IN RE: MICHAEL T. FLYNN, PETITIONER
No. 20-5143
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued August 11, 2020 Decided August 31, 2020
On Emergency Petition for Writ of Mandamus
Sidney Powell argued the cause for petitioner Michael T. Flynn. With her on the opposition to the petition for rehearing en banc were Molly McCann and Jesse R. Binnall.
Jeffrey B. Wall, Acting Solicitor General, U.S. Department of Justice, argued the cause for United States of America. With him on the response to the petition for rehearing en banc were Brian C. Rabbitt, Acting Assistant Attorney General, Hashim M. Mooppan, Counselor to the 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.
Beth A. Wilkinson argued the cause for Judge Emmet G. Sullivan. With her on the petition for rehearing en banc were Kosta S. Stojilkovic and Rakesh N. Kilaru.
Before: SRINIVASAN, Chief Judge, and HENDERSON, ROGERS, TATEL, GARLAND, GRIFFITH, MILLETT, PILLARD, WILKINS, KATSAS* and RAO, Circuit Judges.
* Circuit Judge Katsas did not participate in this matter.
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge HENDERSON, with whom Circuit Judge RAO joins.
Dissenting opinion filed by Circuit Judge RAO, with whom Circuit Judge HENDERSON joins.
PER CURIAM: In December 2017, Michael T. Flynn (“Petitioner“) pleaded guilty to making false statements to FBI agents in violation of
On May 13, the District Court appointed an amicus curiae “to present arguments in opposition to the government‘s Motion to Dismiss,” and to “address whether the Court should issue an Order to Show Cause why [Petitioner] should not be held in criminal contempt for perjury.” Order Appointing Amicus Curiae at 1, Flynn, No. 1:17-cr-232, ECF No. 205 (D.D.C. May 13, 2020). On May 19, the District Court set a briefing schedule and scheduled argument on the Government‘s motion to dismiss, adding that the order was “subject to a motion for reconsideration, for good cause shown.” Minute Order, Flynn, No. 1:17-cr-232 (D.D.C. May 19, 2020).
On the same day, Petitioner filed an Emergency Petition for a Writ of Mandamus in this Court, seeking expedited review. The Government did not file a petition for mandamus, but it has generally supported Petitioner‘s separation-of-powers arguments for mandamus relief. Petitioner sought to compel the District Court “immediately to (1) grant the Justice Department‘s Motion to Dismiss; (2) vacate its order appointing amicus curiae; and (3) reassign the case to another district judge as to any further proceedings.” Pet. 2. A three-judge panel of this Court ordered the District Judge to submit a brief in response to the Petition. Order, In re: Michael T. Flynn, No. 20-5143 (D.C. Cir. May 21, 2020) (per curiam). The panel heard oral argument and granted the Petition in part, issuing the writ to compel the District Court to immediately grant the Government‘s motion. Panel Maj. Op. 19; Per Curiam Order. The panel majority declined to mandate that the case be reassigned to a different district judge, Panel Maj. Op. 11–12, and, in light of its grant of the writ to compel immediate dismissal of the charges, the panel majority vacated the appointment of amicus as moot, id. at 19. One member of the panel dissented from the grant of the writ and the mootness holding. See generally Panel Dissenting Op.
Following the issuance of the panel opinions but before the order became effective, see
As to Petitioner‘s first two requests—to compel the immediate grant of the Government‘s motion, and to vacate the District Court‘s appointment of amicus—Petitioner has not established that he has “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)). We also decline to mandate that the case be reassigned to a different district judge, because Petitioner has not established a clear and indisputable right to reassignment. See id. at 381. We therefore deny the Petition.
II.
A petition for a writ of mandamus “may never be employed as a substitute for appeal.” Will v. United States, 389 U.S. 90, 97 (1967); see also Roche v. Evaporated Milk Ass‘n, 319 U.S. 21, 26 (1943) (“[Mandamus] may not appropriately be used merely as a substitute for the appeal procedure prescribed by the statute.“). The writ is a “potent weapon[],” “a drastic and extraordinary remedy reserved for really extraordinary causes.” Cheney, 542 U.S. at 380 (citations and internal quotation marks omitted). “[T]he writ cannot be used ‘to actually control the decision of the trial court,‘” Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240, 245 (1964) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)), because “[a]s 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) (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)).
Under governing law, the writ of mandamus should issue only if: (1) “the party seeking issuance of the writ [has] no other adequate means to attain the relief he desires“; (2) “the petitioner [satisfies] the burden of showing that his right to issuance of the writ is clear and indisputable“; and (3) “the issuing court, in the exercise of its discretion, [is] satisfied that the writ is appropriate under the circumstances.” Cheney, 542 U.S. at 380–81 (citations, alterations, and internal quotation marks omitted). All three requirements must be satisfied, and the absence of any one compels denial of the writ. “As this case implicates the separation of powers, the Court of Appeals must also ask, as part of this inquiry, whether
A.
We first address Petitioner‘s request to compel the District Court to grant the Government‘s Rule 48(a) motion and vacate the appointment of amicus. We conclude that mandamus is unavailable because an “adequate alternative remedy exists.” In re al-Nashiri, 791 F.3d 71, 78 (D.C. Cir. 2015) (quoting Barnhart v. Devine, 771 F.2d 1515, 1524 (D.C. Cir. 1985)). Issuing the writ is “inappropriate in the presence of an obvious means of review.” Id.
Here, Petitioner and the Government have an adequate alternate means of relief with respect to both the
When ordinary appellate review (or even, as here, further proceedings before the District Court) remains available, the writ may not issue unless the petitioner “identif[ies] some ‘irreparable’ injury that will go unredressed if he does not secure mandamus relief.” In re al-Nashiri, 791 F.3d at 79 (citations omitted). Petitioner has failed to do so. To be sure, Petitioner asserts that the continuation of the proceedings below would work a number of hardships on him. See Pet‘r‘s Reply 18–19 (citing the continuation of “weekly reporting requirements,” the fact that Petitioner‘s passport and other property are in federal custody, his inability to travel abroad or “be in the presence of a firearm,” his incurrence of attorneys’ fees, “the stress and anxiety of further criminal prosecution,” and “continuing ignominy“). “But it is established that the extraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial.” Bankers, 346 U.S. at 383 (citations omitted). While we recognize the gravity of the burdens imposed on criminal defendants, those burdens, without
In the absence of any extraordinary harm to Petitioner that would result from waiting to seek our review (if necessary) after the District Court decides the motion in the ordinary course, the writ cannot issue, either to compel the immediate grant of the Government‘s motion or to vacate the order appointing amicus. Roche, 319 U.S. at 30 (“Where the appeal statutes establish the conditions of appellate review an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions and thwart the Congressional policy against piecemeal appeals in criminal cases.“).
Nor can we conclude that the Government will suffer any irreparable injury without mandamus. The panel majority—while acknowledging that the Government had not petitioned for the writ, Panel Maj. Op. 17—centered its Cheney prong-one analysis entirely on the harms that would befall the Government in the absence of mandamus, see, e.g., id. at 8 (“[T]he district court‘s actions will result in specific harms to . . . the Executive Branch[] . . . . that cannot be remedied on appeal.“). The dissent takes the same tack. Rao Dissenting Op. 9–21. We need not decide the propriety of considering the Government‘s harms as opposed to the Petitioner‘s, because it is simply not the case that the Executive will be irreparably harmed by the procedures ordered by the District Court such that mandamus should issue to forestall them. Petitioner and the Government argue that appointing an amicus and scheduling argument violate the separation of powers, relying on language from Fokker. See, e.g., Gov‘t Br. at 24 (“Because this case involves ‘the prosecution‘s constitutionally rooted exercise of charging discretion,’ it is a ‘usurpation of judicial power’ to second-guess it.” (quoting Fokker, 818 F.3d at 750)). In Fokker, we reviewed the district court‘s denial of a deferred prosecution agreement sought by the government. 818 F.3d at 737–38. We concluded this denial violated the separation of powers by intruding on the Executive Branch‘s prosecutorial discretion. Id. Even assuming denial of the Government‘s
Quite simply, the only separation-of-powers question we must answer at this
The Government raised concerns that the District Court might institute “intrusive judicial proceedings and criminal charges—and potentially even evidentiary proceedings if the court-appointed amicus has his way.” Gov‘t Br. at 33–34. Petitioner, likewise, argued that the District Judge might “usurp[] the power of the Attorney General to bring additional charges.” Pet‘r‘s Reply at 18. But those harms are speculative and may never come to pass. As the District Judge‘s Attorney noted at oral argument, amicus does not seek discovery or an evidentiary hearing.4 The District Judge‘s Attorney also noted that the District Judge has not determined what questions, if any, he may have after reviewing the briefs.5 Regardless of the exact form the proceedings take below, these developments underscore the point that a petition for mandamus filed in anticipation of a district court argument is almost invariably premature. Fowler v. Butts, 829 F.3d 788, 793 (7th Cir. 2016)
(“Factual or legal uncertainty means no mandamus.“). This is not a circumstance in which the District Court has appointed a court monitor with “wide-ranging extrajudicial duties over the Government‘s objection,” Cobell v. Norton, 334 F.3d 1128, 1142 (D.C. Cir. 2003), ordered presidential appointees to appear and testify under oath, see Matter of Commodity Futures Trading Comm‘n, 941 F.3d 869, 871–73 (7th Cir. 2019), or approved discovery requests in a civil proceeding that included the Vice President and “those in closest operational” and advisory “proximity to the President,” “ask[ing] for everything under the sky,” see Cheney, 542 U.S. at 381, 383, 387. Rather, the District Court has indicated through its actions an intention simply to consider the Government‘s motion in the ordinary course, to which end it has appointed amicus to ensure adverse presentation of the issues. See Penson v. Ohio, 488 U.S. 75, 84 (1988) (“The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth—as well as fairness—is ‘best discovered by powerful statements on both sides of the question.‘” (internal quotation marks omitted) (quoting Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A. J. 569, 569 (1975))).
Nothing in this decision forecloses the possibility of future mandamus relief should the District Court‘s disposition of the motion to dismiss or other order violate the separation of powers or some other clear and indisputable right. We need not and do not now pass on the issues that might be presented by such a mandamus petition; it suffices that no such petition is before us, and that the ability to seek mandamus at the appropriate time (if necessary) provides “[an]other adequate means to attain the relief,” Cheney, 542 U.S. at 380 (quoting Kerr, 426 U.S. at 403), such that the writ may not issue now. Try as they might, neither Petitioner, nor the Government, nor the dissent has identified a single instance where any court of appeals has granted the writ to decide a trial court motion without first giving the district court an opportunity to make a decision—especially where the objections raised on mandamus were never raised to the district court. We are aware of none.
The dissent suggests that our approach here is inconsistent with In re Hillary Rodham Clinton & Cheryl Mills, No. 20-5056 (D.C. Cir. Aug 14, 2020), ignoring the fact that we denied the writ as to petitioner Mills because she had an adequate alternative means to seek relief, id. at 8–10, the same reason we deny it here. We granted the writ as to Clinton, the other petitioner, because, unlike here, she did not have an adequate alternative remedy under our precedent, id. at 7–8 (citing In re Kellogg Brown & Root, Inc., 756 F.3d 754, 761 (D.C. Cir. 2014)), and because, unlike here, the district court had actually ruled on the motion at issue. (And, of course, we found that the ruling was a clear abuse of discretion under our precedent, id. at 10–18.)
In sum, as to Petitioner‘s request that we mandate the immediate grant of the Government‘s motion and vacate the District Court‘s order appointing amicus, the failure of the Petition to meet Cheney‘s first prong compels us to deny it.
B.
We also decline to mandate the reassignment of this case to a different district judge, see Pet. 2, though here the Petition stalls at Cheney‘s second prong. Our precedent is clear that, because “the injury suffered by a party required to complete judicial proceedings overseen by [a disqualified judicial] officer is by its nature irreparable,” mandamus is an appropriate avenue for seeking compelled recusal “where the party seeking the writ demonstrates a clear and indisputable right to relief.” Cobell, 334 F.3d at 1139;
Petitioner points to the District Judge‘s failure to grant the Government‘s motion, his appointment of amicus, and his plan for a briefing schedule that addressed potential submissions by other amici as “bespeak[ing] a judge who is . . . biased against Petitioner.” Pet. 32. But “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555 (indicating that rulings warranting recusal occur “only in the rarest circumstances“); see also Rafferty v. NYNEX Corp., 60 F.3d 844, 848 (D.C. Cir. 1995) (per curiam) (“Rafferty offers no evidence that the judge had a conflict of interest or was biased; he merely infers bias from unfavorable judicial rulings and from court delays in ruling on pending motions.“). Petitioner‘s inferences aside, none of the District Judge‘s actions cited by Petitioner comes close to meeting the “very high standard” of “conduct . . . so extreme as to display clear inability to render fair judgment.” In re Kellogg Brown & Root, Inc., 756 F.3d at 763 (citation and internal quotation marks omitted).
Petitioner also argues that several of the District Judge‘s statements evidence the District Judge‘s “outrage” and “deep-seated antagonism,” warranting reassignment. Pet. 33; see App. 34:13–18 (“Arguably, you sold your country out. The Court‘s going to consider all of that. . . . [Y]ou could be incarcerated.“); id. at 34:19–23 (“It could be that any sentence of incarceration imposed after your further cooperation . . . would be for less time than a sentence may be today. I can‘t make any guarantees, but I‘m not hiding my disgust, my disdain for this criminal offense.“); id. at 37:9–10 (“Hypothetically, could he have been charged with treason?“); id. at 41:16–23 (“I was just trying to determine the benefit of and the generosity of the government in bestowing a benefit on Mr. Flynn. . . . I‘m not suggesting he committed treason.“). The quoted statements were made at a scheduled sentencing proceeding at which the Judge first inquired whether Petitioner adhered to his guilty plea (he did), App. at 17:1–7, and then urged Petitioner to reconsider whether he wished to proceed that day with the scheduled sentencing or wait until he completed his cooperation (he chose to postpone), id. at 45:11–25, 49:2–12. We agree with the panel majority, Panel Maj. Op. 11, that none of the statements to which Petitioner points establishes that reassignment is warranted.6
“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of . . . proceedings[] do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555;
Likewise, there is no basis for disqualifying the District Judge under
Nor does participating in a mandamus proceeding create an appearance of partiality warranting recusal from the separate, underlying action. See
Finally, filing a petition for rehearing en banc does not suggest a level of partiality justifying reassignment in this case. As explained, the District Judge participated in the mandamus proceeding at this Court‘s invitation, and nothing about that participation created a reasonable impression of partiality, nor could it. Having come that far, the further step of filing a petition for rehearing did not, on its own, create a reasonable impression of partiality, especially as nothing in the en banc petition itself indicates bias in connection
III.
For the foregoing reasons, the Petition for a writ of mandamus is denied. As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.
So ordered.
GRIFFITH, Circuit Judge, concurring: In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge‘s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt there will be some who will describe the court‘s decision today in such terms, but they would be mistaken.
This proceeding is not about the merits of the prosecution of General Flynn or the Government‘s decision to abandon that prosecution. Rather, this proceeding involves questions about the structure of the Judiciary and its relationship to the Executive Branch. There are two central problems in this case: defining the scope of the authority of the Judiciary to inquire into the exercise of a core function of the Executive and deciding how the relationship between the district court and our court shapes a challenge to that inquiry. Those questions are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree. See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). And that principled disagreement revisits a long-running debate about the relative powers of the Executive and Judicial Branches. Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic, see
KAREN LECRAFT HENDERSON, Circuit Judge, with whom RAO, Circuit Judge, joins, dissenting: The Court today denies Michael Flynn‘s mandamus petition on the ground that he has an adequate remedy at law. It also declines to reassign this case to a different trial judge. I dissent as to the majority‘s
When a party petitions for mandamus relief pursuant to
The “standard for disqualification under
From early on in this case, the trial judge has demonstrated a pattern of conduct that, taken together, raises serious concerns about the appearance of impartiality. See In re Sch. Asbestos Litig., 977 F.2d at 781–82 (“We need not decide whether any of these facts alone would have required disqualification, for . . . we believe that together they create an appearance of partiality that mandates disqualification.“); cf. Cobell v. Kempthorne, 455 F.3d 317, 335 (D.C. Cir. 2006) (reassignment
The trial judge‘s attempted use of
And his earlier sua sponte appointment of amicus to oppose the government‘s motion to dismiss, although apparently allowed, is further indication that he has from the outset appeared to view his role in adjudicating the government‘s motion to dismiss as one that requires outside support—as if he were a priori antagonistic to
bona fide parties seek.6 Even more telling of apparent partiality, the trial judge ordered amicus to opine on whether Flynn had committed perjury and should be held in criminal contempt. Order Appointing Amicus Curiae at 1, United States v. Flynn, No. 17-cr-00232 (D.D.C. May 13, 2020), ECF No. 205. That direction indicates that, even if compelled to grant the motion to dismiss, the trial judge intends to pursue Flynn on his own.
But it is the trial judge‘s conduct since the government‘s May 2020 motion to dismiss, weighed in light of his earlier conduct, that delivers the coup de grâce to the last shred of the trial judge‘s appearance of impartiality. In other words, if there was any doubt up to this point whether his conduct gives the appearance of partiality, that doubt is gone. Granted, the panel majority opinion resisted Flynn‘s request that a different judge be assigned to this case. See In re Flynn, 961 F.3d at 1223. That decision rested primarily on the fact that Flynn‘s request centered on the trial judge‘s in-court statements, which are almost always insufficient on their own to warrant reassignment, and the fact that the trial judge was simply directed to grant the government‘s motion to dismiss. See id. But the trial judge‘s “extreme” conduct throughout this case, culminating in his decision to ignore the writ and instead seek en banc review, demonstrates a “clear inability to render fair judgment.” United States v. Fokker Servs. B.V., 818 F.3d 733, 750 (D.C. Cir. 2016) (quoting Liteky v. United States, 510 U.S.
540, 551 (1994)7); see also United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995).
Moreover, sister circuits have not been as nonchalant as my majority colleagues regarding their obligation to ensure that the appearance of impartiality remains inviolable. See, e.g., United States v. Whitman, 209 F.3d 619, 625–26 (6th Cir. 2000) (per curiam) (case reassigned on remand because “the district judge‘s lengthy harangue . . . create[d] the impression that the impartial administration of the law was not his primary concern“); Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 164 (3d Cir. 1993) (mandamus granted and trial judge disqualified because “observations made by [him] throughout the conduct of the[] proceedings could well give rise to the questioning of his impartiality“); Webbe v. McGhie Land Title Co., 549 F.2d 1358, 1361 (10th Cir. 1977) (case reassigned on remand because trial judge announced defendant was “stuck” before hearing from defense counsel).
Lest we forget, at the center of this case is Michael Flynn—a criminal defendant whom the government no longer seeks to prosecute but who waits in limbo for his case to be resolved. The trial judge has delayed his consideration of the government‘s unopposed motion to dismiss with little regard for the time Flynn has spent, and continues to spend, under the weight of now-abandoned criminal charges while the trial judge appears to continue the fight to preserve an improper role.8 Notwithstanding
representation during oral argument, it is intolerable for criminal charges to hang for months over the head of an individual whom the government no longer wishes to prosecute. See Transcript of Oral Argument at 145, In re Flynn, No. 20-5143 (D.C. Cir. Aug. 11, 2020) (trial judge‘s counsel‘s assertion that trial judge taking up to seven weeks to hold hearing and then another month to issue decision in such circumstances as Flynn‘s “happens all the time in district court“).
“Unbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label.” In re Al-Nashiri, 921 F.3d at 233–34. If the trial judge continues to preside over this case, I submit our system is not so worthy because his conduct has undermined the appearance of impartiality. My colleagues in the majority disagree and I am frankly dismayed by their endorsement of the trial judge‘s conduct, especially after the government‘s motion to dismiss. Granted, all members of the en banc court weigh that conduct in light of their own experience and notions of impartiality, while, at the same time, applying
Accordingly, I respectfully dissent.
RAO, Circuit Judge, with whom HENDERSON, Circuit Judge, joins, dissenting: The Department of Justice has moved to dismiss the criminal charges against General Michael Flynn, but the district court insists on further factfinding to scrutinize the motives and circumstances behind the Department‘s decision. While a district court plays a limited role in granting “leave of court” to an unopposed motion to dismiss, it is long settled that a district court cannot supervise the prosecutorial decisions of the Executive Branch. In our system of separated powers, the government may deprive a person of his liberty only upon the action of all three branches: Congress must pass a law criminalizing the activity; the Executive must determine that prosecution is in the public interest; and the Judiciary, independent of the political branches, must adjudicate the case. The Constitution divides these powers in order to protect individual liberty from a concentration of government authority.
In Flynn‘s case, the prosecution no longer has a prosecutor. Yet the case continues
I.
The majority takes a superficially appealing position that the district court must first decide the government‘s motion to dismiss before this court may grant a writ of mandamus. In the ordinary course, this is how we proceed. Yet the facts heredemonstrate a series of irregularities by the government and the district court. We reserve the writ of mandamus for extraordinary cases, and the circumstances in Flynn‘s case are nothing if not extraordinary.
Currently pending before the district court is the government‘s motion to dismiss the charges against Flynn under
In August 2016, the FBI began investigating Flynn as part of a larger investigation into Donald Trump‘s presidential campaign and its connections to Russian officials. After four months of investigation, the FBI determined that there was “no derogatory information” related to Flynn and that the investigation into his activities should be closed. Id. at 3–4 (internal citations omitted). Before the case was formally closed, however, the FBI learned of phone calls between Flynn and Russian Ambassador Sergey Kislyak that occurred in December 2016—after Flynn was named the incoming National Security Advisor for President-Elect Trump.Several FBI agents interviewed Flynn in the White House on January 24, 2017. Id. at 8. By the time of the interview, the agents already possessed transcripts of the calls and therefore knew exactly what had been communicated. Nonetheless, contrary to the wishes of Acting Attorney General Sally Yates and ordinary FBI practice, the investigators declined to notify the White House of what had been said on the calls before interviewing Flynn. The FBI also failed to notify the Department that it was proceeding with the interview on the day in question. That the investigators were going outside the chain of command was later admitted by FBI Director James Comey, who noted that the FBI would not ordinarily “have done or gotten away with” such conduct. Id. at 7. When the agents met with Flynn, they failed to provide him with transcripts of the calls or to warn him that making false statements would be a crime. They also pressured him not to bring his lawyer, telling him that if he wanted anyone else present at the meeting,
Flynn is alleged to have made several false statements during the interview. At the time, however, the FBI agents who questioned him—agents who possessed transcripts of Flynn‘s conversations with Kislyak—“had the impression … that Flynn was not lying or did not think he was lying.” Id. at 9. Nonetheless, Special Counsel Robert Mueller filed a criminal information against Flynn months later, charging him with a single count of making false statements under
The sentencing hearing was continued to permit Flynn to conclude his cooperation with the government in accordance with his plea deal. After retaining new counsel and filing a series of discovery motions, on January 14, 2020, Flynn moved to withdraw his guilty plea for a variety of reasons, including that the government had failed to comply with its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963),1 and that the government had breached the plea agreement by seeking prison time. The motion to withdraw is still pending before the district court.
On May 7, 2020, the Department filed a Rule 48(a) motion to dismiss the charges against Flynn. The government emphasized that Flynn‘s statements were not material because
by the time of the January 24 interview, the FBI had already concluded there was no legitimate basis to continue investigating him. The transcripts of the phone calls “were entirely appropriate on their face,” Motion to Dismiss Information, at 13–14, which, along with the FBI‘s shifting justifications for his interview, “suggest[ed] that the FBI was eager to interview Mr. Flynn irrespective of any underlying investigation,” id. at 16. In light of the newly discovered evidence, the government averred that it could not prove beyond a reasonable doubt that Flynn‘s statements were false. The government concluded that “continued prosecution … does not serve a substantial federal interest.” Id.Flynn did not oppose the government‘s motion.
The district court did not grant the unopposed motion to dismiss. Instead, it “exercise[d] [the court‘s] inherent authority to appoint The Honorable John Gleeson
1:17-cr-232, ECF No. 205, at 1 (D.D.C. May 13, 2020). The district court also directed Gleeson to “address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to
Flynn filed an emergency petition for a writ of mandamus requesting that this court order the district court to immediately: (1) grant the Department‘s motion to dismiss; (2) vacate Gleeson‘s appointment as amicus curiae; and (3) reassign the case to a different district judge. Mandamus Pet. 2. The panel ordered a response from the district judge. See D.C. CIR. R. 21(a). In his response, the district judge explained that he sought a hearing and appointment of amicus to “fill the adversarial gap to ensure full consideration of the issues,” engage in a “factbound inquiry” about “whether Mr. Flynn should be subject to any sanction” for changing his plea, and “conduct investigations as necessary.” Sullivan Response 32–35 (internal quotation marks omitted). The panel also invited the government to respond, which it did in support of mandamus. The panel granted the petition in part and directed the district judge to grant the government‘s
for rehearing en banc” that the district judge filed through retained counsel. Order, In re Michael T. Flynn, No. 20-5143 (D.C. Cir. July 30, 2020).3
Although mandamus is an extraordinary remedy, the writ exists for courts of appeals to prevent “judicial usurpation of
power, or a clear abuse of discretion,” such as an action that “would threaten the separation of powers by embarrassing the executive arm of the Government.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380–81 (2004) (citing Ex parte Peru, 318 U.S. 578, 588 (1943)) (cleaned up). We use the writ to prevent future errors by trial courts and to correct judicial excesses that could have far reaching consequences.4 See In re Hillary Rodham Clinton & Cheryl Mills, No. 20-5056, slip. op. at 19 (D.C. Cir. Aug. 14, 2020) (citing, inter alia, In re Kellogg Brown & Root, Inc., 756 F.3d 754, 763 (D.C. Cir. 2014) and Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C. Cir. 1975)). For mandamus to issue under the All Writs Act,5 “three conditions must be satisfied: (i) the petitioner must have ‘no other adequate means to attain the relief he desires‘; (ii) the petitioner must show that his right to the writ is ‘clear and
indisputable‘; and (iii) the court ‘in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’” United States v. Fokker Servs. B.V., 818 F.3d 733, 747 (D.C. Cir. 2016) (quoting Cheney, 542 U.S. at 380–81).
Mandamus is appropriate in this case. First, the Executive Branch has a clear and indisputable right to control the initiation and dismissal of prosecutions. The “leave of court” authority under
Second, the Executive Branch has no adequate alternative remedy to mandamus. Even if the district court ultimately
grants the motion to dismiss, that would not alleviate the harms resulting from the supervision and inquisition delineated by the district court in its orders and briefing. As we have previously recognized, such an infringement upon the Executive‘s charging authority “inflicts an ‘irreparable injury’” for which an appeal is not an adequate alternative remedy. Fokker Servs., 818 F.3d at 749 (quoting In re al-Nashiri, 791 F.3d 71, 79 (D.C. Cir. 2015)). Forestalling such irreparable harm to the Executive Branch makes mandamus appropriate here because the district court has adopted a flawed view of its authority in a manner that infringes on the exclusive constitutional powers of a separate and independent branch of government.
In denying the writ of mandamus, the majority relies only on its determination that Flynn and the Executive Branch have adequate alternative remedies, namely the eventual grant of the motion, the possibility of appeal, or even a writ of mandamus at some unspecified later time. Maj. Op. 7. The majority does not explain how these remedies would repair unlawful incursions on the Executive Branch. Instead, the majority dodges the constitutional questions by simply asserting a truism applicable to every mandamus case—a party could wait for an appeal or even a later mandamus petition. The ordinary availability of appeal does not relieve this court of its duty to examine the specific factual context of each mandamus petition and the precise irreparable harm alleged. We have no metric for judging the adequacy of alternative remedies without assessing the underlying harm—our cases demonstrate that the mandamus inquiry is holistic and its three prongs intertwined.
Nevertheless, the majority remains content with prospective remedies and sidesteps harms to the Executive. Our mandamus inquiry requires more than this piecemeal approach, particularly when grave separation of powers concerns are at stake. Judicial encroachments on the executive
power cannot be remedied simply by requiring the Executive to submit to a district court‘s supervision and then seek appeal. Mandamus is appropriate here.
A.
When reviewing a mandamus petition alleging harms to the Executive Branch, we often begin by analyzing whether the district court “overstepped its authority” in a manner that infringed on the Constitution‘s separation of powers. See Fokker Servs., 818 F.3d at 740-47. Therefore, I first consider whether Flynn and the government have established a clear and indisputable
The basic constitutional framework provides context for understanding how the district court‘s actions encroach on the executive power. At the outset, it is long established that the Executive Branch has the exclusive authority to initiate and halt prosecutions. The Constitution vests the Executive with the independent and unreviewable authority to decline to pursue criminal charges. See, e.g., ICC v. Bhd. of Locomotive Eng‘rs, 482 U.S. 270, 283 (1987) (“[I]t is entirely clear that the refusal to prosecute cannot be the subject of judicial review.“); United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.“) (citations omitted); Confiscation Cases, 74 (7 Wall.) U.S. 454, 458 (1868); see also Heckler v. Chaney, 470 U.S. 821, 831 (1985). Under
818 F.3d at 737. “The Presidential power of prosecutorial discretion is rooted in Article II, including the Executive Power Clause, the Take Care Clause, the Oath of Office Clause, and the Pardon Clause.” In re Aiken Cnty., 725 F.3d 255, 262 (D.C. Cir. 2013) (Kavanaugh, J., concurring). Under
By contrast, the Article III judicial power includes no authority to initiate, pursue, or oversee decisions to prosecute. As the Supreme Court recently admonished, “courts are essentially passive instruments of government. They do not, or should not, sally forth each day looking for wrongs to right. They wait for cases to come to them.” United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (cleaned up). The judicial power includes the ability to adjudicate guilt and issue a sentence upon conviction. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J., concurring in the judgment) (“The judicial power is the power to decide, in accordance with law, who should prevail in a case or controversy. See Art. III, § 2. That includes the power to serve as a neutral adjudicator in a criminal case, but does not include the power to seek out law violators in order to punish them.“). The Article III courts have no power to make prosecutorial decisions. And for good reason. Lacking in political accountability to the people, judges have no mandate to pursue justice by choosing whom to prosecute.8 If the public disagrees with law enforcement decisions, it may hold the President and his Attorney General accountable. When the Executive declines to bring a prosecution, the court has no power to force a different result, a reality reinforced by the pardon power,
It is against this constitutional backdrop that district courts must apply the “leave of court” requirement in
Indeed, no appellate court has upheld a district court‘s denial of an unopposed
The majority retreats from any consideration of these bedrock principles by focusing exclusively on the fact that the district court has not yet concluded its proceedings. But we need not reach the end of those proceedings to recognize and provide a remedy for the ongoing harm to the Executive Branch. Whatever the scope of “leave of court” in
- The district court appointed as amicus John Gleeson, after Gleeson had just written an op-ed arguing the government‘s
Rule 48(a) motion “reeks of improper political influence” and advocating for the district court to hold “a full, adversarial inquiry,” including “hearings to resolve factual discrepancies.” Gleeson also suggested that the district court “compel the department to reveal ... the actual evidence underlying the prosecution,” and “order[] disclosure of” Executive Branch materials. John Gleeson, et al., Opinion, The Flynn Case Isn‘t Over Until the Judge Says It‘s Over, WASH. POST, May 11, 2020. - After granting Gleeson‘s motion to hold a proceeding examining, inter alia, “any additional factual development [Gleeson] may need before finalizing [his] argument in opposition to the government‘s motion,” Mot. of Amicus Curiae, Flynn, No. 1:17-cr-232, ECF 209, at 1 (D.D.C. May 15, 2020), the district court established a briefing and hearing schedule, Minute Order, Flynn, No. 1:17-cr-232 (D.D.C. May 19, 2020).
- Gleeson asked the district court to probe the government‘s motives for dismissing the case, affirmatively find the given reasons pretextual, and examine outside evidence—including presidential tweets and DOJ filings in other cases—to determine
that the government acted in bad faith.10 Br. for Amicus Curiae, Flynn, No. 1:17-cr-232, ECF 225, at 26, 32-34, 38-39, 40-45, 57-59 (D.D.C. June 10, 2020), - Gleeson also asked the court to consider the “background of a severe breakdown in the traditional independence of the Justice Department from the President” and to find that “[e]verything about this is irregular.” Id. at 57, 59.
- In response to the petition for mandamus, the district judge asserted that he must resolve several factual questions and “inquir[e] into the facts set forth in, and surrounding, the government‘s filing,” and determine whether these facts “provide reason to question the presumption of regularity that ordinarily attaches to prosecutorial decisions.” Sullivan Panel Br. 1-2 (cleaned up).
- The district judge further maintained that he will require additional information about why “[t]he motion did not explain the absence of any line prosecutors, including those who had previously prosecuted the case ... [or] contain any declarations or affidavits from witnesses with personal knowledge supporting the government‘s new factual representations“; why “the motion does not mention Mr. Flynn‘s March 2017 false statements to DOJ relating to his work for Turkey, which ... were relevant conduct for his guilty plea“; and why “the government has not moved to withdraw any of its prior pleadings in the case, including its sentencing memoranda, or any of the representations it previously made in open court regarding the purported materiality of Mr. Flynn‘s false statements.” Id. at 15-16.
- The district judge also suggested that he will make “[a] finding” regarding whether “the Government‘s later efforts to terminate the prosecution were ... tainted with impropriety” and that he “can—and arguably must” “question the bona fides of the government‘s motions.” Id. at 28-29 (cleaned up).
- The district judge will use the proceedings to determine “unanswered questions of fact“; to “resolve some of the factual and legal questions that remain outstanding“; “to inquire whether the government maintains its factual representations that Mr. Flynn is guilty as to those false statements“; and to “illuminat[e] the full circumstances surrounding the proposed dismissal and the government‘s current position on Mr. Flynn‘s conduct.” Sullivan Panel Reply 1, 10-12.
- In his petition for rehearing en banc, the district judge asserted he has the authority to “develop[] [his] own record of the prosecution‘s charging decisions” and “confront[] government attorneys with their statements during trial that undermine[] their motion to dismiss.” En Banc Pet. 6-7 (citations and quotation marks omitted).
-
The district judge also stated he will use the proceedings to go beyond the four corners of the government‘s motion to dismiss because “it is hard to imagine that such ‘malfeasance’ would be apparent on the face of the government‘s motion.” Id. at 13 n.2.
These proceedings and representations make clear the breadth and depth of the district judge‘s inquiry, which includes factual development of DOJ‘s motives and internal decisionmaking. The district judge has stated that he will look outside the government‘s motion to search for evidence that the presumption of regularity has been overcome. But this is to give the government no presumption of regularity at all. As we recently explained in granting a writ of mandamus to former Secretary of State Hillary Clinton, “[t]he mere suspicion of bad faith on the part of the government” cannot overcome the presumption of good faith. In re Hillary Rodham Clinton, No. 20-5056, slip. op. at 12. The district judge identifies nothing on the face of the government‘s motion to dismiss that overcomes the presumption of regularity to which the Executive is entitled. Nor does the district judge offer any evidence of bribery, animus, or other similar reasons for digging into the internal workings of the Executive Branch.
The majority does not address the substance of the district court‘s proceedings or the clear representations about the scope of inquiry, asserting only that “it is simply not the case that the Executive will be irreparably harmed by the procedures ordered by the District Court.” Maj. Op. 9. To reach this result, the majority relies heavily on counsel‘s assurances at oral argument that the district judge probably will not engage in factfinding and may grant the motion to dismiss. Maj. Op. 7, 11-12. But these tentative assurances are plainly contradicted by the district judge‘s actions as well as his representations in multiple briefs before this court.11 Counsel‘s remarks at oral argument cannot make speculative the many clear representations in the district judge‘s briefs.
While it is at least irregular for a district judge to retain counsel in responding to a mandamus petition, see Dissenting Op. 6 (Henderson, J.), it is even more peculiar for the majority to credit counsel‘s representations at oral argument as evidence that the contemplated harms are speculative. It is unclear to what extent counsel can make concessions regarding the future proceedings of an independent Article III judge. This is just another reason the majority would do better to rely on the district judge‘s statements in his orders and briefs when assessing the harms of the proceedings. By shutting its eyes to the irreparable harms and failing to pronounce as improper this probing inquisition, the majority emboldens the district court to make good on its pledge to superintend and fact check the Executive.
We simply have no basis for assuming, as the majority does, that the proceedings will steer clear of the elaborate factfinding and evidence gathering process aimed at uncovering “malfeasance” by the Department. The district court candidly states the scope of its inquiry, but that inquiry goes too far because a court may not “deny a prosecutor‘s Rule 48(a) motion to dismiss charges based on a disagreement with the
In reaching this conclusion, I note that it takes nothing from the substantial judicial power to recognize that a single district court cannot step into the shoes of the Attorney General. As John Marshall explained, “[T]he nation may at will stop [a] prosecution. In this respect the President expresses constitutionally the will of the nation; and may rightfully ... direct that the criminal be prosecuted no farther. This is no interference with judicial decisions, nor any invasion of the province of a court. It is the exercise of an indubitable and Constitutional power.” See 6 ANNALS OF CONG. 615 (1800). To state what should be obvious, finding a harm justifying mandamus is not a commentary on the wisdom of the Department‘s prosecutorial decisions regarding Flynn. Rather, a grant of mandamus in this case would recognize that the district court abused its discretion and usurped the Executive Branch‘s exclusive constitutional power to dismiss a prosecution.
B.
The majority does not grapple with these harms, but instead argues that Flynn and the government have an adequate alternative remedy, namely, pursuing relief after the district court decides the motion to dismiss. The majority establishes a novel and effectively categorical rule that “a petition for mandamus filed in anticipation of a district court argument is almost invariably premature.” Maj. Op. 11. Such a rule, however, flies in the face of Supreme Court and circuit precedent, which recognize that a writ of mandamus must issue when a district court sets out a course that will result in an unwarranted intrusion on the Executive Branch, irrespective of whether the district court has already held a hearing or decided a particular motion. The majority maintains that appeal is an adequate alternative remedy only by disregarding the harms to the Executive Branch. The mandamus standard, however, treats the harm and adequate remedy as two sides of the same coin.
Upon finding a district court has encroached on the executive power, we have granted mandamus as a matter of course, even if it stymied further proceedings, factfinding, or discovery by the district court. For instance, in In re Cheney, 544 F.3d 311 (D.C. Cir. 2008), we noted that the district court had not yet ruled on a motion to dismiss, but we nonetheless granted partial mandamus to modify a discovery order to prevent “interrupt[ion]” of “[t]he duties of high-ranking executive officers.” Id. at 314. Similarly, in In re Sealed Case No. 98-3077, 151 F.3d 1059 (D.C. Cir. 1998), we held that a district court‘s “procedural orders” subjecting the independent counsel to “discovery and an adversarial hearing” would cause irreparable injury to the government. Id. at 1065. Because the discovery period and hearing would “divert petitioner‘s focus ... from directing the grand jury investigation at a crucial juncture,” id. at 1066, this court granted the independent counsel‘s petition and vacated “the procedural aspects of the district court‘s orders,” id. at 1077.
Likewise, in Cobell, 334 F.3d 1128 (D.C. Cir. 2003), we held that mandamus was appropriate to vacate the appointment of a “court monitor” to oversee the Department of the Interior‘s compliance with a court order. Id. at 1139-40. We concluded that the district court had no inherent authority to make such an appointment over the government‘s objection that “the appointment violated the separation of powers.” Id. at 1141-42. Finally, in Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973), this court held that separation of powers concerns could justify mandamus even if “direct appeal” was available “as an alternative basis for review.” Id. at 707 & n.21. The court held that appeal after judgment or non-compliance with an order was not adequate because the “central question that the President raises—whether the District Court exceeded its authority in ordering an in camera inspection of the tapes—is essentially jurisdictional.” Id. at 707. Thus, waiting for direct appellate review was “a clearly inadequate remedy” because the Executive need not submit to actions beyond the district court‘s jurisdiction. Id. (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 385 (1947)). The majority is simply wrong that we have never issued the writ before a district court has concluded its proceeding.
In the face of alleged incursions on the executive power, the irreparable harm inquiry focuses on the substance of the district court‘s actions, not the timing of whether it has ruled on a motion. Here, the district court‘s actions substantially harm the Executive. Although the government and Flynn both support the motion to dismiss, the district court contemplates an adversarial hearing, with amicus appointed to maintain a manufactured adversity in a criminal prosecution. See Maj. Op. 12 (noting that district court “appointed amicus to ensure adverse presentation of the issues“).12 Cf. In re Sealed Case No. 98-3077,
151 F.3d at 1065-66. Moreover, the district court asserted an “inherent authority” to appoint the amicus, Order Appointing Amicus Curiae, Flynn, No. 1:17-cr-232, ECF No. 205, at 1 (D.D.C. May 13, 2020), but in Cobell we explained that “[a] judicial claim to an ‘inherent power’ is not to be indulged lightly, lest it excuse overreaching ‘[t]he judicial Power’ actually granted to federal courts by Article III of the Constitution of the United States, and the customs and usages that inform the meaning of that phrase,” 334 F.3d at 1141. The district court‘s pursuit of additional facts outside the motion to dismiss is analogous to an overbroad discovery order, because the district court seeks disclosure of information to which it is not entitled—such as information about the Executive Branch‘s internal decisionmaking process.13 Although the usual rule for
would not be an appropriate remedy, cf. In re Hillary Rodham Clinton, No. 20-5056, slip op. at 7-8.14
The majority appears to recognize that the district court‘s “disposition” or “other order” could intrude upon the Executive, and if such harm occurs, the Executive has the “possibility of future mandamus relief.” Maj. Op. 12. The majority‘s reasoning suggests that mandamus later is an adequate remedy to mandamus now. But the district court has already taken actions that, in the government‘s view, “violate the separation of powers.” Id. It is not clear what precise harm the majority is waiting for or what more the Executive would have to allege. Counsel for the district judge suggested that if the hearing focuses on impermissible factfinding, the government could raise objections and even seek appellate review then, including presumably before the district court‘s final decision on the motion to dismiss. Oral Arg. Tr. at 123-125; 142-145.
But the Executive need not resort to multiple mandamus petitions to challenge each separate intrusion during a process of factfinding. Instead, the Supreme Court has made clear that mandamus can and should issue before a proceeding spirals out of control. In Cheney, the Supreme Court rebuked this court for downplaying “the burden that would arise from the District Court‘s insistence that the Vice President winnow the discovery orders by asserting specific claims of privilege and making more particular objections.” 542 U.S. at 389 (citations omitted). Postponing mandamus to allow an intrusive hearing process to play out leaves the Executive with the “sole option” of asserting piecemeal objections and sets the “coequal branches of the Government ... on a collision course.” Id. The path cleared by the majority will force the Executive to make specific objections to each question or request for further facts about the Department‘s internal decisionmaking—questions the district court steadfastly maintains are necessary. This approach places courts “in the awkward position of evaluating the Executive‘s claims of confidentiality and autonomy” and “balancing the need for information in a judicial proceeding and the Executive‘s Article II prerogatives.” Id. The All Writs Act mandamus was designed to prevent such “constitutional confrontation[s]” between the Judiciary and the Executive. Id. at 389-90 (cleaned up).
Wishful waiting cannot forestall the irreparable harm to the Executive Branch. Because there are no adequate alternative means to prevent judicial incursions on the executive power—harms that also directly impact the individual liberty of Flynn—mandamus must issue.
Finally, we must determine whether, in the exercise of our discretion, issuance of the writ “is appropriate under the circumstances.” Id. at 381 (citing Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)). Mandamus under the All Writs Act is understood as a supervisory and discretionary power. The final prong of the Cheney test rests in part on our judgment and requires us to look at the “totality of the circumstances.” In re Hillary Rodham Clinton, No. 20- 5056, slip op. at 19. Because the district court‘s actions indicate a superintendence of prosecutorial discretion that goes beyond the judicial power and any reasonable inquiry to grant “leave of court” under
Upon finding of irreparable harm to the Executive, we readily conclude that mandamus is appropriate, often without further analysis. See Fokker Servs., 818 F.3d at 750. Because the majority does not grapple with the harms to the government, it also glosses over the appropriateness of mandamus. While our cases rarely discuss this prong in detail, our recent decision granting a writ of mandamus to Clinton provides an instructive discussion of the appropriateness analysis. We explained the appropriateness of issuing mandamus when necessary to prevent trial courts from committing similar errors in the future. In re Hillary Rodham Clinton, No. 20-5056, slip op. at 19. We found it relevant that the district court had a “deeply flawed view” of the law, specifically, the
To begin with, there can be little question that the district court must ultimately grant the government‘s motion to dismiss. “In fact, it would be highly unusual if it did not, given the Executive‘s constitutional prerogative to direct and control prosecutions and the district court‘s limited discretion under Rule 48(a).” Concurring Op. 2 (Griffith, J.). If the district court denies the government‘s request, this case will be in exactly the same posture as Fokker Services, where we granted mandamus to “correct” the district court‘s intrusion on the Executive Branch‘s prosecutorial discretion. 818 F.3d at 747. For the district court to deny the motion would be unprecedented: No party has been able to identify a case in which a court of appeals has upheld the denial of an unopposed
Furthermore, speculation and “pique[d] curiosity” cannot justify judicial supervision of the Executive Branch. In re Hillary Rodham Clinton, No. 20-5056, slip. op. at 20. The district court has pointed to nothing that overcomes the presumption of regularity to which the government is entitled regarding its motion to dismiss. Rather, by maintaining that it must ferret out additional facts to uncover any “malfeasance,” the district court has “traveled far afield,” id., from its limited role in reviewing unopposed motions to dismiss. Moreover, as explained above, the district court here has advanced “a deeply flawed view” of
Mandamus is also appropriate to allow the Executive to self-correct the myriad law enforcement and prosecutorial errors the Department has candidly confessed. In its motion to dismiss, the Department details problems with the investigation and prosecution, including: the FBI‘s reopening of the investigation despite having found an “absence of any derogatory information“; the lack of “a substantial federal interest in penalizing a defendant for a crime that [the government] is not satisfied occurred“; the lack of a properly predicated investigation; the FBI‘s rogue investigation undertaken without DOJ approval; and the circumvention of protocol in conducting Flynn‘s White House interview. Motion to Dismiss Information, at 3-12 (internal citations omitted). Despite this parade of horribles in the prosecution of Flynn, the district court speculates that perhaps the real “malfeasance” might have occurred with the motion to drop the prosecution. The essential judicial power to determine guilt and innocence does not authorize a similarly vigorous role in granting “leave of court” to dismiss a prosecution. To the contrary, in our system of separated powers, the Judiciary has no inquisitorial role in maintaining prosecutions the Executive chooses to dismiss.
Finally, the harms to Flynn also weigh in favor of the appropriateness of the writ. The majority takes consolation in the fact that Flynn is not “in confinement,” Maj. Op. 8, but Flynn cites numerous harms stemming from protracted litigation, including his continued submission to weekly reporting requirements; the government‘s custody of his and his son‘s property, including his passport; and his inability to travel. I have focused my analysis on the harms to the Executive Branch because our cases maintain that “the burdens of litigation are normally not a sufficient basis for issuing the writ.” In re al-Nashiri, 791 F.3d at 80. We have recognized, however, that “at some point, even the temporary subjection of a party to a Potemkin jurisdiction so mocks the party‘s
* * *
This case highlights the essential connection between the Constitution‘s structure of separated powers and the liberty interests of individuals. While modern administrative government often blurs the separation of powers, at least in criminal cases courts have steadfastly policed the separation of powers, ensuring that a criminal defendant may lose his liberty only upon action by all three branches of the government. By allowing the district court to scrutinize “the reasoning and motives” of the Department of Justice, En Banc Pet. 13 (quotation marks omitted), the majority ducks our obligation to correct judicial usurpations of executive power and leaves Flynn to twist in the wind while the district court pursues a prosecution without a prosecutor. The Constitution‘s separation of powers and its protections of individual liberty require a different result. I respectfully dissent.