Another Take on Judge Sullivan and Michael Flynn's Petition for a Writ of Mandamus

Professor Peter Margulies argues the writ should be denied, for the most part, at least for now.

|The Volokh Conspiracy |

Former judge Michael Luttig wrote an op-ed fairly critical of Judge Emmet Sullivan's handling of the Michael Flynn case and the Justice Department's request to drop the charges.  Former acting Attorney General Stuart Gerson defended Judge Sullivan. Another perspective on this case worth highlighting comes from Professor Peter Margulies.

In an essay at Jurist, Margulies argues that the D.C. Circuit should deny Flynn's petition for a writ of mandamus, with the caveat that he thinks the court should proscribe the role of the court-appointed amicus opposing dismissal of the case.

The D.C. Circuit should grant the motion in limited part by constraining the amicus's role. That would involve holding Judge Gleeson to analysis of the legal and factual issues raised by the government's motion to dismiss on its face and barring Judge Gleeson from either additional inquiry into DOJ's motives or the second facet of his charge from Judge Sullivan: determining whether contempt of court charges should be filed against Flynn.

As for the larger question of whether the Justice Department should be allowed to dismiss the charges against Flynn, Margulies highlights the weakness of the Department's stated rationale for dismissing the charges. At the same time, Margulies suggests that if the Justice Department were to forthrightly claim that it wanted to dismiss the charges as a matter of prosecutorial discretion, it would be a difficult motion to deny.

the motion to dismiss ignores the entire context and premise of the Russia probe. That probe started because the combination of clear Russian campaign interference and "numerous" contacts between Russia and Trump campaign figures created a reasonable basis for investigating whether the contacts related to the election interference in a manner that violated U.S. law. Ignoring this predicate, DOJ's motion to dismiss instead analyzes the FBI's investigation by assuming facts that Special Counsel Mueller only stated after lengthy and careful investigation: that insufficient evidence existed to warrant criminal prosecution of Flynn or any other Trump campaign figure for collaboration in Russian election interference. But that analysis adopts the wrong perspective for assessing the FBI agents' belief in January, 2017, which must address what the agents knew (and didn't know) at the time, not some later date once their investigation was complete. In this sense, DOJ's conception of materiality puts the cart before the horse.

Viewed from the standpoint of law enforcement in January, 2017, continuing the Flynn investigation was material to the FBI's vital counterintelligence function. The FBI and other agencies have a counterintelligence mission that augments the FBI's law enforcement task. As part of that mission, the FBI is always on the lookout for unauthorized foreign interventions on U.S. sovereign prerogatives, including the activities of U.S. officials and the conduct of the U.S. political system. Continuing the Flynn investigation in light of his contacts with Kislyak and learning whether Flynn would level with the FBI about those contacts was entirely consistent with this counterintelligence mission.

The weakness of DOJ's legal arguments against Flynn's guilt actually masks credible policy arguments that DOJ could have stressed. For example, suppose that DOJ chose to abandon its narrow definition of materiality. Instead, DOJ might argue straightforwardly that, with the benefit of Mueller's full investigation, it had become clear that holding Flynn to his plea would no longer serve counterintelligence goals.

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  1. Every few months everyone needs to remind themselves just how awful Bush Republicans are and that George P Bush is a rising star in the Republican Party and Liz Cheney is in a leadership position. So the vile Bush loyalists that Trump foolishly surrounded himself with attempted a coup of a duly elected president and then they lost interest in the coup once Trump outsourced judicial appointments to McGahn/McConnell…unfortunately Flynn got caught in the middle of this coup.

    1. OK, you’ve reminded the few people who got past your first few words. You can crawl back in your hole now.

  2. “DOJ’s motion to dismiss instead analyzes the FBI’s investigation by assuming facts that Special Counsel Mueller only stated after lengthy and careful investigation: ”

    He may have waited until the last possible moment to state it, but evidence shows that he knew it almost immediately.

    1. I think the key event was Trump ordering through travel ban and forcing Yates to resign. I think Comey took advantage of the chaos at the DOJ and unfortunately McGahn must have still had some respect for Comey because they are both Bush loyalists. I will never understand why Trump fired Flynn and then later libeled Flynn in a tweet…Flynn deserved better.

      1. Perhaps at that time Trump trusted the word of Comey. A mistake, in hindsight, but one tough to blame Trump for.

        1. You mean Trump trusted the word of Pence…so Pence said Flynn lied to him.

    2. Mueller may only have learned it when he was appointed but Barr has stated on the record that the whole Trump-Russia collusion case had collapsed by January 2017.

      I assume he bases this on Steele’s Primary Sub Source refuting the validity of everything Steele had attributed to him. I don’t believe we’ve been given a date for this interview, but since the OIG says it was “shortly after” the FBI filed for renewal of the Carter Page FISA (which was 12 January 2017) it’s likely that the interview was before Flynn’s interview on 24 January.

      In any event, my recollection is that one brief to the Appeal Court (the DoJ’s I think) references some precedent that “the weakness of the DoJ’s legal arguments” – if weak they are – are irrelevant. The Judge doesn’t get to argue with the DoJ about whether its view of law or facts is correct, as part of their decision to prosecute.

      1. Trump appointee Rosenstein signed a Page FISA application and McGahn appears to have been the point man on Flynn when Trump fired him.

      2. Barr has stated on the record

        Barr says a lot of stuff. I wouldn’t take him at his word.

        1. Yeah, fortunately we have testimony from various sources backing him up: The investigation was being shutdown for lack of finding anything actionable, then the order came down from the top to delay shutting it down just long enough for an irregular interview of Flynn. And we have the handwritten note showing that the interview was assumed to be intended to manufacture a perjury case against him.

          Democrats seem rather determined to deny the very existence of all this evidence that’s been coming out recently.

          1. This is really the biggest issue, one that’s quite frightening.

            Is Trump a “good” president? Not particularly.

            But Democrats and their supporters appear to have been willing to bend the law and procedures to the breaking point in order to “stop” or “prevent” Trump. And that is actually scary. Very, very scary.

            1. Lol, no. FBI was headed by a Republican and the FBI knew once Trump was elected one of his DOJ appointees would be scrutinizing their work.

              1. He did say, “and their supporters”. There are plenty of Republicans in D.C. who actually don’t mind the Democrats being in charge, maybe even prefer it to Republicans who aren’t themselves.

  3. I guess it must be something in the water that lawyers drink when they become judges, but I don’t understand the logic of forcing someone to prosecute a case they don’t want to. I cannot think of a better way to ensure an intentionally poor prosecution.

    1. That is true as a general matter, but it seems to have exceptionally little force unde the circumstances of this case, since the defendant has already been convicted.

      1. He’s not really “convicted” until sentencing and appeals are done.

        1. That’s not the law.

          1. And yet, there’s an entire section of criminal procedure about withdrawing guilty pleas before sentencing. Here’s a review.

            https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7096&context=jclc#:~:text=If%20a%20motion%20to%20withdraw,%C2%A7%202255.&text=States%20v.,-Muriel%2C%20111%20F

            1. There are a lot of sections of the law about a lot things. None of that changes the fact that the government’s active prosecution of the case is no longer procedurally required.

        2. No, he was convicted when the district court judge accepted his guilty plea in 2017.

  4. “…Instead, DOJ might argue straightforwardly that, with the benefit of Mueller’s full investigation, it had become clear that holding Flynn to his plea would no longer serve counterintelligence goals.”

    They can argue this, but not with a straight face. I think the counter-argument is, “Hey folks, don’t lie to the FBI about material facts. And when in doubt’, STILL DON’T LIE. And, by the way–even though it is not a federal crime–DON’T LIE TO THE VICE PRESIDENT.

    Seems like holding people at the highest level of political power to this minimal standard absolutely serves counterintelligence goals. And, in giving Flynn a free pass, your proposed principle (or lack thereof) would do more harm to future counterintelligence investigations than just about anything else I can think of.

    1. So you’re intentionally ignoring all the uncovered brady evidence such as the FBI not even thinking he lied to them? You’re a great lawyer. Just ignore the facts that are inconvenient. Good job sir.

      1. Can you identify the “uncovered Brady evidence” you have in mind? DOJ conspicuously declined to allude to any in its motion to dismiss.

        1. That’s my chief complaint: The DOJ’s real case for dismissal is that the whole case was a matter of prosecutorial misconduct. But they don’t want to go there.

          1. Do you blame them for not wanting to go there?

            1. Not quite sure how sarcastroic you’re being there.

              But, yes. If Barr is motivated by an institutional loyalty to the DoJ, he’s dreaming if he thinks that covering up DoJ abuse is the way to restore public faith in it. Not only is that naive, it’s dishonest. It’s still a cover up.

              It’s analogous to Roberts and his desire to keep the Supreme Court out of politics. Which he does by making a political decision to side with the liberals if he thinks it would cause a political fuss to do otherwise.

              1. I don’t think it’s a matter of covering up DOJ abuse to restore public faith. I think it’s a matter of avoiding acknowledging DOJ abuse in order to stave off a DOJ rebellion until they’re better positioned to fight it off.

                There are still a lot of hold-overs in the DOJ whose loyalty is to the Democratic party, not the present administration or even the impartial pursuit of justice, and who if pushed hard enough could cause some real trouble right before the election; Allegations of criminality don’t have to pan out in the end to throw an election, and the DOJ has a history of taking advantage of that to end political careers.

                1. What form do you expect this DoJ rebellion to take ?

                  Molotov cocktails ? Or resignations ? It seems to me that either would be a short route to cleaning the stables.

                  1. One or more of the prosecutors announcing just before the election that they’re prepared to file charges for corruption against figures in the administration, perhaps. Worked for getting rid of Ted Stevens, after all, and it doesn’t actually require that the charges be capable of being defended in court.

                  2. Depends how obvious it is. There are a lot of things people can do that sabotage the mission of the department without overtly being firable.

                    E-mails get accidentally skipped, paperwork gets lost, items get leaked, anonymous accusations get filed, etc.

    2. I mean you couldn’t even read the call transcript and see how it completely mismatched the Mueller contention. Mueller flatly states that Flynn asked Russia to not escalate due to sanctions. The call transcript was clear Flynn was only asking for non escalation on the US deporting Russian citizens.

      But you are such a great lawyer you recognized that.

      1. Do you think McGahn failed to conduct due diligence with respect to Flynn??

        1. McGahn relied on what McCabe told him, so yes.

    3. McCabe lied to the FBI, repeatedly and about material matters. So far he has skated. Does your call for “holding people at the highest level of political power to this minimal standard…” include McCabe? Maybe I’ve missed your call for justice wrt Mr. McCabe.

  5. “Viewed from the standpoint of law enforcement in January, 2017, continuing the Flynn investigation was material to the FBI’s vital counterintelligence function.”

    I don’t understand this. They whole reason the DOJ moved for dismissal was new evidence that showed this was NOT the case: the FBI decided to close the case on Flynn, but hadn’t gotten around to it when he was recorded talking to the Russian ambassador in a fairly tame conversation. Then they decided to set up a perjury trap. None of this seems to serve a counterintelligence function.

    Additionally, the DOJ withheld all those documents until now, seemingly violating Brady.

    1. And the Hillary email investigation was baseless in light of every Trump State official using WhatsApp and furthermore it wasn’t Comey’s job to comment on the investigation. Plus McCabe leaked #fakenews that Hillary’s indictment was likely. So Trump wouldn’t even be president without Dumb and Dumber Comey and McCabe so just issue the pardons and put all of this in the rear view mirror as far as I’m concerned.

      1. STILL DON’T LIE. And, by the way–even though it is not a federal crime–DON’T LIE TO THE VICE PRESIDENT.

        Could you flesh that out? Exactly what lie, did Flynn tell Pence? The call transcript is not showing anything.

        1. Ask Trump, Trump fired Flynn for lying to Pence and the FBI.

        2. Yeah. I don’t know what lies Flynn told the VP. It’s just was Pence and Trump have said. (And multiple sources who have stated how upset Pence was that Flynn had lied to him.) Of course it’s possible that Pence was lying about being lied to. And Trump was lying about Flynn lying/not lying to Pence.

          I think that latter is the best argument. I mean, after almost 20,000 (!!!??!!!) lies, who cares if Trump lied one extra time. Maybe Trump could fall on his sword and say this. Nah . . . can you imagine Trump having the character to sacrifice one iota in order to save another person? Not me, either.

          1. It’s even possible at this point that both Pence and Trump had been lied to by the FBI about Flynn lying to them, and foolishly believed the DOJ.

        3. With the release of the transcript it looks like the FBI lied about the conversation Flynn had. We know the FBI goal was to eliminate Flynn from the position. Evidence is substantial the FBI had no legal, or counter Intel basis for an investigation. No findings as of January 4, 2017 to sustain any investigation. The end of December phone contantacts show no conversations to sustain an investigation. A planned, intentional violation of DoJ/FBI protocols in doing an interview with Flynn. Pence is so upset about being lied to, he said he would welcome Flynn back into the Trump administration. What we have learned so far, lies were generated by the FBI etal. Not President Trump.

        4. Very telling, nobody has a clue as to the “lie”, predicating this prosecution.

          1. Not, that’s not really a mystery.

            The problem here is that the FBI agents interviewing him thought it wasn’t a lie, just a failure of memory. It was only afterwards that Strzok, who wasn’t in on the interview, decided to construe it to be a lie.

            It’s always a problem when you claim not to remember something, and the FBI takes the position that, no, you obviously have perfect recall.

    2. Exactly.

      > But that analysis adopts the wrong perspective for assessing the FBI agents’ belief in January, 2017, which must address what the agents knew (and didn’t know) at the time, not some later date once their investigation was complete.

      The FBI had already investigated Flynn for four months and found “no derogatory information.” The FBI already had the transcripts of Flynn’s recorded conversation with Kislyak, and it was a big nothing-burger as regards counterintelligence. What could Flynn possibly say during the interview that would add to what the FBI already knew? That’s why the notes discussed a goal other than collecting counterintelligence. Judge Luttig’s analysis makes no sense.

      To me, the only reason to keep this case open is to bring to light all the bullshit games played in Federal court. The unholy alliance between prosecutors, ex-prosecutors turned defense attorneys, and a system that requires defendants to make a colloquy before pleading guilty on a coerced plea deal makes a mockery of the rights supposedly protected by the Constitution.

      1. Nope, the issue is Bush loyalists. Flynn’s first lawyers were from a Bush Republican law firm that respected fellow Bush loyalists Mueller and Comey. You people will be sending your kid’s college money to George P Bush in a few years so he can save the country from some evil Democrat.

        1. Is the argument here that establishment Repubs are in bed with the same assgoles as establishment Dems? Cause yeah, it’s true, but about as relevant in this case as Jeffery Epstien’s penultimate bowel movement.

  6. Professor Adler you reported on Marguile’s opinion but you neglected to tell us what you thought of it.

  7. Gutting, Gerson, Marguilies – what riches ! That would be three chaps who learnedly think the writ of mandamus should be :

    (a) denied (Luttig)
    (b) denied (Gerson)
    (c) denied (Marguilies)

    Adler offers us the gamut of legal opinion from A to B.

  8. Why would you publish an except of something and start with a clear falsehood???

    “The motion to dismiss ignores the entire context and premise of the Russia probe. That probe started because the combination of clear Russian campaign interference and “numerous” contacts between Russia and Trump campaign figures created a reasonable basis for investigating whether the contacts related to the election interference in a manner that violated U.S. law. ”

    This is just false. At best, XFire Hurricane had a pretextual basis for being launched, never a reasonable basis. And there was no reasonable basis for the FISA warrants, nor a reasonable basis for not closing XFire by Early November 2016. XFire Razor, the sub-investigation into Flynn lacks even a pretextual basis, and was improper. It was also supposed to be closed a month before the interview in question, which is still several months after any reasonable agent would have closed the investigation.

    1. Trump had no respect for Comey upon inauguration…and yet Trump fired Flynn because of an investigation conducted by Comey. Furthermore Trump’s appointee Rosenstein appointed Mueller. NEWSFLASH—Trump is incompetent.

      1. Only in the sense that he wasn’t yet aware of what a hive of scum and villainy DC actually was. He’d assumed the DOJ was run by basically honest people who might have partisan biases, not partisan hacks who would do anything in their power to advance their aims.

  9. It’s time for the DC circuit court to understand what is clear, and kick Sullivan off the case, reassigning it to another judge.

    It’s pretty clear to that Sullivan is biased, if only by his extreme request to investigate prosecuting Flynn on new charges.

    1. That’s been clear for some time now; Every time the defense exposed some misbehavior on the part of the prosecution, Sullivan would end up raging at the defense.

  10. This entire affair stinks to the high heavens. Frankly, there is grist in the mill for everyone. General Flynn has lost his home, spent millions in his defense. And there is a real question of whether this was a rightful prosecution in the first place. From what I have read, that prosecutor [Brandon Van Grack] has a lot of ‘splaining to do.

    Personally, I think this process has to play out. I don’t know Judge Sullivan. From what I have read, he presents a mixed bag. He gets to make his case to the DC circuit. I think a jurist of 30 years tenure gets that benefit of the doubt (meaning, make his case). It will become evident during argument whether or not this is politically motivated or not. Judges are pretty good at detecting BS.

    I’d be interested in knowing the identities of the DC circuit judges who will hear argument, and who appointed them.

  11. Improper motive seems to be one of the few grounds a Judge has for denying a motion to dismiss. I don’t think it makes sense to limit the entire analysis to the stated rationale. If that were the case, it means prosecutors just have to lie and everything will be OK.

    That being said, the appellate court absolutely should admonish the court to stick to the issue of the case and not attempt to explore more broadly allegations of corruption or collusion in any broader context. Combined with allowing the parties to re-raise the issues should things change in the future, the trial court will hopefully keep things appropriately circumscribed.

  12. Margulies highlights the weakness of the Department’s stated rationale for dismissing the charges.

    The DoJ stated rationale, no basis for investigation, and any factual error in Flynns answers lack any materiality. The old DoJ prosecuters were playing in the “show me the man and I will find you the crime” method of justice.

  13. Watching the ‘lock her up’ chanters engage in silly gymnastics on behalf of Gen. Flynn is fine entertainment.

    Watching the purge at the Department of Justice that will begin in January will be better.

    1. Oh, you mean when POTUS Trump is re-elected? Could not agree more. The administrative state needs a thorough housecleaning. 🙂

  14. Here’s another real issue that’s not discussed

    1. The court ordered all Brady material turned over.
    2. The prosecutors DIDN’T TURN OVER all Brady material.
    3. Then Flynn pleaded guilty.

    Flynn pleaded guilty under false pretenses from the government. If for no other reason that that, he should be allowed to withdraw his guilty plea

    1. And that Brady material seems to be so embarrassing the government wants to drop the case entirely rather than expose it in court.

    2. Can you identify the “Brady material” you have in mind? DOJ conspicuously declined to allude to any in its motion to dismiss.

  15. It looks like Peter Margulies’ preferred option, for the D.C. Circuit to constrain the amicus’s role, isn’t going to happen, because John Gleeson (the amicus) has already filed his brief.

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