Mandamus and the Proper Role of Amicus Curiae in the Michael Flynn Case - JURIST - Commentary - Legal News & Commentary

Mandamus and the Proper Role of Amicus Curiae in the Michael Flynn Case - JURIST - Commentary - Legal News & Commentary
by Prof. Peter Margulies (Roger Williams)

On Monday, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia filed his response to the petition for mandamus brought by General Michael Flynn in the D.C. Circuit regarding Sullivan’s handling of the Justice Department (DOJ) Motion to Dismiss the false statement charges against Flynn. Flynn had pleaded guilty to these charges in 2017 and again in 2018. The mandamus petition asked the D.C. Circuit to, 1) grant the government’s motion to dismiss, 2) block Sullivan’s appointment of a retired federal judge, John Gleeson, as an amicus curiae (friend of the court) opposing the motion, and, 3) assign the Flynn case to a different district judge.

Sullivan’s Monday response—prepared by Washington, D.C. attorney Beth Wilkinson, who also represented Justice Brett Kavanaugh in his confirmation hearings—argued against each of these three steps, contending that Sullivan could decide the government’s motion, appoint an amicus, and maintain impartiality toward Flynn. 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. To preserve the ordinary course of adjudication of the government’s motion and avoid a judicial merry-go-round of judges in the long-running Flynn case, the D.C. Circuit should deny the mandamus petition’s first and third requests and allow Judge Sullivan to decide the motion to dismiss, subject to appeal.

As Sullivan’s response notes, a writ of mandamus is an “extraordinary” remedy—one well outside the norm—because it makes a sitting judge into an adverse party. A petition for mandamus argues that the judge has so exceeded their power that immediate appellate review is necessary, replacing the typical course in which a trial judge makes a decision and the appellate court reviews that ruling. 

To win a mandamus petition, a party must meet 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.” To explore how this demanding standard works in Flynn’s case, we need to briefly provide some background on the twists and turns of that prosecution.

Lawfare readers doubtless know that former Lieutenant General Michael Flynn, who had served as head of the Defense Intelligence Agency under President Obama and was eventually removed from that position, became a national security advisor to then-candidate Donald Trump during the 2016 presidential campaign. Once Trump won, he designated Flynn for the vital post of National Security Advisor. At that point, Flynn reached out to Sergey Kislyak, the Russian ambassador to the United States. That outreach was particularly fraught, given the backdrop of Russian interference in the 2016 election.