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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's).
https://www.scribd.com/document/463950858/05-29-2020-3-Jmr-Corrected-Amicus-Brief https://www.scribd.com/document/463950904/06-01-2020-7-Sullivan-Response
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's).
https://www.scribd.com/document/463950858/05-29-2020-3-Jmr-Corrected-Amicus-Brief https://www.scribd.com/document/463950904/06-01-2020-7-Sullivan-Response
2) Judge Sullivan'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
3) But as I point out in my amicus brief, mandamus is available not only where a district court judge DENIES the DOJ'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
4) In addition, Judge Sullivan argues that district courts DO, in fact, have discretion over whether to grant the DOJ'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/463950278/Flynn-Response-2
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/463950278/Flynn-Response-2
6) But as I point out in my amicus brief, Ammidown'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
7) Indeed, the Seventh Circuit--in an opinion by Judge Posner and joined by Judges Easterbrook and Wood--note that Ammindown's holding in this regard is dicta. https://www.scribd.com/document/463953071/In-re-US
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's shortlist for a SCOTUS vacancy. https://www.scribd.com/document/463953071/In-re-US
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
10) A district court may be justified in denying the Govt.'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
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
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
13) Judge Sullivan's brief makes no serious attempt to analyze any of these issues.
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