1) Various commentators have suggested that the DC Circuit cannot, at this point, grant @SidneyPowell1's writ petition, because Judge Sullivan has not actually denied the DOJ's motion to dismiss. #appellatetwitter
2) According to this outlook, Judge Sullivan is acting within his authority by simply holding off on ruling one way or the other on the dismissal motion, and in the meantime asking for amicus briefing. #appellatetwitter
3) But federal appellate caselaw strongly suggests this outlook is wrong. #appellatetwitter
4) A strong argument can be made that a writ of mandamus is not only available when a trial judge DENIES a dismissal motion over which he has not choice but to grant, but also when the trial judge REFUSES TO RULE ONE WAY OR THE OTHER on the motion. #appellatetwitter
5) In other words, Judge Sullivan's action in refusing to even rule on the DOJ's motion to dismiss, and instead asking for amicus briefing, is itself outside of his authority and thus grounds for mandamus. #appelatetwitter
6) A good comparrison can be made to civil cases where a defendant moves for dismissal on immunity grounds. #appellatetwitter
7) Normally, in civil cases a defendant has to go through discovery (answering written questions, doing depositions, etc.), before trial. #appellatetwitter
8) But if a defendant makes a non-frivolous motion to dismiss on immunity grounds, the trial court HAS to address it before allowing any discovery or trial. #appellatetwitter
9) This is because immunity, unlike other civil defenses, includes not only the right to win the lawsuit, but also the right to be free of the burdens of discovery and trial in the first place. #appellatetwitter
10) Accordingly, if a defendant seeks dismissal on immunity grounds, and the trial court enters an order saying it will rule on it only after the defendant undergoes discovery, this very refusal to rule violates the defendant's immunity rights. #appellatetwitter
11) As a result, the Ninth Circuit has held that in such a situation mandamus is appropriate--assuming, of course, that the defendant is, under the law, entitled to immunity in the first place. #appellatetwitter
11) As a result, the Ninth Circuit has held that in such a situation mandamus is appropriate--assuming, of course, that the defendant is, under the law, entitled to immunity in the first place. #appellatetwitter
11) As a result, the Ninth Circuit has held that in such a situation mandamus is appropriate--assuming, of course, that the defendant is, under the law, entitled to immunity in the first place. #appellatetwitter
11) As a result, the Ninth Circuit has held that in such a situation mandamus is appropriate--assuming, of course, that the defendant is, under the law, entitled to immunity in the first place. #appellatetwitter
12) Notably, the Ninth Circuit case handing down the above decision was en banc--meaning it was the opinion of the entire Ninth Circuit, and not just a 3-judge panel. #appellatetwitter
13) Similarly, the Third Circuit has held that mandamus is appropriate when a trial court judge refuses to rule on a motion for summary judgment. #appellatetwitter
13) Similarly, the Third Circuit has held that mandamus is appropriate when a trial court judge refuses to rule on a motion for summary judgment. #appellatetwitter
13) Similarly, the Third Circuit has held that mandamus is appropriate when a trial court judge refuses to rule on a motion for summary judgment. #appellatetwitter
14) Some may argue that, unlike the Ninth and Third Circuits, Judge Sullivan is not refusing to rule--rather, he is simply ordering additional briefing on the DOJ's motion at issue so he can make a proper ruling based on the law. #appellatetwitter
15) But this argument ignores how Flynn--the only other party in the case--has CONSENTED to the DOJ'S motion to dismiss. #appellatetwitter
16) As Flynn has consented to the DOJ's motion to dismiss, no further briefing is required or appropriate as there is no longer an active case or controversey before Judge Sullivan. #appellatetwitter
17) By seeking amicus briefing, Judge Sullivan is trying to re-create a controversey where one no longer exists. #appellatetwitter
18) This amounts to a refusal by Judge Sullivan to rule on the DOJ's motion to dismiss, thus justifying the DC Circuit issuing a writ of mandamus forcing him to rule on the matter. #appellatetwitter
19) In light of Fokker, Judge Sullivan's refusal to rule is even more troubling than the situations discussed above by the Ninth and Third Circuits, as this is a criminal case, not a civil lawsuit. #appellatetwitter
20) As Fokker makes clear, the federal judiciary does not have the authority to question the motivations of the government in dismissing a criminal case with prejudice, in which the government is prohibiting itself from ever re-filing charges again. #appellatetwitter
21) Hence, it would seem a writ of mandamus is appropriate to compel Judge Sullivan to rule on the DOJ's dismissal motion by vacating the amicus briefing schedule and granting the dismissal. #appellatetwitter
<END>
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