On May 21, 2020, the Court of Appeals for the DC Circuit Court of Appeals issued an extraordinary order — on its own motion — directing Judge Sullivan himself to file a response to the Petition for Writ of Mandamus filed by Gen. Flynn earlier this week. Petitioner respectfully requests that this Court order the district court immediately to (1) grant the Justice Department’s Motion to Dismiss; (2) vacate its order appointing amicus curiae; and (3) reassign the case to another district judge as to any further proceedings.
This DC Circuit Court of Appeals’ order is significant for at least two reasons:
It requires Judge Sullivan to personally respond to Flynn’s Petition for Writ of Mandamus, which is extraordinary in and of itself. It requires Judge Sullivan to directly respond the DOJ’s Motion to Dismiss with consideration of Rule 48(a) of the Federal Rules of Criminal Procedure and the Circuit Court of Appeals’ earlier decision of United States v. Fokker Services.
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US v. Fokker Services leaves Judge Sullivan no choice other than to grant the DOJ’s Motion to Dismiss its case against Flynn.
US v. Fokker Services involved a question about language in the “Speedy Trial Act,” a statute passed by Congress and signed into law by the President. That statute provides that agreements between the parties to “exclude time” under the provisions of the Act are only effective with “approval of the court.” Rule 48(a) — a procedural rule, not a statute — requires “leave of court” before a government motion to dismiss a criminal case will be granted.
The following excerpt from US v. Fokker Services is the reason for the DC Circuit Court of Appeals’ focus as set forth in its order; there seems to be no way around the following:
While the exclusion of time is subject to “the approval of the court,” there is no ground for reading that provision to confer free-ranging authority in district courts to scrutinize the prosecution’s discretionary charging decisions. Rather, we read the statute against the background of settled constitutional understandings under which authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.
The key to the ruling by the DC Circuit in US v. Fokker Services is the point made by the Court there that the kind of “discretion” conferred upon trial courts by language such as that found in the Speedy Trial Act must be interpreted against the backdrop of the constitutional framework that places certain discretionary decision-making solely in the province of a different branch of the government. So, while a district court need not be a “rubber stamp” in granting “approval” to exclude time — the question before it in US v. Fokker Services — that does not mean a district court can rely on that authority as a basis to conduct a review of the justification offered when the issue in question involves discretionary decision-making on matters solely committed to the Executive Branch.
That Judge Sullivan might disagree with the rationale advanced by the DOJ in the Motion to Dismiss is not pertinent to a determination of whether the motion is properly grounded — and the “leave of court” condition is most properly read as only requiring that such a motion be properly grounded — i.e, there is a factual and/or legal reason for the decision. Because it’s not necessary for Judge Sullivan to agree or accept the rationale put forth in the motion for dismissal to be called for, there is no purpose to be served by the searching inquiry he seems determined to conduct. Unless he can identify in his response a potential course of inquiry that leads to something other than a possible disagreement with the motion on factual and/or legal grounds, the Appeals Court is likely to grant the Petition and issue a Writ of Mandamus directing Judge Sullivan to dismiss the case forthwith.