At the end of June, a three-judge panel on the United States Court of Appeals for the District of Columbia Circuit slapped down trial court judge Emmet Sullivan.  The panel told him that the Constitution's separation of powers meant he could not conduct a mini-trial, complete with his own "expert," to second-guess whether the Department of Justice, which has the sole constitutional authority to dismiss cases, had properly exercised that authority when it moved to dismiss General Flynn.  On Thursday, Sullivan filed a petition with the appellate court asking for a full en banc review.

The brief is unimpressive.  For authority, it cites cases by arguing backward from what the courts didn't consider.  Then it ignores the only thing that matters here: when a federal judge has before him a Department of Justice motion to dismiss, and it's evident that the defendant is not at risk from DOJ game-playing, the constitutional separation of powers doctrine allows the judge only one course of action, which is to grant the motion.  Anything else the judge does is outside his jurisdiction and authority and is, therefore, an appropriate subject for an emergency mandamus motion stopping the judge in his tracks.

First, Wilkinson argues that, in Rinaldi v. United States, 434 U.S. 22 (1977), the Supreme Court "recognized" that a district court may hear an unopposed Rule 48 motion.  That makes it sound as if the Supreme Court affirmatively ruled on the issue.  It didn't.

As Wilkinson admits, the Rinaldi Court never considered whether the trial court had the right, in the first instance, to subject a motion for dismissal to a substantive review because no one raised the issue.  What Wilkinson is citing as authority isn't even dictum — which is when a court discusses a legal standard for something that's not dispositive in a case.

Instead, Wilkinson infers a principle by looking at what the Court didn't do.  ("[T]he Supreme Court did not question the district court's 'scrutiny of the government's motion' or inquire into 'the prosecution's charging decisions — let alone suggest that the district court's proceedings violated the Constitution.")  That's not a sound legal argument.  It's a cheat.

Second, Wilkinson argues that mandamus was premature because Sullivan hadn't done anything yet.  However, as the Court of Appeals made clear, this was not a case of whether Sullivan would have ruled correctly, given a chance.  Instead, Sullivan exceeded his constitutional authority the moment he did anything other than saying "yes" to a motion to dismiss once it was clear that the defendant's interests were not at risk.  The urgent relief of mandamus is appropriate to block a judge from engaging in unconstitutional acts exceeding his jurisdiction.

This same point goes to Wilkinson's third argument, which is that, because there are no specific statutory procedures mandated for a Rule 48 motion to dismiss, nothing stopped Sullivan from hiring a biased person to make an argument that Sullivan should not grant the DOJ's motion to dismiss.  Once again, Wilkinson tries to argue that, because the controlling case in the D.C. Circuit — United States v. Fokker Services, B.V., 818 F.3d 733 (D.C. Cir. 2016) — didn't rule on all sorts of issues, it must, therefore, be understood to give Sullivan leeway to treat the Rule 48 motion however he pleases provided that he reaches the correct outcome.

Again, this ignores the "void ab initio" (void out of the box) issue: Sullivan cannot make up procedures on an unopposed Rule 48 motion.  Sullivan cannot slowly work his way to the correct decision on an unopposed Rule 48 motion.

The law in Fokker is clear on the only point that matters: if a Rule 48 motion to dismiss is unopposed, and it's clear that the defendant is not walking into a prosecution trap, the only thing Sullivan can do is grant the motion to dismiss.  Anything else he does can and should be stopped.

In my estimation, Wilkinson's is a dishonest brief.  Having said that, thanks to Sen. Harry Reid's decision to end the filibuster for all judicial appointments other than Supreme Court justices, the D.C. Circuit has a plethora of Democrat-appointed judges.  No matter the law, that doesn't bode well for Flynn.

Image: Wikipedia.