In re Flynn

1. >Flynn: The Main Case.
2. Rule 48 Dismissal of Charges
3. Liveblogging “The Return of In re Flynn”
4. What I Wished Had Been Brought up en banc for In Re Flynn
5. Has Judge Sullivan Violated the Canons of Judicial Conduct?
6. Rasmusen motion for leave to file as amicus for In re Flynn.
7. Rasmusen amicus brief for In re Flynn.
8. Rasmusen pseudo-brief for the In re Flynn en banc rehearing.
9. Judge Sullivan, Satan, the Democratic Party, and Milton Friedman

#############################
Think about amicus briefs in criminal cases. The odd thing there is that unlike in a civil case, in a criminal case the public is already represented– by the government. The government does not need allies. Indeed, it will probably result in piling on when the defendant is disliked, as he usually will be. Amici helping the defendant would make sense, but not amici for the prosecution. And then we get cases like Flynn where the judge wants help for the prosecution because the government says the defendant is innocent even though he has a lot of political enemies.

#############################

In Flynn, Wilkins wanted to deny mandamus and say it was OK for Judge Sullivan to be suspicious of Justice Dept and hold a hearing. Here, he grants it, saying J. Lamberth can’t be suspicious of Hillary Clinton’s emails concealment and make her show up to a deposition. The Wilkins decision is at https://www.cadc.uscourts.gov/internet/opinions.nsf/F42F409E274D267D852585C40053AAA8/$file/20-5056-1856559.pdf

Lamberth had found State and Clinton had violated FOIA and acted in bad faith, and as everyone knows she was hiding her email. Sullivan just felt something was suspicious about Barr dropping charges but couldn’t say what exactly.

#################################################

Realclearpolitics on prosecutorial discreation examples:

n Chicago, for example, State’s Attorney Kim Foxx decided some time ago not to prosecute shoplifting under $1,000. Her decision simply ignores the Illinois law, which holds that thefts over $300 are felonies. (Thefts of under $300 still face significant fines and imprisonment, at least hypothetically. In practice, those penalties are seldom enforced.) Remember, Foxx is an executive branch official, charged with enforcing the law. Instead, she effectively repeals those she doesn’t like with a wave of her magic wand. That’s troubling in its own right, aside from the green light it gives criminals to keep up the good work. She did the same thing when she declined to prosecute many of those who rioted, looted, and defaced property after Floyd’s death.

In St. Louis, Gardner did nothing about the mob that broke into a gated community, putting frightened homeowners on edge. Instead, she charged a husband and wife who stood outside their home, guarding it with firearms.

#################################################

The Unitary Judiciary. This doesn’t seem to be a standard phrase, unlike “The Unitary Executive”. The idea of the unitary executive is that in the US federal government, the President is what the Constitution sets up as the executive branch, and people like the Attorney-General, the U.S. Attorneys, and the line prosecutors from the civil service are his agents, whom he can fire at will as agents since they are not entitled to make policy or carry out specific tasks except as a matter of employment contract. A line prosecutor cannot go against the President and file criminal charges against John Doe on his own, even though civil service rules may happen to say that the President has to keep him on the payroll even if he refuses to obey orders. I cannot testify as an economic expert witness in an antitrust case if the President says no, although I may be entitled to receive the consulting fees I was promised for agreeing to work on the case.

The idea of the unitary judiciary is that on the federal level the U.S. Supreme Court is what the Constitution sets up as the judicial branch, and people like the circuit court of appeals judges and the district court trial judges are agents of the Supreme Court. The Supreme Court can “fire” them from cases if it likes, even though it can’t fire them from their jobs as judges.

An alternative idea would be that the federal judiciary is plural, so each judge derives power independently from the Constitution and the legislation (The Judiciary Acts) that set up the court system. Under that view, lower-court judges have no ethical obligation to follow the Supreme Court in letter or spirit, and, in fact, would have an ethical obligation to fight the Supreme Court if they thought it was wrong on a particular issue. Moreover, the Supreme Court would be morally wrong if it tried, for example, to remove a judge from a case just because he said he intended to flout Supreme Court precedent.

On a quick look, I see two interesting items that some up in Google Scholar when I search “unitary judiciary” (being careful to search using those quotes– should I have written,”‘”unitary executive”‘”?):

Steven G. Calabresi and Kevin H. Rhodes
The Structural Constitution: Unitary Executive, Plural Judiciary

Vermeule, Adrian (2005) “The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division New Perspectives on Statutory Interpretation,” Journal of Contemporary Legal Issues, 14: 549-584 (2004-2005).

The other articles that come up on the first three pages seem to be about “unitary executive” in the sense of one supreme court for different regions (Judicial Colonialism Today: The French Overseas Courts , a 2020 poli sci paper), or not having an overlapping federal/state system like the US does, or not having different courts for different areas of law as Germany does (and maybe other countries for top questions in con law versus everything else). Nobody seems to use the phrase in the same way as they do “unitary executive”, to mean that if a top official delegates authority to a lower official he loses possession of that authority. That includes Calabresi & Rhodes, who really aren’t interested in the judiciary at all, and Vermeule, who is interested in interpretation, not discipline.

#################################################

… When it comes to an extraordinary writ of mandamus issued to a district judge, there are precedents when such writs were appealed by district judges, including at least one case when the Supreme Court granted certiorari to such a petition: La Buy v. Howes Leather Co., Inc.

###############################################

For a draft of what would have been my revised amicus brief for In re Flynn en banc and might become an article, see
http://rasmusen.org/papers/enbanc.docx or if you prefer http://rasmusen.org/papers/enbanc.pdf:
how to discipline wayward judges and prosecutors, Rules civ11, ap35, crim48,mandamus, en banc.

###############################################

OLD.
I liveblogged the oral argument of In re Flynn today, June 12. I did it on Twitter and will now transfer it here. Should I have done it here instead and transferred to Twitter? I didn’t know in advnce I’d be doing it, but I should thimnk about it for next time. A separate blog post on method, I guess. Here, I will not clean things up much– first priority is just to cut and paste the tweets. I’ll keep the twitter length snippets, to preserve the effect. (What would Plato’s Republic have looked like if it were written in Twitter instead of dialog?)

Note that this is in the same style as the economics seminar notes I am known for emailing the presenters: disjointed, a mix of my own ideas with what the presenter and participants say, not clearly noted who is saying what, even if noted I am paraphrasing or interpreting, do not trust as historic record but useful for ideas, typos not fixed, don’t hold me to what I write because I didn’t think twice about it— speed matters more than quality. Here, I might insert some links eventually that I didn’t look up during the event itself. And add some formatting.

Note that my own amicus brief is at http://www.rasmusen.org/special/mandamus/Flynn-briefs/rasmusen-amicus-brief-itself.pdf

(June 22: I’m going to put in some photos too.)

1h
I think I’ll liveblog the Flynn oral argument. It will be disjointed, I expect, but possibly interesting.
.
1h
Powell. Starts with separation of powers. The government has quit— no case or controversy.
Wilkins. Good morning. Polite. Rinaldi. DC rule 48 denial. Indepnent evaluation duty?
Powell: No evidence. No prima facie case, I’d put it.
.
1h
Powell: Nice summary of the Virgin Islands 3rd circuit case—which she calls the Vrigin Islans case, the memorabl ename (smart!)
.
1h
Rao: How about amicus for contempt charge? OK or not?
Powell: No. Contempt for perjury is wrong here.
Rao: That’s the merits. Howa bout an amicus?
Powell: evasive.
.
1h
Powell should have said: prosecutor for contempt OK, amicus to advise on it, no.
.
1h
Rao: Can the appeals court reach teh contempt issue? Is there a way we can rule on it? Please? Help us out… [an example of my interpretatin— of course, she didn’t say those last 4 words.]
.
1h
Wilkins: Can the jduge look at the record before dmissing?
Powell: YES. She finally gets it. The jduge can look for prima facie case against dismissall and oppose it, just can’t hld hearings, read Washinton Post op-eds, hire counsel, hire detectives, hold hearings….
.
1h
Wilkins: Suppose Flynn opposed dismissal. Amicus appointment OK?
Powell: At least there’s a case or controversy.
.
1h
Rao: But aren’t you saying there’s a local rule against amici, even then?
Powell: Yes, that’s one of our arguments. (Raos is trying to help her out.)
.
1h
Wall to Wilkins: Fokker wasn’t about 48, but about agreements, sure. But a fortiori if agreemetns aren’t the court’s business, prosecution decisions aren’t. good.
.
1h
Wilkins: Again, back tot he “order under review”. COunsel need to keep focussed on that.
Wall: we’re not asking about a particular order here, but about the lack of dismissal.
Hmm..
.
1h
Switching judges isn’t about the order. No amici isn’t either– the order was just a sign that Judge Sullivan is starting to do crazy things and this needs to be nipped in the bud. What matters is clarity of misconduct, likelihood it will continue, not size of immediate badness.
.
1h
Rao: We don’t like vague separation of powers arguments. Zoom in for us. What precisely is the problem?
Wall: He’s vamping while he thinks, being vague just like she says she hates…
.
1h
Wall: Now he’s got things figured. The harm is that Justice and Flynn have to expend vast resources in a frivolous context. That’s not a sep of powers point, or is it— I guess it its– prosecutorial resources being allocated to this case, not to real ones.
.
1h
Wall: I think Sullivan agrees that if there was no guilty plea, he’d lose and would have to dismiss, under Fokker. I have four reasons why there being a guilty plea dosn’t matter.
.
1h
I missed three of them. The fourth is that Fokker itself is about post-plea.
.
1h
Wilkins: Is it correct that Justice doesn’t have to share all its info with judge, all its reasons for dismissal? (Ruling hint!)
Wall. Yes, but even if ti did, doesn’t matter.
.
1h
Wilkins: suppose policeman pleads guilty. Govt says they foudn new Brady info and mvoe to dismiss. victim is black, def is white, govt. says it doesn’t think jury will believe,unjust but reality. But govt. dopesnt] want to say that in its motion. Can it dismiss without it?
.
1h
The constittional grounds test is a red herring. It doesn’t matter. What matters is whether there is clear evidence in the record and maybe a quick hearing or motion that overcomes the presumption of regularity, tthe presumption taht the govt isn’t routinely corrupt.
.
1h
Henderson: manadmus is drastic. I see no cases of mandamus issuing where the trial judge didn’t act with an order that can be reviewed. SUllivan did tow things:
1. Appoint amicus
2. set July hearing.
What;s so bad about that? (Good question, well stated– why at 10:29am with only a minute left for him?)
.
1h
Wall: vamping again while he thinks… At least issue a modified form of mandamus. He is talking about a sort of declaratory judgement I think. reasonable, actually. Panel could refuse mandamus, with opinion saying SUllivan had better behave.
.
1h
very tempting for panel to do that, so as not to have to humiliate Sullivan so much. Wall should say that they can’t trust S. Presmptionof regularity has been overcome in his case, unlike the Justice dept. Flynn presumption, where there’s no evdience of misconduct.
.
57m
WIlkins: good point— Justice didn’t petition for mandamus, FLynn ddi.
Wall: Good response. Justice didn’t think of it in time and didn’t want to slow down fLynn’s petition. Justice decided just join later.We could file our own short “Me too” petition as formality if you like.
·
54m
More on that: A court can sua sponte use arguments not made by the parties. IT needs a case or controversy,s o it needs at least one complainant, but it truly is irrelevant that Justice didn’t put its name on the petition.
·
51m
Rao: Fall back position partial relief “concerns” me. “That seems like a lot of law to be making int he mandamus posture.”
Wall: The clean way to do this is to grant the Rule 48 motion– you’re right.
Rao making good opint, declar.judg. can be abused.
·
49m
Henderson: How about “no adequate remedy at law”? WHy go to “equity”? WHy not wait till July 16?
Wall: SUllivan has been vague about what he’s doing.
Me: Clownshow will go on, court, Justice, Flynn, even SUllivan are hurt. And we don’t know July16 is the end.
·
48m
Wall: In Fokker, denial of mandamus would have had much milder harm than here. good point. If ever there’s harm, it;s here.
·
46m
Wilkinson: mandamus is too strong.
She doesnt’ want to talk about the dismissal merits. She wants to talk procedure and wants to let judges get input when they need it— self-interested appeal to appeals judges.
·
44m
Rao: question in first minute. What about case or controversy?
Rao: What happens if Sullivan denies motion? Do you go on to sentencing?
Wilk: We’d get another mandamus motion. So let’s wait for that to happen. (All my client wants is his clown show for the newspapers!)
.
Wilk should say sometimes unopposed motions are still contrary to justice. That’s a prper use of volntary amici — to say things for th court that the parties don’t wnat to say. As in my 5th circuit tax amicus, where IRS didn’t want to make the correct argument, so I did.[Marshall v. Commissioner, http://ssrn.com/abstract=2261914]
·
32m
In that case, I was on th IRS’s side, but thought their argument unjust and wrong and overreaching. They wanted that argument to use in other cases to oppress people. The IRS was right to win this case, but for different and simpler reasons havign to do with PDV and economics. [Funny story: the taxpayer’s lawyer contacted me to see if I’d write an amicus for him (some minority organizations wrote amici, presumably on request for “we’re good guys” purposes). That’s because I was known for being very blunt about IRS misbehavior— see “Can the Treasury Exempt Companies It Owns from Taxes? The $45 Billion General Motors Loss Carryforward Rule” (with J. Mark Ramseyer), The Cato Papers on Public Policy, Vol. I, Article 1, pp. 1-54 (2011) edited by Jeffrey Miron, http://www.cato.org/store/books/cato-papers-public-policy-paperback. I looked at the case, and decided that not only wouldn’t I be an amicus in favor of taxpayer,but that I ought to be an amicus in favor of IRS, because the IRS was not making its strongest and best argument, probably for strategic reasons, and it woudl make a good teaching material for my business classes, on present discounted value and the meaning of “value”.]
·
31m
I got sleepy and self-centered and missed a bunch of stuff.
·
30m
Wilk: Now she seems to be saying that if a jury had ruled, the govt. couldn’t dismiss, even if it came up with new evidence, unless it reconvened the jury and showed it the new evidence. sounds crzy, but maybe I’m confused.
·
29m
Wlik: “Irrepearable harm”. It goes on in district court every day of the week that prosecutors have to provide info that may turn out to be unnecessary.
·
27m
Wilk: Justice Dept. didn’t oppose Judge Sullivan in hsi courtroom on these points, so they shouldn’t do so here– go back to district court and object. I guess that’s an invitation to J. to do so if they lose on mandamus. then, losing the objection, they can do mandamus again.
·
26m
Wilk: Finally brings up reasont o deny dismissal. bribery– n ot constitinal, so Wall was wrong ont hat (true). And judge might uncover this in a hearing, by questinoing.
(WHy now is she being repsonsive, when she wasn’t with Rao? Did her co-counsel pass her a note?)
·
24m
Me: judge shoudl deny dismissal if clear and obvious corruption. It should force the prosecution to hold a triala nd show the public clearly how it’s throwing the case by bad cross-examination, insulting the jury,e tc.
·
22m
Powell: goes for the jugular. first judge recused mysteriously under suspeicious circumstance. (SHould DC Circuit have held public hearings and called for amici input and whistleblowers to decide whether he was recusing because he’d been behaving unlawfully and got caught?)
.
21m
They are allowing 2 minute final statemetns, unsuual apellate move but not too strnage, adn quite proper.
.
19m
Wall: Rule 48. Sullivan has retreated from taht to the mandamus extraordinary and procedrual nitpickery, seeing he’s losing. Panel, think about what will happen if you deny mandamus— a clownshow. So you really do need to act now, or we’ll see you again and again.
·
18m
Henderson qustion in final staemetn, to Wall!
If there was bad faith, it was in the original Flynn prosecution. sHouldnt’ we allow Article II (prosuctors?) to self-correct?
I guess that’s an invite to Wall to say more on that point that might ehlp the court.

17m
Henderson was right, tho shoudl ahve come earlier maybe. Its a huge deal that we want to encourage prosecutors to admit abuse, not make it tough for them.

7m
It looks to me as if the panel will need to digest a lot of this and rewrite, so I don’t think there will be an opinion today. Oral argument was not just professional courtesy to Judge Sullivan; they had real questions. SO maybe a per curiam order today, but no opinion.

4m
IF there’s a per curiam today, the opinion might take a month,s ince they want to be careful. If tehre isn’t, I predict they’ll rule around next Wednesday. BIg question: Do I rush writing up the artclet eh Federalist is interested in my writing? Vs. Uhlig, UCLA Klein, covid19.

The following got mixed up in the cut and paste:

Wall: If the proecutor just wants to dimiss because teh deft. is his friend, and admits it, the judge still has to dismiss. JUst as the judge can’t force him toprosetue bfforet h case even starts.

###############################################