Decrying an “impermissible intrusion into the sole power of the executive branch under the Take Care Clause” of the U.S. Constitution, Attorney Sidney Powell argued Friday that the U.S. Court of Appeals for the District of Columbia Circuit should grant a writ of mandamus requested by retired Lt. Gen. Michael Flynn, the former National Security Advisor to President Donald Trump.
Procedurally, the writ of mandamus, if granted, would force U.S. District Judge Emmet Sullivan to drop Flynn’s case at the request of the government.
Powell argued that “there is no case or controversy any longer” because “the government has quit.” While Rule 48(a) of the Federal Rules of Criminal Procedure allow the dismissal of Flynn’s case “with leave of court,” Powell argued that the rule only allowed Sullivan to examine the record of the case, rather than to dig into underlying matters by creating a record of his own.
Sullivan appointed a former federal judge, John Gleeson, to present amicus arguments against dismissal, including arguments on whether or not Flynn’s guilty plea should be kept in place and whether Flynn had committed perjury.
“I think it’s clear from the amicus position now that they want to take Gen. Flynn to sentencing as soon as possible and impose upon him the maximum possible sentence — and to make us go through that process when the ultimate result has to be the grant of the motion to dismiss,” Powell argued. “The government is just wasting resources out the wazoo pursuing this, and the toll it’s taking on the defendant is certainly irreparable harm.”
Noting that the other lawyers in the case were being paid by the government, Powell argued in favor of shutting the case down now by noting “the toll it takes on a defendant to go through this [process] is absolutely enormous, and it’s not justified in this case.”
Powell said that because the Department of Justice has moved to dismiss the case, no case or controversy exists under Article III, Section 2 of the U.S. Constitution. Therefore, Judge Sullivan’s hands are ultimately tied, she argued, regardless of Rule 48(a).
“He can’t go outside his lane,” Powell said. “The government has quit, and it’s time to leave the field.”
In response to a question from Circuit Judge Neomi Rao, a Trump appointee, Powell said that Judge Sullivan “doesn’t have the authority to prosecute anyone for contempt.”
“Isn’t that inconsistent with the Supreme Court?” Rao asked.
“I don’t see that inconsistently,” Powell said.
“In Young, the court said that the district court can appoint a private party to prosecute contempt charges,” Rao noted.
“In the circumstances of this case, contempt cannot” result from the decision to withdraw the plea, Powell said in return. She argued that Judge Sullivan did not have the jurisdiction to go after Flynn for perjury without a live case or controversy before him.
Powell argued that the government was seeking to drop Flynn case because of “enormous . . . government misconduct,” not because of favoritism.
Circuit Judges Robert Wilkins, a Barack Obama appointee, and Karen Henderson, a George H. W. Bush appointee, were also on the panel.
Henderson asked whether Rule 48(a) should prevent Sullivan from holding a hearing. “He’s not merely a rubber stamp,” Henderson said, suggesting that she believe Sullivan was at lest entitled to make some inquiry into the case.
Principal Deputy Solicitor General Jeffrey Wall argued that the Flynn matter should be examined on its merits and on the underlying harm being suffered by Flynn, who is, in his view, being forced by Sullivan to continue to fight a prosecution that the government has agreed to drop.
Wall called Gleeson’s amicus brief a “70-page polemic” which is resulting in a “public spectacle” that will harm both the the executive and the judicial branches of government.
Wall said Sullivan could not engage in the sort of “intrusive fact-intensive inquiry” that Sullivan has contemplated under Rule 48(a).
Henderson questioned the drastic procedural step of issuing the proposed writ of mandamus. Calling Sullivan an “old hand” and an “excellent trial judge,” Henderson suggested that Sullivan should be allowed to rule on the government’s motion to dismiss before the circuit court entertains the matter.
Wall said that the case was well past the regular order of business and had crossed into the mandamus threshold.
“This is a separation of powers case,” Wall said. “You have actual conflict between the branches . . . the court wants to inquire into why we did this in the face of allegations that there was some impropriety.”
That, Wall said, is exactly what previous cases suggest “courts may not do.” He complained that Attorney General William Barr was being dragged through the mud by the courts and that that was unconstitutional.
Attorney Beth Wilkinson, representing Sullivan, said Rule 48(a) required Sullivan to look further into why the Trump DOJ suddenly wanted the case tossed.
In response to questions from Circuit Judge Rao, Wilkinson said that the DOJ and Flynn could not simultaneously ask for a dismissal with prejudice — a permanent shutdown of the case with no chance for resuscitation by a future prosecutor under another administration — while arguing Sullivan did not have jurisdiction because of the motion to dismiss. Sullivan has to have jurisdiction to grant the motion, Wilkinson said.
As to Sullivan’s appointment of Gleeson, “all the court is doing is getting advice,” Wilkinson argued.
Rao, who focused lengthy questions on Wilkinson, noted that the appointment of an amicus party to subsume the usual arguments of the government was not an “everyday occurrence.” She also asked who the amicus was representing.
“They’re arguing on behalf of the adversarial position,” Wilkinson said, noting that, here, the case was strange because the parties were suddenly not opposed. “The government and Mr. Flynn are aligned.”
The court needed to “understand the opposing arguments,” Wilkinson added. “It doesn’t mean that the district court thinks that this motion [to dismiss the case], under Rule 48, should be denied; all we’re doing coming forward is arguing the other side.”
The DOJ is “asking the court . . . to come in and reverse or vacate its findings. And, so, the court has the right, the duty, and the language, under leave of court, to ask the government questions,” Wilkinson said. “The Rule 48 language that’s been in the statute for over 80 years, that the Supreme Court suggested and Congress approved — there’s not a case since that language went in that says ‘leave of court’ is meaningless when the parties agree. And that’s the government and the petitioners’ position. To be clear, they’re saying those words mean nothing when the defendant and the government agree. And that makes no sense.”
Rao suggested that “leave of court” could mean more than a “rubber stamp” but not enough to allow a district judge to force a case to continue toward sentencing against a prosecutor’s wishes. Wilkinson said that the remedy, then, would be to deny the request for a writ of mandamus, let the judge investigate, and then deal with the ultimate decision to dismiss or sentence at a later date.
[Image via SAUL LOEB/AFP/Getty Images]