You all could be very surprised.
I think there are two distinct issues.
1) Whether Sullivan has to dismiss the charge brought by the Government? I think that answer is clearly yes, so the mandamus will issue to require the dismissal.
2) Whether Sullivan has the right to insist that a contempt proceeding occur against Flynn, which would be a new and different charge. I think the mandamus petition didn’t squarely raise that issue, and I think that’s what the oral argument will focus on.
I hope they do so based on gross abusive prosecutorial conduct; Constitutional Due Process violations; Brady violations; conspiracy to obstruct justice and actual obstruction of justice; violations of Title 18 U.S. Code 241/242.
I hope the COA avoids the issue of the government having absolute discretion to charge or not charge a crime, or dismiss a prosecution for any reason, or no reason, at any time.
Having read the Constitutional and Rules of Criminal Procedure, I just don't see that the Government and Flynn's argument is really strong based on the clear meaning of the written words. Yes, I know that the COA and the U.S. Supreme Court has ruled that the government can do so,but I think they are mistaken. What happens when the government refuses to prosecute a person for what are clearly serious felonies, even treason and sedition?
When our nation was founded, the was a common law that allowed for private prosecutors, and in some states, there are statutes enacted into law that permit this process if a prosecutor declines to do so. The State of Washington is one of them. Statutes like this address situations when a prosecutor is corrupt. In my mind, that would be very dangerous