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1) In his brief filed today, Judge Sullivan makes the arguments I anticipated in my amicus brief (my amicus brief is linked below, along with Judge Sullivan& #39;s).
https://www.scribd.com/document/463950858/05-29-2020-3-Jmr-Corrected-Amicus-Brief">https://www.scribd.com/document/... https://www.scribd.com/document/463950904/06-01-2020-7-Sullivan-Response">https://www.scribd.com/document/...
1) In his brief filed today, Judge Sullivan makes the arguments I anticipated in my amicus brief (my amicus brief is linked below, along with Judge Sullivan& #39;s).
https://www.scribd.com/document/463950858/05-29-2020-3-Jmr-Corrected-Amicus-Brief">https://www.scribd.com/document/... https://www.scribd.com/document/463950904/06-01-2020-7-Sullivan-Response">https://www.scribd.com/document/...
2) Judge Sullivan& #39;s primary argument is that mandamus cannot issue because here, unlike in Fokker, there has been no ruling one way or the other on the motion to dismiss. https://www.scribd.com/document/463950234/Flynn-Response-1">https://www.scribd.com/document/...
3) But as I point out in my amicus brief, mandamus is available not only where a district court judge DENIES the DOJ& #39;s mtn to dismiss, but also where it REFUSES TO RULE on the matter through an UNREASONABLE DELAY, which is what has happened here. https://www.scribd.com/document/463950323/Jmr-Response-1">https://www.scribd.com/document/...
4) In addition, Judge Sullivan argues that district courts DO, in fact, have discretion over whether to grant the DOJ& #39;s mtn to dismiss, even if the defendant consents, and must examine the "public interest."
https://www.scribd.com/document/463950278/Flynn-Response-2">https://www.scribd.com/document/...
https://www.scribd.com/document/463950278/Flynn-Response-2">https://www.scribd.com/document/...
5) In support of this argument, Judge Sullivan cites the early-1970s DC Circuit case of Ammidown.
https://www.scribd.com/document/463950278/Flynn-Response-2">https://www.scribd.com/document/...
https://www.scribd.com/document/463950278/Flynn-Response-2">https://www.scribd.com/document/...
6) But as I point out in my amicus brief, Ammidown& #39;s holding on this was pure dicta (that is, non-binding), and cannot be squared away with Fokker and subsequent SCOTUS precedent. https://www.scribd.com/document/463950344/Jmr-Response-2">https://www.scribd.com/document/...
7) Indeed, the Seventh Circuit--in an opinion by Judge Posner and joined by Judges Easterbrook and Wood--note that Ammindown& #39;s holding in this regard is dicta. https://www.scribd.com/document/463953071/In-re-US">https://www.scribd.com/document/...
8) This is no small matter, because while Judges Posner and Easterbrook are "conservatives," Judge Wood is very much a liberal, and was on Obama& #39;s shortlist for a SCOTUS vacancy. https://www.scribd.com/document/463953071/In-re-US">https://www.scribd.com/document/...
9) Judge Sullivan fails to take into account how here, the Government is seeking dismissal WITH PREJUDICE. https://www.scribd.com/document/463950344/Jmr-Response-2">https://www.scribd.com/document/...
10) A district court may be justified in denying the Govt.& #39;s mtd if it was seeking to dismsiss WITHOUT PREJUDICE, as there would be a risk of subjecting Flynn to multiple repeated prosecutions. https://www.scribd.com/document/463950344/Jmr-Response-2">https://www.scribd.com/document/...
11) But where, as here, the Govt. is seeking dismissal WITH PREJUDICE--meaning it would be barred from ever re-filing charges--and thus is not trying to give itself a Mulligan or do-over on the prosecution... https://www.scribd.com/document/463950344/Jmr-Response-2">https://www.scribd.com/document/...
12) Judge Sullivan cannot deny the motion or call for amicus briefing on the matter without runing afoul of the separation of powers. https://www.scribd.com/document/463950344/Jmr-Response-2">https://www.scribd.com/document/...
13) Judge Sullivan& #39;s brief makes no serious attempt to analyze any of these issues.
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