petitioner to the extraordinary writ of mandamus. See In re Al Baluchi, 952 F.3d at 369 (“[W]e will deny mandamus even if a petitioner’s argument, though ‘pack[ing] substantial force,’ is not clearly mandated by statutory authority or case law.” (second alteration in original)). And relying entirely as he does on his construction of the Local Rules, Flynn fails to engage with the fact that, in the absence of countervailing authority, courts have “inherent power to provide themselves with appropriate instruments required for the performance of their duties. This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause.” Ex parte Peterson, 253 U.S. 300, 312 (1920) (citation omitted). The character and confines of such inherent authority, as concerns a district court’s appointment or allowance of amici, are simply not well developed. Cf. United States ex rel. Gudur v. Deloitte Consulting LLP, 512 F. Supp. 2d 920, 927 (S.D. Tex. 2007) (observing that “[n]o statute, rule, or controlling case defines a federal district court’s power to grant or deny leave to file an amicus brief”); Jin v. Ministry of State Sec., 557 F. Supp. 2d 131 (D.D.C. 2008) (asserting, on the basis of a number of district-court cases, that “[d]istrict courts have inherent authority to appoint or deny amici[,] which is derived from
Both this Court and the Supreme Court regularly permit the participation of amici in the criminal context, however, and there is no readily apparent reason why, in appropriate circumstances, a district court might not exercise its inherent power to do the same—especially in the absence of any authority expressly prohibiting it. Flynn’s counsel even conceded at oral argument that district courts have the authority to accept amicus briefs in some criminal cases. Oral Arg. Tr. 19–21. To the extent the majority’s sub silencio holding on the propriety of amicus participation rests on the absence of such authority in this particular case, the distinction has no legal basis, and certainly not a clear and indisputable one. And if the majority’s unuttered reasoning were premised on the absence of a case or controversy, its mandate that the District Court grant the Government’s
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The majority opinion effectively transforms the presumption of regularity into an impenetrable shield. In 2017, the then-Acting Attorney General told the Vice President that Flynn’s false statements “posed a potential compromise situation for Flynn” with the Russians, Gov’t Mot. Dismiss Crim. Info. Ex. 3 at 8, No. 1:17-cr-232, ECF No. 198-4 (May 7, 2020), and just a few months ago, the prosecution said that Flynn’s false statements to the FBI “went to the heart” of a valid counterintelligence inquiry and “were absolutely material,” Gov’t Surreply Mot. Compel Produc. Brady Mat. at 10–11, No. 1:17-cr-232, ECF No. 132 (Nov. 1, 2019). Now, in a complete reversal, the Government says none of this is true. Gov’t Mot. Dismiss Crim. Info. at 13–16, No. 1:17-cr-232, ECF No. 198. The Government doubles down by asserting in its motion to dismiss that Flynn’s statements could not have been “material” within the meaning of
The Government asserted to us that it has no duty to inform the court in a motion to dismiss pursuant to
The Government may be entitled to “leave of court” under