The Volokh Conspiracy
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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.
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.
