Posted on 06/24/2020 7:27:08 AM PDT by gandalftb
Agreed. This thing has been slow walked for way too long, almost certainly because if justice truly were blind, a whole LOT of big names (on BOTH sides of the isle) would be indicted with most/all convicted.
Civil suit - it is pretty obvious or it should be that he was deliberately targeted for a crime he did not commit. On top of that, there was a conspiracy to “get him fired” that involved felonious leaks by government officials to the media to create the appearance of chaos in the Trump White House and a fake controversy where Pence had “lied to the media” based on what they SELECTIVELY leaked. Remember - the leaked transcript was edited to create an appearance that the full transcript does not support. That was the basis to get him fired because they told Priebus and crew that Flynn might be compromised.
It was all BS. From start to finish. The deep state got Flynn removed as DNI. The deep state pushed the narrative that the Trump White House was incompetent. The deep state accused Pence of lying to do more damage. The deep state made it all up from start to finish.
Flynn was not the only victim here. Trump was their ultimate goal.
These are the own words of Idiot Judge Wilkins and is the money shot. It's about time that a court sided with the law and the Constitution and sent a strong message to rogue judge like Idiot Judge Sullivan. We may see an end to this sort of Shennanigans and return to the rule of law.
2-1 ruling - judges were Trump and George H.W. Bush appointees who ruled to dismiss, and the dissenting judge was an Obama appointee.
TOP DEFINITION —
Reuter : (verb) To create or render so as to mislead, deceive, or defraud others; to reuter a report.
“In the news, George Zimmerman was reutered from a Latino into a white man.”
Interesting how they pinpointed it.
Matches up with the Rice Memo to self on the 17th.
I’m pretty sure they were ALL Dem appointees.
It ain’t over til it’s over.
When does the dismissal order happen? Will Sullivan drag this out?
Dissent:
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 Federal Rule of Criminal Procedure 48(a)
without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they
compel its rejection. I therefore respectfully dissent from the majority’s grant of the writ.
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.
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 Rule 48(a) motion.
1. The majority argues that the district has “acted,” because by appointing amicus and scheduling a hearing, it has threatened to exercise “judicial supervision” over prosecutorial decision making. Majority Op. 16. By this logic, mandamus becomes an ordinary means to pretermit district-court consideration and have this court
decide whether to grant or deny a motion to dismiss once the lower court “acts” in a manner that threatens to scrutinize the prosecutor’s discretion. Relying as it does on diluting mandamus and overriding long-settled procedure, this reasoning collapses under its own
weight.
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 Rule 48(a) motion, but whether it may give consideration to such a motion before ruling on it. It should come as no surprise that, before today, neither we nor any other Court of Appeals has ever read Rule 48(a)’s “leave of court”
provision to mean that a district court may not even consider such a motion before giving its “leave.”
Cf. United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973)
(“[W]e do not think Rule 48(a) intends the trial court to serve merely as a rubber stamp for the prosecutor’s decision.”).
In fact, some of our case law clearly points in the opposite direction:
“The requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons.” Id. (emphasis added).
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, 18 U.S.C. § 3161 et seq., pursuant to a deferred
prosecution agreement, 818 F.3d at 737–38. The Court there had no occasion to make any decision about Rule 48(a), yet the majority invokes Fokker as “foreclos[ing] the district court’s proposed scrutiny” of such a motion. Majority Op. 7. Nor are we bound by Fokker’s sweeping elucidations on the scope of executive power, issued as they were in Fokker’s particular legal context. Cohens v. Virginia, 19 U.S. 264, 399 (1821) (“It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in
which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.”).
In addition to being improper, the majority’s reliance on
the Rule 48(a) dicta from Fokker creates a split with our sister Courts of Appeals. Fokker’s Rule 48(a) commentary fails to take due cognizance of federal appellate authority establishing that an important impetus behind the Supreme Court’s insertion into Rule 48(a) of the “leave of court” requirement was the protection of the public interest, not simply the prevention of abuse of the defendant.
See, e.g., In re Richards, 213 F.3d 773,
786–87 (3d Cir. 2000) (“Rule 48(a) . . . also permits courts faced with dismissal motions to consider the public interest in the fair administration of criminal justice and the need to preserve the integrity of the courts.”);
United States v. Cowan, 524 F.2d 504, 509–13 (5th Cir. 1975) (concluding that Rule 48(a)’s “history . . . belies the notion that [the Rule’s] only scope and purpose is the protection of the defendant. . . .
[I]t [is] manifestly clear that the Supreme Court intended to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice”).
In the same vein, numerous federal appellate courts have
recognized that a court in receipt of an unopposed Rule 48(a) motion may consider the public interest in ruling thereon.
See, e.g., United States v. Romero, 360 F.3d 1248, 1251 (10th Cir. 2004)
(“[A] court is generally required to grant a prosecutor’s
Rule 48(a) motion to dismiss unless dismissal is clearly
contrary to manifest public interest.”
(quoting United States v. Carrigan, 778 F.2d 1454, 1463 (10th Cir. 1985));
United States v. Pimentel, 932 F.2d 1029, 1033 n.5 (2d Cir. 1991) (same);
United States v. Hamm, 659 F.2d 624, 629 (5th Cir. 1981)
(“[E]ven when the defendant consents to the motion to dismiss, the trial court, in extremely limited circumstances in extraordinary cases, may deny the motion when the prosecutor’s actions clearly indicate a ‘betrayal of the public interest.’”
(quoting Cowan, 524 F.2d at 514)); Ammidown, 497
F.2d at 622
(concluding it is “appropriate” for a trial judge to consider the “protection of the public interest” “in considering whether to deny approval [] to dismissals of cases”);
see also Rinaldi v. United States, 434 U.S. 22, 31–32 (1977) (per curiam)
(in reviewing a district court’s denial of an unopposed Rule 48(a) motion, “agree[ing] with the Solicitor General that. . . no societal interest would be vindicated” by continuing the prosecution (internal quotation marks omitted));
cf. Young v. United States, 315 U.S. 257, 259 (1942) (“The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of
the enforcing officers.”).
Fokker’s oversight is understandable, since the analogy to Rule 48(a) was raised and addressed by only one of the three parties during briefing, such that the Court did not have the benefit of adverse presentation of the issue before expounding on it in dictum.
But the majority has used Fokker functionally to constrict the parameters of the District Court’s Rule 48(a) inquiry to include only the prevention of prosecutorial harassment of the defendant. No binding authority establishes this, and indeed the Supreme Court itself recognizes appellate authority to the contrary.
See Rinaldi, 434 U.S. at 29 n.15. In fact, the Rinaldi Court expressly reserved—found it “unnecessary to decide”—whether a district court had discretion “to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest.” Id.
To state, as Fokker did in language the majority now quotes, see Majority Op. 5, that “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,” 818 F.3d at 742 (citing Rinaldi, 434 U.S. at 29 n.15), is to intimate that the Supreme Court had occasion to
construe Rule 48(a) one way or another on this issue, which it did not.
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 Rule 48(a) motion as being “entitle[d] . . . to obtain and evaluate the prosecutor’s reasons,” and not “serv[ing] merely as a rubber stamp for the prosecutor’s decision.” 497 F.2d at 622.
According to Ammidown, “the judge should be satisfied that the agreement adequately protects the public interest” and “may withhold approval if he finds that the prosecutor” committed “such a departure from sound prosecutorial principle as to [constitute] an abuse of prosecutorial discretion.” Id. (citation omitted).
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 Rule 48(a) motion,
see id. at 5–6, 14–15 & n.5, that question is simply not before us.
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 Rule 48(a) motion may be had by the very court whose leave is required to effectuate that motion, but the majority’s need to engage in
such contortions to reach that conclusion is reason enough to deny the writ.
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 Flynn nor the Government cited such a case. The inconvenient reality is that the petitioner—
Flynn—has an adequate means, via a traditional appeal, to
attain relief should the District Court deny the Government’s Rule 48(a) motion.
See In re al-Nashiri, 791 F.3d 71, 78 (D.C. Cir. 2015)
(“Mandamus is inappropriate in the presence of an
obvious means of review: direct appeal from final judgment.”);
Cheney, 542 U.S. at 380–81 (noting that the requirement of absence of adequate alternative remedies is “designed to ensure that the writ will not be used as a substitute for the regular appeals process”).
This fact alone defeats our jurisdiction and requires the Court to dismiss Flynn’s petition for a writ of
mandamus.
See Cobell v. Norton, 334 F.3d 1128, 1140 n.* (D.C. Cir. 2003) (citing FED. R. APP. P. 21 and CIR. R. 21). In Ex parte Republic of Peru, in which the Supreme Court considered a petition for mandamus sought by Peru, the Supreme Court analyzed whether Peru had an adequate remedy. It concluded that Peru, as “a friendly sovereign state,” was entitled to have its claims “presented and settled in the course of the conduct of foreign affairs by [the Executive Branch],” and that Peru should not have to endure “the delay and inconvenience of a prolonged litigation” when the relief it seeks should be resolved in a non-judicial forum. 318 U.S. 578, 586–87 (1943). Here, and unlike in Ex parte Republic of Peru, the majority grants mandamus solely on the basis of a non-petitioner’s interests.
The majority goes on to say that we “must” consider the
irreparable harms of the non-moving party because that party filed the Rule 48(a) motion that got this ball rolling in the district court, but one need look no further than the majority’s immediately succeeding citation to find contradictory authority. See Majority Op. 17
(citing Doe v. Exxon Mobile Corp., 473 F.3d 345, 356–57 (D.C. Cir. 2007)).
“[W]e need not resolve the political question issue on
the merits at this time,” because “[n]one of the cases cited by our [dissenting] colleague stand for the proposition that we should grant a mandamus for which the executive has not prayed.” Exxon Mobile Corp., 473 F.3d at 356; see also id. at 357
(noting that, had the Executive “requested dismissal of the action,” the separation-ofpowers issue “would have been before the district court” in the first instance). And while the majority points out that the Government
offered at oral argument to file a mandamus petition, Majority Op. 17, the fact remains that no such petition has ever been filed, and thus none is before us.
See also Thompson v. United States, 444 U.S. 248, 250 (1980) (performing “independent examination of the record” and remanding, rather than granting, government’s motion to dismiss indictment).
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 motion, see Armstrong, 517 U.S. at 468, it has never cited the separation of powers as prohibiting the district court from holding a hearing on such a motion.
To the contrary, courts have allowed not just plain hearings (or oral arguments) on such motions to dismiss, but evidentiary hearings where the prosecutor is subject to questioning under oath. See United States v. Falk, 479 F.2d 616, 623 (7th Cir. 1973) (en banc)
(remanding and reassigning case for a hearing
in which the defendant could question the Assistant United States Attorney as to specific issues related to the defendant’s motion to dismiss for selective prosecution);
see also United States v. Berrios, 501 F.2d 1207, 1209, 1212 (2d Cir. 1974)
(finding no abuse of discretion in the district court’s order that the government turn over, for in camera review, a memorandum sent by the prosecutor to the U.S. Department of Justice recommending prosecution of the defendant).
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 Rule 48(a) motion
may lead to an evidentiary hearing. This is a case about
whether a district judge may even hold a hearing on a Rule 48(a) motion. While the selective-prosecution context is admittedly different than Rule 48(a), these cases nonetheless contradict the majority’s conclusion that holding a hearing, in and of itself, is a per se improper intrusion upon executive power. If the presumption of regularity does not prevent holding a hearing or independently examining prosecutorial discretion in the selective-prosecution context, there is no good reason why the presumption of regularity precludes a hearing on a motion to dismiss under Rule 48(a), disallowing any consideration whatsoever and forbidding the district court from expressing its views on the record with respect to its previous findings on materiality and guilt—all in the name of the separation of powers.
None of this is to say that a district court, in considering an unopposed Rule 48(a) motion, necessarily has carte blanche to do whatever it likes. One can certainly imagine circumstances in which a district court employed devices that would be sufficiently intrusive into the Executive’s purview as to violate the separation of powers and counsel in favor of immediate relief from the related orders.
See, e.g., Matter of Commodity Futures Trading Comm’n, 941 F.3d 869, 872, 874 (7th Cir. 2019)
(granting mandamus to vacate order of district court requiring executive personnel “to appear and reveal what lies behind their published words”);
Cheney, 542 U.S. at 387, 391 (indicating mandamus might be appropriate where district court approved discovery requests to the Executive that “ask[ed] for everything under the sky”). An appellate court faced with such conditions might conclude that “exceptional circumstances amounting to a judicial ‘usurpation of power’”
existed, such that the “extraordinary remedy” of mandamus
might be justified. Will v. United States, 389 U.S. 90, 95 (1967).
But that case is not before us. Not only has the District
Court not issued subpoenas or ordered discovery, it has given no indication of its intent to do so. Instead, it is the District Court’s intention to consider the motion in the ordinary course, with briefing and argument, and the majority now labels that a “judicial usurpation of power.” See id.
In so concluding, the majority has improperly siloed the different branches of government in an effort to prevent the possibility of intrusive inquiry that may or may not occur. To the extent that any of the majority’s fears of intrusive inquiries are well-founded, they could easily be resolved by providing instruction to the District Court as to the metes and bounds of a permissible Rule
48(a) hearing, with this panel (if it wished) retaining
jurisdiction in the event those bounds were overstepped. Cf. Berrios, 501 F.2d at 1213
(“Against the possibility that, upon remand, a difference might arise between the court and the government regarding the [extent to which matters of prosecutorial decisionmaking remain confidential], we retain jurisdiction for the purpose of review of the court’s ruling.”).
“[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 Rule 48(a)’s “leave of court” provision, the size and shape of a district court’s discretion in considering an unopposed Rule 48(a) motion, and the interplay between the Executive’s prosecutorial discretion and the Judiciary’s adjudicative power in these circumstances. Flynn has adequate means to attain the relief he seeks, and he has pointed to no
authority mandating his preferred outcome here. As such,
Flynn fails to carry his burden, and especially given that the District Court has yet to rule on the motion to dismiss, the writ should not issue to compel the District Court to grant the motion.
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 Rule 48(a) motion.
In neither respect has Flynn carried his burden to establish that his right to relief is “clear and indisputable.”
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”).
Federal Rule of Criminal Procedure 42 provides a procedure by which a district court may appoint an attorney to prosecute contempt, should the
government decline to do so. FED. R. CRIM. P. 42(a)(2).
This Rule reflects the fact that “it is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.”
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987).
“Moreover, a court has the power to conduct an independent investigation in order to determine whether it has been the victim of fraud.”
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). Far from establishing his clear and indisputable right to relief, neither Flynn, nor the majority in his stead, engages this precedent or forwards any legal arguments as to why a district court that may undeniably appoint a private attorney to prosecute contempt lacks the lesser power to appoint amicus to advise it regarding whether it ought to do so. Nor does the majority explain why directing the District Court to grant the motion to dismiss renders moot the District Court’s appointment of amicus to advise it on the legally separate issue of contempt.
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 Rule 48(a) motion. Flynn’s only legal argument on the topic is addressed to the District Court’s Local Rules, the ambiguity of which falls well short of bringing the issue beyond dispute.
(Notably, the majority’s solution to Flynn’s failure to carry his burden on this point is to ignore the issue altogether. The majority uses its passing conclusion that amicus participation is improper as a basis for ordering the separate relief of mandamus on the Rule 48(a) motion—and then, having done so, it declares the amicus issue moot.)
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 Rule 29 of the Federal Rules of Appellate Procedure” (citation omitted)).
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 Rule 48(a) motion to dismiss the
information with prejudice would be wholly inappropriate.
See, e.g., Flynt v. Weinberger, 762 F.2d 134, 135–36 (D.C. Cir. 1985) (per curiam); Murray v. Conseco, Inc., 467 F.3d 602, 605 (7th Cir. 2006).
What is indisputable is that adverse presentation of the relevant issues aids courts in their decision making—indeed, this is one of the foundational premises of our judicial system.
United States v. Nobles, 422 U.S. 225, 230 (1975).
Yet the majority gives this bedrock principle of our legal system no weight or consideration. As such, I must dissent from the majority’s functional ruling that the appointment of amicus violated a clear and indisputable
right held by Flynn.
* * *
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-cr232, 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 18 U.S.C. § 1001 because the FBI had no grounds for any “viable” investigation of Flynn at the time he made those statements, id.
at 13, even though that contention appears squarely belied by our precedent, see United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010)
(“We . . . hold[] a statement is material if it has a natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the agency to which it was addressed.”) (emphasis added);
United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (Scalia, J.)
(“A lie influencing the possibility that an investigation might commence stands in no better posture under § 1001 than a lie distorting an investigation already in progress.”).
This is no mere about-face; it is more akin to turning around an aircraft carrier.
The Government asserted to us that it has no duty to inform the court in a motion to dismiss pursuant to Rule 48(a) of all of its reasons for seeking dismissal. Oral Arg. Tr. 33.
Today the majority declares that nevertheless—in spite of the Government’s abrupt reversal on the facts and the law, and although the Government declares itself entitled not to be forthcoming with the District Court—these circumstances merit no further examination to determine whether there may be additional reasons for the prosecutor’s actions, and if so, if any such reasons are impermissible. Under the majority’s interpretation of Rule 48(a), so long as the defendant consents to the dismissal, “leave of court” is a dead letter.
The Government may be entitled to “leave of court” under
Rule 48(a) to dismiss the criminal information to which Flynn pled guilty, but that is not for us, as a Court of Appeals, to decide in the first instance. Rather, the District Court must be given a reasonable opportunity to consider and hold a hearing on the Government’s request to ensure that it is not clearly contrary to the public interest.
I therefore dissent.
So what will be will be...But I don't think theyr'e stupid enough to send it to the Supreme Court.
I think they will slow-walk this to eternity.
We’ll see how long it takes for Flynn to get a formal, final dismissal.
As to the latest Strzok memo, it is hard to imagine what should be redacted. First, it is now pretty old. Second, the entire basis of the Mueller investigation has been shown to be a Democrat fabrication, so no national security concern is apparent there. Possibly it is involved in the Durham investigation and perhaps that is the reason.
Hero’s and Villains !
Villain list:
Judge Emmet G. Sullivan
.. Beth A. Wilkinson (speaking)
.. Kosta S. Stojilkovic and
.. Rakesh Kilaru
Lawyers Defending American Democracy, Inc.
.. Eugene R. Fidell,
.. Stanley J. Marcus, and
.. Gershon M. Ratner
Watergate Prosecutors
.. Lawrence Robbins,
.. Alan E. Untereiner,
.. D. Hunter Smith, and
.. William W. Taylor III
Former Federal District Court Jurists
.. Daniel E. Jackson and
.. John W. Keker
New York City Bar Association
.. Gregory S. Smith
So what is known about these people?
Hero list:
For Flynn
.. Sidney Powell (speaking)
.. Molly McCann and
.. Jesse R. Binnall
United States of America (presumed friendlies)
.. Jeffrey B. Wall, Deputy Solicitor General, U.S.DOJ
.. Noel J. Francisco, Solicitor General,
.. Eric J. Feigin, Deputy Solicitor General,
.. Frederick Liu, Asst Solicitor Gen, Kenneth C. Kohl,
.. Acting Principal Assistant U.S. Attorney, and
.. Jocelyn Ballantine, Assistant U.S. Attorney.
States
.. David Yost, Attorney General, AG Ohio,
.. Benjamin M. Flowers, Solicitor General,
.. Steve Marshall, Attorney General, AG Alabama,
.. Kevin G. Clarkson, Attorney General, AG Alaska,
.. Leslie Rutledge, Attorney General, AG Arkansas,
.. Ashley Moody, Attorney General, AG Florida,
.. Christopher M. Carr, Attorney General, AG Georgia,
.. Jeff Landry, Attorney General, AG Louisiana,
.. Lynn Fitch, Attorney General, AG Mississippi,
.. Eric Schmitt, Attorney General, AG Missouri,
.. Timothy C. Fox, Attorney General, AG Montana,
.. Mike Hunter, Attorney General, AG Oklahoma,
.. Alan Wilson, Attorney General, AG South Carolina,
.. Ken Paxton, Attorney General, AG Texas,
.. Sean D. Reyes, Attorney General, AG Utah, and
.. Patrick Morrisey, Attorney General, AG West Virginia,
Former United States Attorney General Edwin Meese III
Conservative Legal Defense and Education Fund
.. William J. Olson,
.. Jeremiah L. Morgan,
.. Herbert W. Titus, and
.. Robert J. Olson
Eleven Members of the US House of Representatives
.. Jerome M. Marcus
John M. Reeves
.. John Reeves, pro se
Majority Leader Mitch McConnell and
Senators Tom Cotton,
Mike Braun,
Kevin Cramer,
Ted Cruz,
Charles E. Grassley, and Rick Scott
.. Michael H. McGinley
Federal Practitioners in support
Leslie McAdoo Gordon
Professor Eric Rasmusen
.. Eric B. Rasmusen, pro se
What do we know about the them?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.