What I Wished Had Been Brought up en banc for In Re Flynn

Let’s see if I can collect my thoughts, now that the oral argument is over.

1. They really need my principal-agent theory of Rule 48. It perfectly fits the Justice Department’s argument as made by Mr. Wall and I think it would work for Flynn and Mrs. Powell too. The theory is that Rule 48 works by making sure that if the United States prosecutor dismisses a case, he is doing what the Attorney-General wants, not just what he wants to do for personal reasons. Rule 48 makes him explain his decision to the trial judge, and the trial judge can call up the prosecutor’s boss if he wants and say, “Do you know what your lawyer is doing and is this really the position of the United States, or has your counsel gone off the reservation?”.

This address the bribery hypothetical some judges asked about (Judge Wilkins brought it up first, I think).

Hypothetical. Suppose a professor has a video of the defendant bribing the prosecutor to bring a motion to dismiss, and he lets the judge know about the video (say, by filing it as an exhibit to an amicus brief, after requesting leave to be a friend of the court). Can the judge accept the amicus brief and deny the motion to dismiss?

Answer. The key here is what the Attorney-General thinks. The professor should have gone to the Attorney-General, not the Court. If he goes to the Court first, the judge should delay ruling on the motion to dismiss, or deny it without prejudice. Then he should notify the Attorney-General. The Attorney-General will then rush to tell the Court not to dismiss. Problem solved. Or, if the Attorney-General wants to dismiss the case anyway, for other reasons, he can do that, and the judge should grant the motion. Or, if the Attorney-General is corrupt and just makes the defendant bribe him insead of the prosecutor, the professor is free to tell the public and make this into a political issue.

2. Some judges were dismayed by the idea that trial judges wouldn’t be in a position to punish bribery. I was surprised at such naivete. Of course, the judges *do* have contempt power and can use it on the prosecutor, but they shouldn’t go at it indirectly by trying to force prosecution of the defendant for an unrelated crime– and, in fact, they don’t and shouldn’t have the power to prosecute the defendant even for the bribery.

Wall and Powell should have brought up the pardon power, as well as prosecutorial discretion. The President can pardon criminal defendants, without giving any reason. We know these pardons are often corrupt. Just remember President Clinton’s end-of-term pardons (something Democrats don’t like to remember, because Clinton made no attempt to justify them). Those pardons could be seen as an insult to the Court that convicted the criminals. But even if a pardon is obtained by bribery, nobody argues that a court can undo them. The remedy is political— which is why it didn’t work for Bill Clinton, who was headed off for retirement, was already going to be disbarred, and knew it would be too hard to prove criminality.

3. They needed my Astrologer Hypothetical. Suppose the prosecutor moves to dismiss charges, and the defendant agrees. The judge delays ruling, saying that he might well grant the motion, but he needs more information and in two years Mars will be aligned with Venus and that will tell us more. He appoints his personal astrologer as amicus curiae and directs him to report back in two years— assuring everyone that this is just input, and he will decide for himself. The prosecutor petitions for mandamus. Should the appellate court deny, saying that no motion has been denied yet and nobody has suffered any irreparable harm?

This would have deflected the hard-sounding question of whether there were any precedents on mandamus being granted without any motion having been decided wrongly or any order given by the court. It would have addressed the biggest question of all: why do you say there is any harm to waiting and appealing later?

4. Wall made the very good argument that Judge Sullivan has already, in public filings via his counsel, shown that he’s made up his mind on the legal issues around Rule 48 and Fokker. Quite apart from having decided that he disagrees with circuit law, which is reversible on appeal, this means he has decided without having heard out the parties— both of whom, of course, disagree with his view of the law. A trial judge has to give the parties a chance to argue the law; he can’t just decide in advance and then pretend to listen later and give them a chance to change his mind. Note that this is completely separate from the issue of whether Judge Sullivan is a party— something his counsel conceded several times he was not (though liberals on the web said anyone who thought he wasn’t a party was a fool– I should look those up and have some fun). And its independent of whether he had a right to petition for en banc. If he’d petitioned but kept his mandamus and en banc briefs to mandamus issues and not mentioned Rule 48, he’d be in the clear. I don’t see how this can be answered. So I am inclined to think that the case will be remanded to a different district judge.

5. The Court really needs the idea that mandamus is for judges making the wrong kind of decisions, not for making the wrong decision. It isn’t that he’s going to rule wrong on a motion, or that he has ruled wrong on one. It’s that he’s taking actions outside his authority, and the injured parties can’t get money damages later to compensate. This is a big point in my amicus pseudo-brief, and it makes sense of mandamus. . If a judge tells the parties he is going to make them strip and swim around in the river for him at a hearing next Thursday or he’ll sentence them to contempt, they should be able to get a mandamus to not have to do it, rather than wait till Thursday and refuse. Note that much of the harm here is to the judiciary: mandamus forestalls ridicule.

This is related to a problem with how some courts use the term “imminent harm”. They say that harm is not imminent until close in time, whereas it ought to mean “certain to happen and looming as an awful threat unless action is taken”. Here, I do disagree with courts. I think the common holding is, for example, that even if we all know someone is going to shoot you on Friday (because he’s said so) and your only chance to stop him is to tie him up today, it’s not imminent harm, so you can’t touch him.

6. 11:30pm: an addition. I knew I forgot something. Why has nobody made a big deal of how Gleeson wrote a Washington Post op-ed suggesting he appoint an amicus and investigate the decision to dismiss charges, and then Judge Sullivan did exactly that and appointed Gleeson as the amicus. This was ex parte. A judge is supposed to do things with the input of the parties, and not give his ear to either party or anyone else outside the courtroom to decide what to do. Even an amicus has to apply to the court for permission to give input, and the parties can file their objections to that motion. The parties have a right to be heard. Ex parte influence is not only unlawful, but doing this kind of thing shows such a tin ear for judicial ethics that it really makes you wonder about Judge Sullivan’s competence and honesty both.

Should I file a complaint to some kind of judicial ethics board? A separate post addresses that, Has Judge Sullivan Violated the Canons of Judicial Conduct?, and goes into another possible ethical violation: “A judge should not make public comment on the merits of a matter pending or impending in any court,” which he may have violated by his en banc petition, if it commented on the merits of the application of Rule 48 in the Flynn case.

2 replies on “What I Wished Had Been Brought up en banc for In Re Flynn”

This was excellent. What do you think of the somewhat subtle argument that Sidney Powell should requested a Writ of Prohibition vs a Wrig of Mandamus?

Thank you. I don’t know enough to say. I thought that in modern jurisprudence mandamus had come to encompass Prohibition, so it didn’t matter. Mandamus is to command action; Prohibition to command cessation, I think, but I don’t know why there would need to be two writs instead of one, and evn in the way I phrase it, “command’ appears in both. I can command you to stop, logically speaking. But maybe there ought to be a distinction. My guess is that there once was, but it was so manfiestly stupid to quibble about throwing out a petition and making the party refile or miss a deadline because he said Mandamus instead of Prohibition that the courts erased the distinction, so it became like antique, like a contract being under seal or not.

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