Sunday, August 30, 2020

Florida Teachers Win Lawsuit Over Schools Reopening

Leon County Judge Charles Dodson is charged with overseeing the lawsuit challenging the constitutionality of Florida's school reopening order. [ 2nd Judicial Circuit of Florida ]
School reopening lawsuit: Judge rules in favor of Florida teachers
, August 24, 2020

The Florida Department of Education quickly appealed the ruling, which called the state's actions unconstitutional.

Leon County Circuit Judge Charles Dodson ruled in favor of Florida’s statewide teachers union Monday, saying Department of Education officials “essentially ignored the requirement of school safety” when they ordered campuses to reopen for face-to-face classes this month.
Dodson also found that the department’s order, issued July 6, trampled on school boards’ constitutional authority to operate their own school systems.

“The districts have no meaningful alternative,” Dodson wrote. “If an individual school district chooses safety, that is, delaying the start of schools until it individually determines it is safe to do so for its county, it risks losing state funding, even though every student is being taught.”
Taryn Fenske, a spokeswoman for the Department of Education, said the state had filed its appeal before the close of business Monday. Education commissioner Richard Corcoran said he was “100 percent confident” the state will win.
The lawsuit was filed by the Florida Education Association, a labor organization representing about 145,000 teachers across the state.

“This fight has been, and will continue to be, about giving every parent, every teacher and every student a choice, regardless of what educational option they choose,” Corcoran said in a statement. “If you are one of the 1.6 million students who have chosen to return to the classroom, a parent, or a classroom teacher that wanted to educate their student in person, we strongly encourage you to call the Florida Education Association and tell them to drop this frivolous lawsuit.”
Through questioning during Friday’s closing arguments, Dodson hinted that he was interested in a solution that did not have school districts facing a monetary hit for taking actions that they deemed in the best safety interest of their students and staff.

“An injunction in this case will allow local school boards to make safety determinations for the reopening of schools without financial penalty,” he wrote. “This is what the local school boards were elected to do.”
He ruled that the order would become constitutional if the unconstitutional portions were deleted, as the plaintiffs’ lawyers argued during their closing comments. So he struck out the order language relating to a required date to begin in-person classes, mandatory reopening plans and provisions that in recent weeks have tied districts’ reopening decisions to state funding.
The judge used Hillsborough County’s experience as a primary example in the case. The Hillsborough School Board voted 5-2 to delay reopening its classrooms by four weeks, relying on the advice of several local health experts.

When informed of that move, Corcoran deemed the district’s action as violating the reopening order and warned officials they could lose up to $23 million monthly if they did not make changes. After trying to reach a compromise, the district changed direction without a School Board vote and announced it would reopen campuses Aug. 31 — three weeks earlier than planned.
Students began their classes online on Monday.
The district “had no real choice,” Dodson wrote. The state, he found “arbitrarily prioritized reopening schools statewide in August over safety and the advice of health experts; and all school districts complied in order to avoid a drastic loss of State funding.”

Hillsborough School Board member Tamara Shamburger, who testified for the plaintiffs, said she was excited about the ruling and pleased the judge recognized the importance of local decision making in these matters. She anticipated the board, which meets Tuesday, will revisit the situation.
“Our vote is still our vote, which is to delay the first four weeks,” Shamburger said, noting no action had been taken to overturn that decision. “I absolutely believe that ... we must have this conversation.”
The Pinellas County School Board, which opened both in-person and remote classes on Monday, also meets on Tuesday, where it, too, could discuss the ruling and its role in reopening.
Board chairwoman Carol Cook said she was thrilled the judge ruled in favor of local control of schools. But she had her doubts about changing direction on the school year.
“So far, I’m hearing that things went well” on the first day, Cook said. “I would have to really give it some serious thought whether we want to throw everybody back into disarray.”
Pasco County School Board vice chairman Allen Altman did not anticipate any change in his district, where about 60 percent of students returned to campuses for classes on Monday.
“I’ve talked to several school leaders today and they all say that opening went great,” Altman said via text message. “They reported that students, parents and school staff were all excited to be back.”

Ron Meyer, one of the union’s attorneys, said that the judge’s order would allow districts act as they see fit. They could delay reopening buildings without financial penalty, for example, if local officials decided to do so based on the advice of health experts.
It still could be a dicey move, though, he noted.
That’s because the state’s appeal triggers an automatic stay of the ruling. The plaintiffs likely will seek an order overturning the automatic stay, Meyer said.
If the stay remains in effect, it’s as if the judge’s order does not exist. If the stay is removed, then the order stands.
Florida Education Association president Fed Ingram called on Corcoran and Gov. Ron DeSantis not to appeal the case.
“Let’s work together,” Ingram said during a video news conference Monday. “We can do this together.”
The judge issued his order after two full days of testimony, and two hours for closing arguments. The lawyers representing the state presented witnesses to back the contention that children do not pass COVID-19 to adults, which the plaintiffs called “fallacious,” and that the risks of keeping schools closed are more detrimental than opening them.
They further argued that teacher plaintiffs in the case, who said they were faced with returning to unsafe work conditions or quitting, had no legal injury. They said teachers could file grievances against their districts through their contracts to fight such decisions.

But the defense lawyers also acknowledged that the districts did face stiff financial penalties if they didn’t comply with the reopening order. They suggested that, since no school boards were party to the suit, they were not coerced into adopting the plans, which they weren’t forced to submit.
Dodson disagreed with that assessment, suggesting they were financially bullied into compliance, which he said is unconstitutional. He further noted that the order’s provision allowing boards to seek advice and orders from health department officials to remain closed was “essentially meaningless,” though it sounded good.

“Plaintiffs presented convincing evidence that state health officials were instructed not to provide an opinion on the reopening of schools,” Dodson wrote. “Defendants reduced the constitutional guarantee of a safe education to an empty promise, in violation of the Florida Constitution.”
Randi Weingarten, AFT President
Battle over COVID-19 school openings goes to the courts

Teachers unions are waging court fights across the country aimed at unwinding what they say are unsafe and politically motivated timetables for reopening schools that risk exposing personnel to the coronavirus pandemic.
State officials eager to ramp up brick-and-mortar operations are facing lawsuits from Florida to Texas to Iowa over reopening plans as well as access to the COVID-19 infection data needed to monitor the rate of spread within school communities. 
At the same time, lawsuits are flying from the opposition direction: Parents in several states, including New York, Massachusetts and Oregon, dissatisfied with web-based teaching alternatives, are suing to force state officials to reopen physical schools sooner as courts are increasingly called upon to referee the fight over education in the age of coronavirus.
“A legal storm is brewing as safety and social distancing requirements for a physical return to school begin to take shape around the country,” Maria Ferguson, executive director of the Center on Education Policy at George Washington University, wrote on the education website The 74.
As millions of students prepare for the first day of school — whether in-person, remote or a hybrid of the two — the fight over the reopening physical school buildings is likely to intensify.
The debate over in-person K-12 instruction planning is inseparably tied to the issues of child care needs and parents’ ability to return to the workforce to help revive the struggling economy, all of which is playing out against the backdrop of a fast-approaching November election in a country that has seen nearly 6 million cases and more than 181,000 deaths from COVID-19.
Perhaps the highest-profile legal battle is taking place in the courts of Florida, where Republican Gov. Ron DeSantis signed off last month on an emergency order over school reopenings.
Under the order, most Florida school districts would be required to hold in-person classes five days a week by the end of August or risk losing funding. President Trump, who counts DeSantis as a close ally, has also threatened to cut off federal funding for schools if they do not resume in-person learning this fall.
The Florida policy prompted a lawsuit from the Florida Education Association (FEA), a statewide teachers union, and several other plaintiffs in favor of a more cautious return to in-person teaching.
“Public schools are not designed for COVID safety, and indeed, the government has recognized that they are high-contact environments,” said Kendall Coffey, the lead plaintiff’s attorney in the Florida case, who likened prematurely opened schools to “disease factories” and called the Florida policy “financial bullying.”
“There are any number of issues, in terms of hallway sizes, the flow of students in and out of classrooms, ventilation, even how many students go into the bathroom,” he told The Hill. “There are many elements that are virtually impossible to guarantee when you're dealing with children in large amounts.”
On Aug. 24, a Florida judge ruled in favor of the union and temporarily halted the statewide order. In his decision, Judge Charles Dodson struck down the order’s unconstitutional provisions and blasted DeSantis for having “essentially ignored” the state's constitutional requirement that schools be operated safely.
“The districts have no meaningful alternative,” wrote Dodson, of Leon County. “If an individual school district chooses safety, that is, delaying the start of schools until it individually determines it is safe to do so for its county, it risks losing state funding, even though every student is being taught.”
A Florida appeals court agreed to temporarily halt Judge Dodson’s order from taking effect while DeSantis appeals.
The state contends that the benefit of in-person instruction outweighs the health risks associated with reopening brick-and-mortar schools. Some Florida school officials have also declined to disclose incidents of positive COVID-19 cases to school communities, citing the need for patient privacy. 
Attorneys for Florida have also argued in hearings that courts should not substitute their judgment for that of policymakers who have balanced all the equities and decided a prompt in-person reopening is the best policy.
Randi Weingarten, president of the American Federation of Teachers (AFT), one of the largest teachers unions in the country, said Florida has its priorities backward.
“What their arguments show is that they don’t care about human life,” Weingarten told The Hill.
According to Weingarten, internal AFT polling in June showed that about 3 in 4 teachers said they would be comfortable returning to the classroom if guidelines from the Centers for Disease Control and Prevention (CDC) were implemented in schools.
But she predicts that attitudes among teachers have shifted dramatically in past months as the Trump administration has failed to adequately manage the virus to ensure schools can be reopened safely.
“We're polling right now,” she said. “And my hunch is that just like the public polls, it's totally flipped.”
The AFT is backing lawsuits in Florida, New Mexico and Texas. Before schools can reopen safely — for what Weingarten calls “the biggest move indoors that the nation has done since March” — the group says local positivity rates should be below 3 percent and schools should have visibility into daily transmission rates. 
The union is also pushing for protocols that involve testing, contact tracing and isolation and implement best practices from the CDC for things such as ventilation, cleaning, physical distancing, mask-wearing and other safeguards.
As teachers unions make their case in court, parents in at least five states have filed lawsuits of their own to accelerate school reopenings.
A nonprofit litigation group called the Center for American Liberty, co-founded by lawyer and GOP official Harmeet Dhillon, is backing one such suit in California. Democratic Gov. Gavin Newsom’s restrictions on in-person school openings in the Golden State will affect an estimated 80 percent of K-12 students.
“The effects of this ham-handed policy are as predictable as they are tragic,” the lawsuit filed in a federal court in California states. “Hundreds of thousands of students will essentially drop out of school, whether because they lack the technological resources to engage with ‘online learning’ or because their parents cannot assist them.”
The litigation raises concerns about everything from school closures exacerbating the achievement gap and disproportionately harming special needs students and those without convenient internet access to challenges over the constitutional validity of government health orders.
Weingarten, of AFT, said it’s important to remember that despite seemingly irreconcilable differences over the policy details, all parties want to see schools reopen as soon as it’s safe to do so.
“None of us believes that remote is a substitute,” she said. “It's a supplement.”

Sarah Palin's Defamation Lawsuit Against The New York Times Will Go To Trial in February

Sarah Palin
Sarah Palin Gets Libel Trial Against New York Times
A federal judge rejects the paper's summary judgment motion and sets a trial for February.

 3:57pm PT by Eriq Gardner

Sarah Palin will proceed to trial against The New York Times next February, pandemic permitting. On Friday, U.S. District Court Judge Jed Rakoff rejected the paper's summary judgment motion in a big libel case over an editorial about gun violence. The New York federal judge concludes that she had provided enough evidence to establish actual malice on the part of the paper's former op/ed chief.

The editorial linked one of Palin's political action committee ads to a 2011 mass shooting that severely wounded then-Arizona Congresswoman Gabby Giffords. James Bennet, the writer of the editorial, wanted to make a point about a climate of political incitement, but The New York Times quickly made a correction acknowledging that no link had been established between Palin's ad and the shooting.

Rakoff had previously dismissed the suit in Aug. 2017, writing at the time that "in the exercise of that freedom, mistakes will be made, some of which will be hurtful to others."

The 2nd Circuit Court of Appeals then revived the case based on Rakoff's rash conclusion that Palin couldn't establish actual malice.

Back at the lower court, Palin aimed for something even greater than a win against The New York Times. She aimed to basically upend a half century of jurisprudence in libel cases by overthrowing the actual malice standard — that being how public figures must demonstrate awareness of falsity or reckless disregard of the truth.

Rakoff won't give that to Palin.

"Perhaps recognizing that this Court is not free to disregard preced3ent even if it were so inclined (which in this case it distinctly is not), [Palin] offers what she calls an alternative argument: that 'actual malice rule arose from distinguishable facts and should not be applied,'" writes Rakoff. "More precisely, [Palin's] argument is that the actual malice rule, which was first articulated more than half a century ago in the days before the Internet and social media, has run its course and should no longer govern our contemporary media landscape. Binding precedent does not, however, come with an experiation date. To the extend plaintiff believes the actual malice requirement ought to be abolished, she should make that argument to the appropriate court — the Supreme Court."

At the Supreme Court, Justice Clarence Thomas wants to get rid of actual malice, but whether that would ever happen is a subject for another day. In the meantime, she needs to establish actual malice to prevail.

Fortunately for Palin, Rakoff looks at the evidence and decides there's enough there, especially when viewing it in a light that is most favorable to her. In particular, he points to strong evidence that Bennet may have recklessly disregarded truth by failing to read stuff that the paper's researchers had been sending him on the topic of the shooter. The judge adds that his failure to investigate could support an inference he purposely avoided the truth.

Then again, it's no slam dunk and will be decided at a trial that Rakoff sets for February.

In the opinion (read here), Rakoff writes "there is considerable evidence that defendants mount to support the notion that Bennet simply drew the innocent inference that a political circular showing crosshairs over a Congressperson's district might well invite an increased climate of violence with respect to her. But, taken in the light most favorable to plaintiff, the evidence shows Bennet came up with an angle for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle, disregarded the results the Williamson research that he commissioned, and ultimately made the point he set out to make in reckless disregard of the truth."

Notably, Bennet resigned as opinion editor in June after a controversy over publishing an opinion piece by U.S. Senator Tom Cotton that called for a military response to civic unrest in American cities. That article spurred a rebellion by much of the paper's staff. Bennet later acknowledged that this piece hadn't been edited carefully enough.

Sarah Palin Defamation Suit Against New York Times Can Move Forward, Federal Judge Rules
by Bruce Haring, Deadline, AugustAugust 28, 2020

Sarah Palin’s defamation suit against the New York Times can move forward, a federal judge said on Friday.
US District Court Judge Jed Rakoff rejected the Times bid to dismiss the suit, which arose over a 2017 editorial Palin claims wrongly linked her to the 2011 mass shooting of Congresswoman Gabrielle Giffords. Palin was a 2008 Vice Presidential candidate and is a former Governor of Alaska.
Rakoff today said there was “sufficient evidence to allow a rational finder of fact to find actual malice by clear and convincing evidence.” While Rakoff allowed that much of Palin’s case was circumstantial, it was strong enough that a jury might find the Times and its former editorial page editor James Bennet acted with “actual malice by clear and convincing evidence.”
Rakoff scheduled a Feb. 1, 2021 trial. Read the court documents here.
“We’re disappointed in the ruling but are confident we will prevail at trial when a jury hears the facts,” Times spokeswoman Danielle Rhoades-Ha said.
The 2017 editorial came after an Alexandria, Virginia mass shooting that wounded four people, including then-House Majority Whip Steve Scalise. The editorial said that the 2011 Giffords shooting came after Palin’s political action committee had circulated a map that put 20 Democrats, including Giffords, under “stylized cross hairs.”
The Times later issued a correction, saying there was no link between “political rhetoric” and the Giffords shooting. Bennet said he had not intended to blame Palin.
Rakoff disagreed. He said Bennet’s substantial rewrite of an earlier draft, and admission he was aware “incitement” could mean a call to violence, could suggest actual malice. Rakoff also noted that Bennet may have ignored materials that were not in step with his “angle” on the editorial, something that could be construed as a reckless disregard for the truth. .

In its ruling (read it here), the three-judge US Court of Appeals for the Second Circuit vacated and remanded Rakoff’s original ruling, reached after hearing from testimony from Bennet, on procedural grounds. Therefore it did not offer an opinion on the merits of Palin’s case.
“The district court (Rakoff, J.), uncertain as to whether Palin’s complaint plausibly alleged all of the required elements of her defamation claim, held an evidentiary hearing to test the sufficiency of Palin’s pleadings. Following the hearing, and without converting the proceeding to one for summary judgment, the district court relied on evidence adduced at that hearing to dismiss Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We find that the district court erred in relying on facts outside the pleadings to dismiss the complaint. We further conclude that Palin’s Proposed Amended Complaint plausibly states a claim for defamation and may proceed to full discovery.”
Bennet testified in the unusual hearing that he did not intend to draw a “causal link” between the 2011 shooting that left Giffords severely wounded and a notorious “crosshairs” map distributed at the time by a Sarah Palin PAC.
Listening to Bennet’s testimony and considering the circumstances of law and otherwise, Rakoff made the call that Palin’s case could not effectively demonstrate actual malice, as would be required to move the matter forward.
Writing the Second Circuit’s ruling, Judge John M. Walker noted that it was clear Rakoff “viewed the hearing as a way to more expeditiously decide whether Palin had a viable way to establish actual malice. But, despite the flexibility that is accorded district courts to streamline proceedings and manage their calendars, district courts are not free to bypass rules of procedure that are carefully calibrated to ensure fair process to both sides.”

Thursday, August 20, 2020

He’ll Eventually Prevail, but Flynn Stands to Lose the Mandamus Fight

Michael Flynn
by Andrew C. McCarthy, National Review, August 15, 2020

General Michael Flynn is going to lose the battle. That was the takeaway from Tuesday’s hearing before the D.C. Circuit U.S. Court of Appeals. Flynn will eventually win the war, but President Trump’s first national-security adviser is still in a slog, and there are more scraps ahead.

The battle in question is Flynn’s petitioning of the D.C. Circuit to issue a writ of mandamus against federal district judge Emmet Sullivan. Mandamus is an extraordinary remedy. It is something of a last resort, when a judge is acting so lawlessly that the damage could be incurable if a higher court fails to intervene. Here, the writ would direct Judge Sullivan to end his highly irregular inquiry into the Justice Department’s motion to dismiss the case against Flynn and just grant that motion, as the law requires.
Flynn will eventually prevail in having the case dismissed, because he has an ace in the hole: If all else fails, the president will pardon him. Meanwhile, maybe Sullivan will grant the dismissal motion, as the judge’s lawyer hinted at the hearing. If he does not, maybe there will still be time for Flynn to win a reversal on appeal — an eventuality that some circuit judges suggested but that, practically speaking, may hinge on whether President Trump is reelected (if Trump loses, he’d have to pardon by January 20). Naturally, Flynn would rather not go the pardon route; there is more vindication if the case is formally dismissed on the motion of the prosecuting authority that brought it.

The specter of a pardon has a distorting effect on the proceedings. It has emboldened Sullivan — an erratic, irascible man who has been a judge for 36 years — to unleash his inner crazy, knowing it won’t make a difference in the end. The circuit judges are more tentative than they might otherwise be in reining him in.

That is this analyst’s conclusion after listening to Tuesday’s oral arguments, a nearly four-hour affair. Counsel for Flynn, the Justice Department, and Sullivan presented arguments to, and were exactingly questioned by, ten appellate judges. Though designed to be a face-to-face court proceeding, the en banc (or full court) hearing was conducted by audio teleconference. Things went fairly smoothly, though there were the occasional technical glitches and cacophony of competing voice-overs to which the COVID-19 era has inured us.
Flynn won’t win, but he should. He did, in fact, win the first round, before a three-judge panel. This divided ruling was vacated, however, when the full D.C. Circuit — ten judges, because an eleventh is recused — agreed to reconsider it, on the highly unusual motion of Sullivan, the district judge against whom the panel’s mandamus writ was issued.
Disqualification, a Red Herring
The fact that Sullivan himself moved for en banc review prompted the question of disqualification. The issue, however, seemed more intriguing in the run-up than it proved to be at the hearing.

As I recounted last weekend, the circuit, just a few days before the hearing, issued an order intimating that Judge Sullivan might need to recuse under the federal statute that governs disqualification. The order was cryptic, and an outsider never knows exactly what to make of such signals. Did it mean a critical mass of the judges were concerned, or was the full court merely humoring one or two of their colleagues who thought disqualification should be addressed? Or was the court hoping Sullivan would take the hint and recuse himself, sparing the appellate judges the unwelcome task of assessing his strange comportment?
In the event, it was a red herring. I had theorized that the circuit, by forcing Judge Sullivan to seek en banc review himself (when none of the appellate judges asked for it), had put him in the position of being a litigant; the law requires the disqualification of a judge who becomes a party to the case. But Sullivan’s counsel pointed out that it was the circuit’s own three-judge panel that initially ordered him to respond to Flynn’s mandamus petition — he was planning to ignore it, as he hoped the circuit would. And even though Sullivan did seek full-court review of the panel’s ruling, how could the court compel him to act like a litigant and then pull the rug out from under him when he complied? This seemed to satisfy some of the judges, who pooh-poohed disqualification and conceded that Sullivan had not made himself a party in the case.
Another part of the statute requires a judge’s recusal any time his impartiality might be questioned. Yet neither the Justice Department nor Flynn had formally moved to disqualify Sullivan. That may seem odd to the layman, but it makes practical sense. As Emerson observed, “When you strike at a king, you must kill him.” Experienced litigants never seek a judge’s disqualification unless there is no alternative and they are certain to win on the issue — because if you lose, you are going to have one very angry judge deciding your fate.

Taking her cue from the circuit’s pre-hearing order, Flynn’s counsel, Sidney Powell, told the judges that Sullivan should be disqualified. But Flynn’s bridge is already burned. In stark contrast, the Justice Department has many other cases before Judge Sullivan. It has not sought his disqualification, and the topic was not mentioned in acting solicitor general Jeffrey Wall’s presentation; he gingerly weighed in on it only when prodded by Judge Karen Henderson (who was in the panel majority that ruled against Sullivan, and who seemed more interested in the recusal issue than did her colleagues). Wall took pains to say that Sullivan had not exhibited actual bias. He made a half-hearted nod in the direction of questioning Sullivan’s impartiality, but recusal was not a hill he was prepared to die on.
The Justice Department’s Mandamus Dance
The Justice Department’s reticence is not limited to recusal. More consequential is the fact that the solicitor general has never formally moved for a writ of mandamus against Sullivan. When asked about this, Wall brushed it off as an irrelevant technicality, just as he did two months ago when the petition was argued before the panel. He insists it’s not a big deal because the Justice Department has supported Flynn’s petition — albeit only after the panel asked for its input. But if it’s not a big deal . . . then why not file the petition? After all, some of the circuit judges are clearly annoyed about being asked to rebuke a fellow jurist when a party aggrieved by Sullivan’s conduct — the executive branch, whose constitutional power to end a prosecution is being usurped — never bothered to seek the writ. I suspect the cynic in the circuit judges (like the cynic in me) wonders whether Justice’s clever lawyers are trying to have it both ways — nudge the circuit into issuing the writ, but assure Sullivan that they never asked for the writ.

Wall is a superb lawyer, and he may be right that Justice has made exactly the same arguments it would have made if it had formally petitioned for the writ. But the solicitor general’s posture has the feel of gamesmanship. It has at least some of the judges miffed.

Judge Sullivan’s Alternative Universe
Beyond that, we need to distinguish two things: The merits of the mandamus petition versus the merits of Justice’s motion to dismiss the case — i.e., the motion Sullivan has failed to grant and signaled he would not grant, which is what prompted Flynn to seek mandamus.
Wall stressed that the panel’s ruling granting mandamus should have remained undisturbed. Never before, he asserted, has a district judge, on his own motion, been granted en banc reconsideration of such a panel ruling. The Justice Department’s research indicates that only one other judge has ever tried, and that judge was rebuffed. By contrast, Sullivan’s lawyer, Beth Wilkinson, emphasizes: Never before has a circuit court issued a writ of mandamus against a district judge who has not yet even conducted a hearing on a dismissal motion, much less denied it.
So, it’s a contest of the “never befores.”
Wilkinson’s claim returns us to the topic of gamesmanship. After she made her pitch on Sullivan’s behalf, one could detect a trace of pique in the unflappable Wall’s closing argument. Wilkinson is a very able advocate, but to hear her describe how Sullivan has presided over the case, after watching how Sullivan has presided over the case, was to be transported to an alternative universe.
In her argument, Wilkinson feigned astonishment that anyone could possibly imagine the highly experienced, well-respected judge would do anything other than follow the law — and if the law requires dismissal, well then, by God, how could anyone think he wouldn’t dismiss? Indeed, she tartly observed that Sullivan originally wanted to conduct his hearing on the Justice Department’s dismissal motion in mid-July; had Flynn not sought mandamus, had the Justice Department not gone along, and had the circuit had not indulged what she described as the baseless, overwrought petition, this case might have been over a month ago.
If you’re keeping score, early in the proceedings, the highly experienced judge did not seem to have taken the few minutes he would have needed to review the file he’d inherited. Sullivan wildly implied that Flynn — a decorated 30-year combat commander, who is charged with a false-statements process crime that interviewing agents did not think he committed and that had no obstructive effect whatsoever on the Trump–Russia investigation — had “sold your country out” and might be guilty of “treason.” The judge eventually apologized, adding that he “felt terrible about that.” I’m sure that made General Flynn feel much better.
In more recent times, Sullivan has floated the nearly equally lunatic notion that Flynn should be prosecuted for contempt due to his “perjury” because — like a zillion other defendants, including an untold number during Sullivan’s long tenure — Flynn initially pled guilty but later moved to withdraw his plea and claimed innocence. In the interim, Sullivan appointed an amicus curiae (friend of the court), former federal judge John Gleeson, a partisan Democrat selected for the gig only after co-authoring a Washington Post op-ed that accused the Trump administration and its Justice Department of corruption in dropping Flynn’s case.
The role assigned to Gleeson by Sullivan is to argue against dismissal — i.e., to act as a court-appointed prosecutor against Flynn, under circumstances where the only authority with constitutional power to prosecute, the Justice Department, has announced it is dropping the case. Gleeson’s 73-page brief conveys that he expects to challenge the Justice Department’s explanation of its legal theory that Flynn is not guilty of the false-statements charge, its assessment of the strength of the case, its decision that pursuing the case would not be a meritorious expenditure of its resources, its internal deliberations about the case, and its motives for dismissing it — though Gleeson ultimately backtracked, at least for now, on the suggestion that he would subpoena witnesses and conduct additional factfinding.
Sullivan also invited other amici to weigh in, notwithstanding that there is no rule permitting amicus briefs in criminal cases (the defendant in such a case already has to contend with the limitless resources of the Justice Department). This was remarkable because, to quote a Judge Sullivan ruling, “The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases”; consequently, the judge has denied dozens of applications to file amicus briefs, including in the Flynn case.
Yes indeedy, how could anyone possibly get the nutty idea that straight-arrow Sully plans to do anything other than follow the law and dismiss the case?
Not a Thought Crime
There is no doubt about the lawlessness of what Sullivan has contemplated doing. To state succinctly what I’ve covered in other columns (e.g., here), to the extent Rule 48(a) purports to require “leave of court” before the Justice Department may dismiss a case, it unconstitutionally infringes on the executive authority — at least in a case where the defendant agrees to a dismissal that will end the case with prejudice (i.e., where the prosecutor is not violating due process by dismissing to get a tactical advantage). In a case such as Flynn’s, the presiding judge must grant the dismissal.
During the argument, some circuit judges took umbrage at this image of the lower court reduced to a rubber stamp. But that is not Flynn’s or Justice’s doing; it is what happens when Congress enacts a constitutionally dubious rule that should not have brought the court into the dismissal equation in the first place.
That is why Flynn should win the case. But, to repeat, winning the case is different from winning the mandamus.
I italicized has contemplated a moment ago because, if I may analogize to penal law, a “thought crime” is not enough for mandamus. Yes, Judge Sullivan has set the stage for a travesty, but he has not actually done anything irreparable yet.
Reluctant to think ill of their longtime fellow jurist, most of the circuit judges seem prepared to suspend disbelief and accept Ms. Wilkinson’s assurance that Sullivan will follow the law. And even acting solicitor general Wall concedes that it is proper for a judge to hold some kind of hearing on a dismissal motion, although for nothing other than the limited purpose of making sure the judge understands the Justice Department’s rationale. (In Flynn’s case, it would also be proper to hold no hearing, given that the prosecution’s very detailed submission elucidates that no tactical advantage is sought over Flynn and shows that the Justice Department has proper reasons — even if Sullivan disagrees with them.)
A mandamus writ is supposed to issue only if there is no adequate alternative relief. Flynn can’t really make that showing because if Sullivan grants the dismissal motion, Flynn gets exactly the result he wants. The Justice Department could complain that the executive is already being damaged by the hearing process Sullivan is putting in place; but again, Justice did not seek mandamus. And if Sullivan retreats and grants the motion, the way Wilkinson suggests he might, Justice won’t have much to complain about.
On the other side of the mandamus ledger, the circuit has to be concerned that granting the writ would open the floodgates to other litigants who seek to appeal right away whenever the district judge allegedly makes an error. The regular, orderly appellate process calls for waiting until the end of the district court proceedings to raise all claims of error. Circuit Judge Merrick Garland seemed especially concerned that such a precedent could not easily be limited.
Back in Judge Sullivan’s Court
To summarize, I expect the full court will rule against mandamus, probably by a 7–3 or 8–2 vote, along the party lines of a circuit that tilts heavily Democratic. The two Republican appointees who formed the panel majority in favor of issuing the writ will no doubt dissent, and perhaps pick up another vote or two, but no more. It will be interesting to see whether a majority opinion, while denying the writ, admonishes Sullivan that a judge (a) should afford the executive branch a presumption of good faith, (b) should not second-guess the executive’s reasoning or probe its motives in dismissing a prosecution, and (c) may not appoint amici to serve as parallel prosecutors.
Once mandamus is denied, the Flynn case will be sent back to Judge Sullivan. Will he drag his feet to make General Flynn sweat it out? The circuit court indicated disapproval of that prospect. Will Sullivan, despite all the rabble-rousing, just grant the dismissal motion without much more fanfare, as his lawyer suggested he might? That would be a pleasant surprise, but I’m not holding my breath. Will the judge turn the hearing into a circus and try to put the Trump Justice Department on trial? It remains a possibility, though less of one if the circuit prudently warns against it. Will Sullivan deny the dismissal motion and perhaps even try to sentence Flynn? I have to think the Justice Department would petition for mandamus at that point, and its case would be strong. Or would Justice and/or Flynn then ask the judge to impose sentence quickly, rather than put it off for a few months? That way, if President Trump loses the November election, Flynn might still have time to appeal such lawlessness and get a reversal that would obviate the need for a pardon.
Lots of questions. They cannot be answered until the ball is back in Judge Sullivan’s court. Unfortunately, I’m convinced that the D.C. Circuit will soon toss it back there.
ANDREW C. MCCARTHY is a senior fellow at National Review Institute, an NR contributing editor, and author of BALL OF COLLUSION: THE PLOT TO RIG AN ELECTION AND DESTROY A PRESIDENCY