Is Judge Emmet Sullivan’s collusion cameo nearing its end?

Today, the U.S. Court of Appeals for the D.C. Circuit, on its own motion, ordered Judge Sullivan to respond within ten days to the petition for a writ of mandamus filed by Michael Flynn. Earlier this week, Flynn’s counsel, Sidney Powell, filed the petition for that extraordinary writ, asking the appellate court to instruct Sullivan to grant the Justice Department’s motion to dismiss the case against Flynn.

That was after Judge Sullivan not only declined to grant the prosecution’s motion, but (a) invited non-parties to intervene in the case by filing amicus briefs (transparently, to make arguments that he somehow has authority to deny DOJ’s motion); and (b) appointed one amicus, former federal judge John Gleeson, as a quasi-prosecutor to make arguments that prosecutors are declining to make in favor of entering a judgment of conviction and sentencing Flynn.

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As I noted yesterday, Sullivan’s encouragement of amicus briefs, which are not authorized in criminal cases, flies in the face of Sullivan’s own very firm orders previously declining to permit amicus briefs in Flynn’s case — some two dozen times by Ms. Powell’s count.

The appointment of Gleeson is equally astonishing and offensive to the principle of courts as impartial arbiters. Gleeson — who worked at the U.S. attorney’s office for the Eastern District of New York with Loretta Lynch (later President Obama’s attorney general) and Andrew Weissmann (chief prosecutor on the Mueller probe that brought the Flynn case — and now a Biden for President fundraiser) — has co-written a Washington Post op-ed portraying the Justice Department’s dismissal motion as an abuse of power.

The three-judge appellate panel that is considering the mandamus petition and that ordered Judge Sullivan to respond includes Judge Karen LeCraft Henderson, who was appointed to the D.C. Circuit by President George H. W. Bush (after being named to the district court by President Reagan); Judge Naomi Rao, who was appointed by President Trump; and Judge Robert L. Wilkins, who was appointed by President Obama.

It is apt to get Judge Sullivan’s attention that the only case the panel cited is United States v. Fokker Services B.V. In that 2016 ruling, the D.C. Circuit granted a writ of mandamus against a district judge who refused to dismiss a case (on a deferred prosecution arrangement) because the judge thought the Justice Department was letting the defendant off too easily. The Fokker Court explained that, under Rule 48(a) of the Federal Rules of Criminal Procedure, a judge has no power to deny a motion to dismiss charges. The D.C. Circuit there elaborated that decisions to dismiss pending charges “lie squarely within the ken of prosecutorial discretion,” and that judges may not substitute their view that a defendant should be prosecuted in place of the Justice Department’s determination that a case should be dropped.

The D.C. Circuit’s order that Judge Sullivan must respond cites Rule 48(a), along with Fokker.

The panel’s order invites the Justice Department to weigh in, but does not require it to do so. The Justice Department did not join in Flynn’s motion for a writ of mandamus. DOJ has made clear its view that the Flynn case should not have been charged and should be dropped; it has taken no position on whether mandamus is warranted to achieve that result.