Sidney Powell Argues Against Herself, Billy Barr, and DOJ in a Petition for Writ of Mandamus

As predicted, Mike Flynn’s legal team has petitioned for a writ of mandamus with the DC Circuit. [Update: Josh Gerstein has a good explainer of what this means here.]

Technically, Sidney Powell is complaining that Judge Emmet Sullivan appointed John Gleeson as an amicus to represent the view that DOJ had taken up until two weeks ago. Although she slipped in Sullivan’s non-action in response to the motion to dismiss (she’s oddly not complaining about Sullivan’s non-action in DOJ’s still pending sentencing memorandum, the first version of which called for prison time).

The district court’s appointment of an amicus curiae to consider additional charges against General Flynn, ECF No. 205; its unnumbered minute order of May 18, 2020, granting amicus pro hac vice status in the case; its order indicating it will grant a schedule for amici, App. 3; and, its failure to grant the Government’s Motion to Dismiss with Prejudice pursuant to Rule 48(a), ECF No. 198.

Of course, Sidney Powell literally wrote a book applauding Judge Sullivan’s authority to do more — to appoint a Special Master — in cases of DOJ abuse. So this is a curious argument for her to take.

But ultimately, she’s not arguing about that, she’s complaining about the non-action, that Sullivan didn’t immediately respond to the government’s motion by dismissing the case. To argue that Sullivan erred by not dismissing the case, she cited an inapt case (which pertains to the terms of a plea agreement at sentencing, not to dismissal after the government has fully briefed sentencing) in a different circuit.

As Judge Posner noted in a much less contentious case, “No statute authorizes the Government to appeal from a denial of the dismissal of a count or case, but we do not think that there can be much doubt that such relief is available by way of mandamus.” In re United States, 345 F.3 450, 452 (7th Cir. 2003). There is even less doubt here, where continuation of the proceedings for the indefinite future will subject the Department of Justice to sustained assaults on its integrity and cast doubt on its authority to terminate criminal proceedings it has determined do not serve the interests of the United States.

As Judge Posner wryly noted in the above-cited case, “The judge . . . is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” Id. at 453. Here, that person is the signatory of the Government’s Motion to Dismiss, the United States Attorney for the District of Columbia. Like the district judge in In Re United States, the district judge below has taken over the role of prosecutor. “Mandamus serves as a check on that kind of ‘usurpation of judicial power.’” Fokker Servs., 818 F.3d at 750.

Somehow, Powell neglects to mention that Billy Barr has already publicly conceded that Judge Sullivan does get a say here.

Does Judge Sullivan have a say?

Yes. Under the rules, the case can be dismissed with leave of court. Generally, the courts have said that that provision is in there to protect defendants, to make sure the government doesn’t play games by bringing a charge and then dismissing it; bringing another charge, dismissing it. But he does have a say.

Moreover, she misrepresents the status of the case, not least by ignoring DOJ’s past assertions that Flynn’s lies were material, Sullivan’s existing ruling that they were, and DOJ’s silence about whether these new materials are Brady (a claim neither DOJ nor the outside reviewers on this case have raised). Even if it were Brady, though, Flynn has already sworn under oath that he’s not entitled to it, and sworn under oath that he doesn’t want it.

Which brings us to the biggest silence here.

Powell mentions Sullivan’s order to Gleeson to consider whether he should hold Flynn in contempt for his sworn lies, both before this court and to other official proceedings. But she doesn’t argue against it.

Not only is this petition premature (because the action it complains about — appointing an amicus — is something uncontroversial, something Powell is on the record aggressively defending). But because Sullivan included perjury in his order, it makes his order far less reviewable. What court, at any level, is going to hold that a judge has no recourse when someone lies under oath in his court?

Flynn’s team makes much of Sullivan’s comments about treason at his first sentencing, which may well be effective. But that would have been far more effective if this petition weren’t premature for the argument it’s making.

Update: I should explain my claim that the appointment of an amicus was uncontroversial. Flynn has cited a recent Supreme Court precedent holding that Judges cannot appoint an amicus to address new issues. But Gleeson won’t actually do so; he’ll address whether Flynn’s lies were material, something DOJ has been making representations about for years. Gleeson will address the perjury question, too, but that’s something that is within Judge Sullivan’s authority.

15 replies
  1. Rugger9 says:

    I’m surprised it took this long for Powell to demand that Sullivan be directed to let her client off. It will be interesting to see how the DO”J” will jump in. I will note that the WH appears to be very intent on getting Flynn out of the news as quickly as they can, in order to avoid having those other inconvenient facts drip out through the summer. I suppose this will also depend upon who it is assigned to in the DC Circuit, and whether Judge Sullivan will have an advocate to argue his side there.

  2. Tony el Tigre says:

    This is why I’m an anarchist. The Law is a con to let the powerful do whatever the fvck they want.

    • Yargelsnogger says:

      No, the law can be (and often is) perverted so that the powerful can *often* do *almost* whatever the fuck they want. Anarchy is where the powerful are literally able to do absolutely whatever the fuck they want.

      When Charles Koch (or whichever one is still alive) sends a squad of hired goons to your house to come shoot you in the head you will have no chance of justice unless that power relationship is much more in your favor than I suspect.

      I was very happy when all my friends in college outgrew their anarchist phase by age 20.

      That said, I too am disgusted with the current corruptability of our Department of Justice, but the answer will not be anarchy. It will be something else – like moving it under the court system so it won’t be such a ready tool for an evil president who finds himself a sufficiently corrupt AG.

  3. Rapier says:

    What’s the ‘conservative’ balance of the DC court now? That’s all that matters.

    • earlofhuntingdon says:

      You can bet McConnell is fundraising and arguing that the neocons need more FedSoc puppets and bigger majorities in every Circuit – to keep them safe, in a Dr. Szell sort of way – and that he needs to keep control of the Senate to get them.

      Powell seems to be in tight with Barr and the Faux Noise crowd. None of them will be happy that Sullivan’s review will delay when this gets to the DCC and the Supremes. I imagine they’re all scrambling to find ways to short circuit that, and to keep the tick-tock of the approaching croc away from Mr. Trump’s tender ears.

      • OldTulsaDude says:

        McConnell is already complaining about Judge Sullivan using the judiciary to subvert the will of the executive.

        • P J Evans says:

          I think that when politicians do that, the schools they went to should write or call, asking for their diplomas back, because clearly the politician learned nothing in all those classes.

        • Rapier says:

          German Justice Minister Franz Gürtner said it best.

          “If you cannot recognize the will of the Leader as a source of law, then you cannot remain a judge”

        • earlofhuntingdon says:

          Nauseating to hear the Senate Majority Leader espouse fascist unconstitutional views. Had he read the Constitution, which creates the legislature he is a part of, he would know his statement would earn him a failing grade on the bar exam – or high school civics.

          Ever since Marbury v. Madison in 1803, it has been the courts’ job to restrain executive and legislative action that violates the Constitution.

          But my comment falls into the MSM trap. It assumes ignorance rather than malfeasance. Mitch McConnell does know the Constitution. He knows what he’s saying is wrong and harmful. He does it anyway. Because Power. In Germany, btw, which knows how much harm such statements can lead to, McConnell’s comment would earn him a fine or imprisonment.

  4. Peterr says:

    Sullivan’s reply is clear. “Folks, someone has been lying in my court. Either the defendant lied when he pled guilty — twice — or he’s lying now. Either the DOJ lied in their earlier sentencing memos, or they are lying now. They are certainly alleging misconduct on the part of prior DOJ officers. It is my duty to figure out who is lying to me, and that is exactly what I mean to do.”

    Hard to see how an appellate court would act to stop him right now, before he’s even attempted to sort this out. Sure, they may overrule whatever decisions he ultimately comes to, but I can’t see them saying ‘don’t look into it at all.”

    • Rugger9 says:

      Until Shrub’s administration we could absolutely expect that outcome, and McConnell’s been packing the courts with “unqualified” Federalist Society hacks (according to the US Bar Association) since January 2017 so that process has been accelerated. It all depends on who is selected to hear this case in the DC Circuit.

      I wish I had better news than that.

  5. The Old Redneck says:

    I don’t think Sid Powell necessarily cares whether she has really satisfied the conditions for a writ. She just files this stuff so Fox and OAN can quote from it. She’s at least as concerned with throwing red meat to the base as actually getting rulings on this stuff. You can see this in everything she’s done since she took over Flynn’s defense.

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