The DOJ supports its petition for writ of mandate with an explosive brief
It was highly unusual for the D.C. Circuit Court of Appeals to order Judge Emmet Sullivan to explain his refusal to grant General Michael Flynn's motion to dismiss. That made it easy to miss that it also allowed the Department of Justice the right to file a brief supporting its petition.
Sullivan filed his pathetic and dishonest brief on Monday. The DOJ's brief, however, is filled with devastating facts and entirely on-point legal authority. What makes it even more compelling is its front page, which is weighted with the names of big guns. The DOJ is taking this matter very seriously.
You have to see the names on the DOJ's brief to appreciate just how many people in the DOJ are paying very close attention to Flynn's petition. (You can read the brief here.)
According to Sean Davis, having this many heavy hitters on an appellate brief is almost unheard of:
In a sign of how important DOJ views the underlying constitutional issues in the case, the formal brief to the appellate court wasn't just signed by the line attorney managing the government's case. Instead, it was signed by Noel J. Francisco, the Solicitor General of the United States who is tasked with representing the U.S. government in the most important appellate cases across the country; Brian A. Benczkowski, the Assistant Attorney General and head of DOJ's entire criminal division; Deputy Solicitors General Jeffrey B. Wall and Eric J. Feigin; assistants to the Solicitor General Frederick Liu and Vivek Suri; Michael R. Sherwin, the acting U.S. Attorney for the District of Columbia; Kenneth C. Kohl, the acting Principal Assistant United States Attorney for D.C.; and Jocelyn S. Ballantine, the line prosecutor handling the Flynn case at trial. (Emphasis added.)
The brief is both impressive and, in some ways, a no-brainer. The law is so emphatically on the side of dismissal that it practically writes itself.
The statement of facts explains how egregiously the FBI set up Michael Flynn to drive him out of office as acting national security adviser. This disheartening tale manifestly merits dismissal. (It's noteworthy that everyone involved in this miscarriage of justice has been fired or quit involuntarily. It would be nice if at least some would be prosecuted.)
The legal arguments are straightforward: Under Art. II of the Constitution, the executive branch has the sole power to determine whether to prosecute a case. The Judicial Branch may not directly interfere with this discretion. Nor may a judge attempt to act as a prosecutor by bringing criminal charges against any party.
If the prosecutor brings a motion to dismiss with prejudice (preventing itself from playing a cat-and-mouse game with the defendant by repeatedly refiling the case), and the defendant does not object, the trial court has no discretion to deny the motion — according to United States v. Fokker Servs. B.V. (D.C. Cir. 2016) 818 F.3d 733, the pre-eminent D.C. Circuit Court of Appeals case on the matter. Other decisions that would vest the judge with some discretion either pre-date Fokker or discuss the issue in an abstract way ("dicta") rather than ruling on it.
Even if one assumes solely for the sake of argument that the trial court has discretion on a motion to dismiss, the DOJ argues that the facts of this case require granting the motion. The Executive Branch is acting within its authority, and its arguments supporting dismissal are facially adequate. (This goes to the FBI's gross malfeasance, combined with the Obama-holdover DOJ's willingness to file an improperly based prosecution.)
The DOJ also swats back Sullivan's contention that the prosecution cannot dismiss a case after the defendant pleads guilty. Instead, federal law is clear that the government can dismiss cases even after a conviction is entered. Additionally, Sullivan hadn't entered a final judgment in this case because a judgment becomes final only after appeals are completed or skipped.
Finally, the DOJ explains that the trial court lacks any power to initiate a criminal charge. Even if Flynn's initial, false guilty plea before the court (which was arrived at under duress when the FBI threatened to go after his son) constitutes criminal contempt or obstruction, it's still up to the DOJ, not to the court, to act.
From a legal standpoint, the DOJ presents a compelling case. It is always possible, in this age of judicial activism, for a court to ignore the law to arrive at its preferred conclusion. I have seen it often enough practicing law in the People's Republic of California. But assuming that the circuit court in this case follows the law, it must issue the writ of mandamus and order Judge Sullivan to dismiss the Michael Flynn case with prejudice.