Wednesday’s decision by the D.C. Circuit granting General Mike Flynn’s petition for mandamus is a dangerous precedent. In directing US District Court Judge Emmet Sullivan to grant DOJ’s motion to dismiss the false statement charges against Flynn, the court disrupted orderly court proceedings. While I believe DOJ would have ultimately prevailed in due course, the DC Circuit’s wielding of mandamus as a sword was a needless overreach.

The majority opinion was written by Trump appointee Judge Neomi Rao and joined by George H.W. Bush appointee Judge Karen LeCraft Henderson; Judge Robert L. Wilkins, an Obama appointee, dissented. Under the court’s ruling, Judge Sullivan must grant DOJ’s motion to dismiss under Rule 48(a) of the Federal Rules of Criminal Procedure. The court denied Flynn’s request to replace Judge Sullivan, but that denial has little meaning since the court mandated the result that Judge Sullivan must reach. In addition, the court vacated Judge Sullivan’s order appointing an amicus curiae, former U.S. District Court Judge John Gleeson.

DOJ’s Motion to Dismiss entailed an about-face from its previous stance on the law and facts in the case, which had already produced a guilty plea by Flynn to making false statements to the FBI about talks with Russian ambassador Sergey Kislyak during the 2016 presidential transition. The government did suggest in its motion that several of Flynn’s statements were unfalsifiable and therefore did not merit prosecution. That rubric might include Flynn’s statement to the FBI that it was “possible” that Kislyak had called him about the Russian decision not to respond to sanctions imposed by President Obama in the wake of Russian interference in the 2016 campaign.

But not all of Flynn’s statements were unfalsifiable in this way. For example, Flynn categorically denied asking Kislyak to delay a UN vote on Israeli settlements or vote against the measure, even though Flynn had done just that to his own guilty plea and the Mueller Report. Moreover, DOJ’s motion relied on a restrictive view of what constitutes a “material” false statement that would shrink materiality to the vanishing point. For example, DOJ sloughed off Flynn’s lies to Vice President Pence and then-Press Secretary Sean Spicer about the Kislyak calls. Yet, viewed against the backdrop of Russian election interference, surely the FBI had a valid counterintelligence purpose in ascertaining whether Flynn would be truthful with federal agents, even if he had deceived Pence and Spicer.

The parched view of materiality that DOJ espoused would rule out any such inquiries, thus hindering the FBI’s counterintelligence function. Although the mandamus majority regarded DOJ’s account of materiality as irrelevant to the merits on mandamus, Judge Wilkins’ dissent is correct that the DC Circuit in United States v. Moore expressly rejected DOJ’s view. That wide gap between DOJ’s stance and governing law surely warrants the review that the majority short-circuited (see my earlier post).

The majority’s view that mandamus was warranted flowed from its view that Rule 48(a) contemplated virtually absolute deference to the government. While Rule 48(a) requires that DOJ seek “leave of court” for a motion to dismiss, the majority viewed the court’s power to deny a motion as restricted to cases of egregious misconduct, such as bribery of the DOJ official. In cases not involving such a manifest breach of duty, Judge Rao wrote that the district court had to grant the government’s motion. A more robust standard of review, Judge Rao asserted, would erode prosecutorial discretion. For Judge Rao, the court’s earlier decision in United States v. Fokker Servs. BV required this posture of extreme judicial deference.

Judge Wilkins asserted in his dissent that the majority turned the mandamus standard on its head. A writ of mandamus is an “extraordinary” remedy because it alleges that the court below has so far exceeded its power that immediate appellate review is necessary, replacing the usual routine that a trial judge makes a decision and the appellate court then conducts its review. To win a mandamus petition, a party must cross a high threshold, showing that, 1) there are no other adequate ways to safeguard the party’s rights; 2) the arguments for mandamus are beyond dispute; and, 3) granting the writ is “appropriate under the circumstances.”

The majority’s reading of applicable precedents under Rule 48(a) is unduly stark. While, as Judge Wilkins conceded in his dissent, a district court does not have “carte blanche” to conduct a roving, evidentiary inquiry into the prosecution’s motives for seeking dismissal, the “leave of court” standard is not the “dead letter” entombed by the majority. Rather, Rule 48(a) allows the district court to test the government’s stated rationale, especially given the “abrupt reversal” on the facts and the law in this case.

Judge Wilkins’ dissent correctly observed that neither Flynn nor the government explained how Flynn met the first mandamus prong, which requires a finding that no alternatives effectively protect Flynn’s rights. If Flynn and DOJ were right about the government’s motion to dismiss, they had nothing to fear from Judge Sullivan hearing the case. As Judge Wilkins observed, Judge Sullivan contemplated no extraordinary evidentiary proceedings here, but only a hearing on the merits. Judges regularly conduct such hearings without appellate interference. If the judge errs, appellate review is available to address the mistake. That is how our judicial system typically operates. The majority’s opinion is notably short on reasons to depart from that tried and true model.

Under the DC Circuit’s internal procedures, any active judge on the court or member of the original panel may suggest that the full court consider an en banc rehearing of a case. If that happens here or Judge Sullivan seeks an en banc rehearing, the court may revisit this issue. Otherwise, the panel’s decision will linger, distorting the law on mandamus in the DC Circuit.

Professor Peter Margulies teaches National Security Law at Roger Williams University School of Law in Rhode Island. He has spoken at events sponsored by the American Bar Association, Yale Law School, and Columbia Law School on the intersection of surveillance, cybersecurity, and privacy in U.S. and EU law. In addition, Professor Margulies has served as co-counsel for amici curiae in prominent cases, including Humanitarian Law Project v. Holder, 561 U.S. 1 (2010) (holding that statute prohibiting material support to foreign terrorist organizations did not violate the First Amendment).

With Geoff Corn, Jimmy Gurule, and Eric Jensen, Professor Margulies is co-author of NATIONAL SECURITY LAW: PRINCIPLES AND POLICY (Wolters Kluwer 2d ed. 2019). Professor Margulies’ articles include: Sovereignty and Cyber Attacks: Technology’s Challenge to the Law of State Responsibility, 14 Melb. J. Int’l L. 496 (2013), Global Cybersecurity, Surveillance, and Privacy: The Obama Administration’s Conflicted Legacy, 24 Ind. J. Global Legal Stud. 459 (2017), and Autonomous Weapons in the Cyber Domain: Balancing Proportionality and the Need for Speed, 96 U.S. Naval War Coll. Int’l L. Stud. __ (forthcoming 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3582580. 

Suggested citation: Peter Margulies, How the DC Circuit Mangled Mandamus in the Flynn Case, JURIST – Academic Commentary, June 25, 2020, https://www.jurist.org/commentary/2020/06/peter-margulies-flynn-dc-circuit-decision/.

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org