This brief is why some people publicly (but not in court) argued that Sullivan shouldn't be able to hire a lawyer to represent him on the writ of mandamus application filed by Flynn's lawyers. The brief is just that damned good.
But you'd have to be a lawyer to appreciate it, so let me take just the opening statement, which doesn't bristle with legal citations, to show you what I mean:
It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he commit- ted the crime. It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.
So, start by stating the obvious; but also, framing the narrative. But if there is precedent for this action by the DOJ, let them bring it forward. That entire second sentence is simply the argument of this brief in, well....brief. I aspire to teach my composition students to understand an introductory paragraph and how to use it this well.
These reversals presented Judge Sullivan with several substantial questions. Was he required to grant the government’s post-plea motion to dismiss, and reverse his findings that Mr. Flynn’s false statements to the FBI about his contacts with Russia were material, without any inquiry into the facts set forth in, and surrounding, the government’s filing? What implications would dismissal have on Mr. Flynn’s separate false statements to the Department of Justice about his work for Turkey, which were part of his plea agreement but not addressed in the government’s motion? Do the facts here provide reason to question the “presumption of regularity” that ordinarily attaches to prose- cutorial decisions, United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016)? And what, if anything, should Judge Sullivan do about Mr. Flynn’s sworn statements to the court, where he repeatedly admitted to the crime and to the voluntariness of his guilty plea, only to now claim that he never lied to the government and was pressured and misled into pleading guilty? Because the parties before him now support the same relief, Judge Sullivan turned to an approach used by federal courts across the country, as well as district courts in this Circuit: He appointed an amicus to present counterarguments, and set a briefing schedule giving the government and Mr. Flynn the last word.
Again, framing the narrative, but also casting the actions of Sullivan as both fair and reasonable, and in the interests of justice. Or, as they put it in the next paragraph but one, citing the governments own brief: "Rule 48 does not require Judge Sullivan to serve as a mere rubber stamp."
The question before this Court is whether it should short-circuit this process, forbid even a limited inquiry into the government’s motion, and order that motion granted. The answer is no. Mandamus is an extraordinary remedy that should be denied where the district court has not actually decided anything. The government’s motion is pending before Judge Sullivan and could well be granted, so Mr. Flynn can obtain the exact relief he seeks through ordinary judicial process.
Mandamus is the root of our word "mandate." It is an order of a superior court directing an inferior court to take certain actions because it has acted in error. It is commonly used where an interlocutory appeal is appropriate, as when a court has taken action injurious to the moving party, before a final order in the case has been entered. Flynn is, basically, seeking an order from the Appellate court directing the trial court to enter a final order, an order of dismissal. The basic argument in this paragraph (but not the only one in the brief) is that it's too early for a mandamus action, that Flynn may yet get what he wants and until he does, the Appellate Court has nothing to do here. Which is almost a jurisdictional argument (lack of jurisdiction cuts off anything a court can be asked to do, or try to do); the fact it isn't the primary or strongest argument in this brief tells you something about this brief. But it's a point they pick up again two paragraphs later:
Mr. Flynn’s case has garnered considerable attention. But that is no reason to resolve it outside the normal judicial process. This is a “court of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). The questions presented should be resolved by the district court in the first instance. If Judge Sullivan’s decision is anything short of what the parties sought, this Court will have an opportunity to review it, without writing on a blank slate.
There's been a lot of chaff around the facts of this case. As presented in this brief, Flynn was charged with lying to the FBI about the phone calls with the Russian Ambassador, and to the DOJ about the work he'd done for Turkey without registering as a foreign agent. He pled guilty to the former, so he wouldn't face charges on the latter. Flynn went through an examination of the evidence and charges against him in court twice, and both times entered a guilty plea.
The brief on the facts of the case is worth reading, if only to see how thoroughly mendacious Flynn's defense is. He has filed a sworn affidavit that contradicts every statement he made before Sullivan, under oath, in accepting his guilty plea, and he challenges the court record implicitly by claiming he was hastened into a guilty plea, when the record shows Sullivan gave Flynn multiple chances to not enter the plea. And the thing, this isn't a matter of dueling facts and questions of fact: everything Flynn said on the record under oath in open court, he now says he didn't say, didn't mean, or didn't understand what his words meant. Flynn is only arguing with himself, in other words. The power of that argument on the appellate level, though, is this, and goes back to that "blank slate" comment: the trial court is the trier of facts. When facts are in dispute, a finder of fact must sort true from false, and that finding cannot be disputed by an appellate court. The appellate court can review a finding of law, an application of evidentiary rules, a decision even on an objection to a question: but it cannot overrule the finder of fact and find its own set of facts. Sullivan's argument here is that the final finding of facts has not been made, and until it is, the trial record is incomplete. An incomplete trial record cannot be subject to a mandamus to dismiss that case. In fact, doing so would be almost inherently improper on the part of the appellate court.
And as for the state of the record right now, or Judge Sullivan's duties as a judge:
The motions to withdraw the guilty plea have not been decided. Judge Sullivan has yet to receive any declarations from Mr. Flynn’s prior counsel; question Mr. Flynn under oath about the withdrawal, see Fed. R. Crim. P. 11(d)(2)(B); or assess his credibility regarding the claims in his declaration.
And then the brief addresses the legal questions of the case; which I could explain to you, but by the time I did that would make a lawyer of you, and that would kill you. So thank me for sparing you that; although the last paragraph of the brief bears repeating:
Week after week, this Court addresses all manner of legal questions aided by factfinding and legal analysis from the able district judges in this Circuit. In this unusual case, one of those long-tenured judges appointed an amicus to enhance his ability to perform those precise tasks in the near future. Because our judicial system is premised on the notion that adversarial presentation of the issues leads to better decisions, and because no decisions have yet been made, the Court should holster the “potent weapon[]” of mandamus, Will v. United States, 389 U.S. 90, 107 (1967), and allow Judge Sullivan to evaluate the government’s motion to dismiss in the first instance.
Believe me, that's good stuff!
