Flynn mandamus case: Okay, so I'm going to explain Judge Rao's opinion. First, here is the court's entire opinion.👇🏻So, Judge Rao's majority opinion (jointed by Judge Henderson) & Judge Wilkins' dissent. drive.google.com/file/d/1s3KjKS…
/1
/1
So, just for people who've never even read a judicial opinion before, the stuff at the top third of the first page - name of the court, the dates, the type of case and name, the case number, etc.; all that stuff is called the case "caption." It's on every case to identify it. /2
The rest of page 1 & the next 2 pages are the list of lawyers who participated in the case as counsel to parties & amicus groups (I'm on page 3!) & who they represent & it names the judges deciding the case: Henderson (she's 1st because she the senior of the 3), Wilkins & Rao. /3
At the end of 3, it tells you Judge Rao is filing the Opinion for the Court (it means she wrote it & at least 1 of the others agrees). Then, at the top of page 4 is says Judge Wilkins is dissenting in part, meaning by process of elimination that Henderson is in the majority. /4
Okay, so enough administrative stuff; into the analysis. Rao's opinion is 15 pages long and Wilkins' dissent is 19 pages long. Henderson is senior, so usually - tho not always - she would have written the majority opinion if she's in the majority. But here we have Rao writing./5
The relatively even lengths of the two opinions & the fact that Henderson is the deciding vote, but she's not the author of the Court's opinion makes me think that after the argument, Henderson may have still been on the fence, but the other two disagreed with one another. /6
So, whichever side Henderson decided to go with would be the Court's (majority) opinion & the other side would be the dissent. It would make sense in that situation for Henderson to suggest the other 2 write up their opinions & the side she came down on would be the majority. /7
And then the dissent would basically also be ready to go, whichever one it turned out to be. Efficient. Also, it lets Henderson evaluate the arguments in writing from each position. So, on balance, it's not odd that Rao is writing the majority even tho Henderson is senior./8
Judges will collaborate this way on the writing of opinions even when they really really disagree with one another. They think the arguments & analysis are the important thing so sharing drafts even of their opinions are common especially to persuade another judge to join them./9
And, as we'll see, they will also comment on one another's arguments in their argument, pointing out flaws or disagreements. They don't mind sharing their work to facilitate that. It's considered part of the intellectual honesty & discipline. Your argument should hold up. /10
Rao starts w/almost a full page of facts: Flynn plead, moved to w/draw the plea for several reasons, DOJ moved to dismiss explaining its reasons, the trial judge hasn't decided the motion yet, instead appointing amicus to present opposition arguments & he set a hearing. /11
Then she sets out that Flynn petitioned the Court of Appeals for a writ of mandamus for 3 things: 1. an order directing Sullivan to dismiss the case, 2. an order vacating Gleeson's appointment as amicus, and 3. an order reassigning the case to another judge. /12
That's all setup, of course. Now she gets into the analysis. As in most cases, there are actually a lot of moving parts that have to be figured out in order to finally arrive at that overall answer. /13
Rao explains that the standard for mandamus that the "right to relief" must be "clear & indisputable." It has to be something specific that the Court of Appeals can order the trial judge to do.Not something like "Rule on the motion" or "Make a decision." An appeal can do that./14
A mandamus is NOT an appeal. It's a special remedy that the Courts of Appeals use sparingly to direct a lower court or govt official to specifically do something. So it's a high burden on the person seeking the mandamus to explain how this case is specific enough for mandamus./15
In addition to the need for a clear right, there has to be "no other adequate means" to get the relief. Basically, in addition to WHAT you're asking for being specific, you have to have a REASON for asking that can't be appropriately addressed in the normal appeals process. /16
For the most part, Courts of Appeals think that the normal appeals process works well & is the appropriate solution to errors by the lower court. They want things to proceed in an orderly, leisurely fashion so they have time to consider & evaluate. In general, this is good. /17
They will deviate from normal process in an appropriate case but the person asking them has to really show that there's a reason to go around the normal process. This is hard to do and it's meant to be. Jumping ahead shouldn't be easy. On the other hand it should be available./18
So, in addition to needing a specific request and having a reason why you can't wait out the normal process, you also have to show generally that the mandamus is appropriate under all the circumstances. Sort of a last "gut check" factor. /19
Rao's writing is very efficient. She put all that stuff I just explained about the three requirements for mandamus into 7 lines & then says: "Applying these standards, we grant Flynn's petition in part." /20
Rao leads her analysis with Fokker. NOT Ammidown. She's not fooling around. She says altho Rule 48 requires "leave of court," decisions to dismiss "lie squarely" w/in the Executive branch's purview, no less than decisions to bring charges. /21
She quotes another case (Newman): "Few subjects are less adapted to judicial review than . . . deciding . . . whether to dismiss a proceeding once brought." She concludes the judicial role is "confined" to "extremely limited circumstances in extraordinary cases." /22
She's emphasizing how narrow the judicial lane is. She lands firmly on Fokker again at the end of the paragraph of analysis, saying Rule 48 gives the court "no power" to deny the motion based on a disagreement with the prosecutor. This is the Fokker quote we emphasized also! /23
That opening paragraph of her analysis about the scope of the Rule 48 review is very no-nonsense. "Here's the answer. No fooling around. This is the answer." /24
At that end of that paragraph she drops a MOAB footnote on the issue of whether the fact that Flynn plead guilty changes the analysis. BOOM! No it doesn't! Amicus & Sullivan (& leftist lawyers on Twitter) had argued the plea was a conviction giving the court more of a stake. /25
Our group had explained that a plea is not a conviction & so the Executive branch still had the primary constitutional role until at least a judgment is entered (after sentencing); DOJ took that argument even a bit farther, arguing it had the primary role up through appeal. /26
Pages of briefs were written on the subject & untold numbers of pixels were sacrificed on the internet debating the point. Rao relegates the whole argument to a footnote & says the left's argument "conflicts with black letter law," citing a federal treatise! /27
This is almost the legal equivalent of saying, "It's in the nursery rhyme book. Don't you remember your basics? I'm not even dignifying this point with a real paragraph in my opinion." Ha! /28
Then she changes to a more conciliatory tone & says, look, even if there was room in what Fokker says for some review in some theoretical case, this isn't the case because: Flynn agrees to the dismissal, DOJ is relying on new evidence, & DOJ says the proof is inadequate. /29
To explain why this makes sense, she turns to the idea of the "presumption of regularity." This is lawyer words for "in general we all know that the govt does things according to principles & rules & shit & we aren't going to make them prove that every time they do anything."/30
Although Rao does not address this directly, the debate over that idea is at the heart of many of our political battles at the moment. "The Resistance" has simply flat-out rejected the idea that the Trump administration is entitled to this presumption. /31
She just says: "On the record before the district court, there is no clear evidence contrary to the govt's representations." Meaning, there's no PROOF that there's a problem here w/DOJ changing course. /32
She rejects 2 claims of irregularity: that only the US Attorney -not a line prosecutor- signed the motion & the motion is "longer than most" motions. She says these are "insufficient" to overcome the presumption of regularity (subtext: those are really stupid arguments.) /33
Now she's done being conciliatory & goes back to explaining the problem w/where the case was going. She says "clearly established legal principles" & DOJ's "long-settled primacy over charging decisions . . . wait for it . . . "foreclose" the review Sullivan had planned. Boom! /34
No room at the inn! She goes thru a list of things Sullivan's counsel said he was going to do & stiff-arms them. "A hearing may sometimes be appropriate. . .however a hearing cannot be used as an occasion to superintend the prosecution's charging decisions, because" - Fokker! /35
To cap off this section of the opinion she then unwraps a big tool: "The district court's orders appointing an amicus, . . . & scheduling the proposed hearing therefore constitute clear legal error." That's because for the mandamus remember, it needs to be a specific problem. /36
Finding specific legal error doesn't guarantee you the mandamus tho remember because courts deal with those an appeal all the time. So she turns to the question of: since error can be corrected on appeal, why is mandamus appropriate in this case? /37
This brings it again to the separation of powers principle that is at the heart of this case. As you guys may know who follow me, I think the separation of powers is the single most important thing in the Constitution keeping us free. It's why I did the amicus in this case./38
Rao points out that "abstract" issues of separation of powers might not rise to the level of irreparable injury - injury that can't really be fixed later if you get it wrong where you are in the process now. /39
But she points out that the DC Circuit's cases have said before in other contexts that it is sufficiently harmful when the trial court's actions are usurping a specific executive power. This makes sense - you're not going to get that usurpation back again later. /40
Rao explains the harm to the Executive branch is going to be forcing it to reveal its internal deliberative process "behind its exercise of prosecutorial discretion, interfering with [its] charging authority." That's not something that can be undone by winning on appeal. /41
Rao doesn't address this, but that is exactly the kind of authority that the Resistance doesn't want exercised by the current administration. Their whole point is that the DJT Presidency is illegitimate & should not be "allowed" to operate as a legitimate govt. /42
Roa then turns to the third factor she identified for mandamus - even if it's specific & can't be remedied on appeal, is it appropriate to issue the extraordinary writ in this particular case? She concludes yes in order to "prevent the judicial usurpation of executive power." /43
She fleshes out this factor with facts, saying the "first troubling indication" was the trial court's "mistaken understanding" of its role as evidenced by appointing Gleeson to present arguments IN OPPOSITION & choosing an amicus who advocated a full adversarial process. /44
She says, whatever the court's role is under Rule 48 it doesn't "include designating an advocate to defend Flynn's continued prosecution." & she finds it problematic that the process would set the branches "on a collision course" - a point that DOJ made nicely at the argument./45
She foresees at least two fronts confronting DOJ at a hearing - having to answer the trial court's questions about charging decisions & combatting Gleeson's arguments. She points out that inviting public comment also "suggests anything but a circumscribed review." /46
She objects to all of the above, saying: "This sort of broadside inquiry would rewrite Rule 48(a)'s narrow "leave of court" provision." /47
Not content w/merely that analysis she makes what I call the "handwriting is on the wall" argument. That is, you didn't need a map to see how the whole thing was going to go. I wondered if the Court of Appeals would blink reality tho as they sometimes will. Rao didn't. /48
She steps right up to the plate & says "And we need not guess if this irregular and searching scrutiny will continue, it already has." She points to Gleeson's motion asserting he may need time for "factual development" & his arguments that DOJ engaged in "pretext" & "abuse." /49
She notes that Gleeson doubled down on these in his brief, going outside the record to rely on news stories, tweets & other facts to contest DOJ's motions, and that more was likely to come in the same vein, perhaps even questioning DOJ about decisions in other cases. /50
Having laid out the problems, she recaps by saying "our cases are crystal clear that the district court is without authority to do so." /51
Finally, she pivots to an issue that Judge Henderson alluded to at the end of the oral argument - that the govt should be able to "self-correct." Here you see the collaboration between judges & also what it takes to get a majority position. /52
I really like this argument. It's a component of justice that we leaven it w/mercy, sometimes even if mercy isn't deserved. Rao uses a nice quote here: "[A] system that did not allow for discretionary acts of leniency would be totally alien to our notions of criminal justice."/53
But notice that this argument is NOT strictly necessary to the logical force of the argument Rao has been making. This is Henderson's contribution to the opinion. She likes this argument. Rao does a great job of incorporating it into her opinion. She ties it to the mandamus./54
She explains that DOJ is tasked to do justice & "in the third branch" (the courts), mandamus serves the same purpose! Citing a SCt case she says mandamus gives the courts of appeals power to prevent lower courts from interfering w/a co-equal branch of govt doing it's duty. /55
Rao then quickly recaps: this isn't a sufficiently unusual case to warrant any extensive review & there will be harm to the DOJ if review is permitted, so therefore by operation of logic, mandamus is appropriate. /56
Rao dispatches quickly with Flynn's request to remove Sullivan, saying he hasn't crossed the line that warrants that and they aren't going to reassign it just to have another judge dismiss the case. /57
At this point in the opinion, Rao pivots to taking on the arguments that Wilkins makes in his dissent. We'll have to wait to get to those until tomorrow, however, as it's late and I am tired. So, . . . stay tuned. /58
