I support General Flynn just as much as the average Freeper. What has happened to him is horrible.
But, putting on my appellate counsel role, I think that if Sullivan’s attorney submits the right brief, as she likely will, the writ is going to be denied.
Here is what Sullivan’s attorney should NOT do: She should not argue the law to the Court of Appeals. That’s not the judge’s role here, and would make him seem like just another litigant. If she does that, he will come off as even more of a partisan hack. Sge should also not claim he has the right to second guess the DOJ’s decision to drop its pursuit of the lying to the FBI charge. The law is too clearly against that.
What she should do is: First, point out, as to the amici (other than appointed amici) issue, that Judge Sullivan has done everything so far strictly by the book. He became aware a number of parties intended to file amici briefs. He issued an order, entirely consistent with his earlier refusals to accept amici briefs, that correctly set out the criteria that would have to be met in order to file an amici brief. He has stated an intent to set a deadline by which all such briefs shall be filed. In other words, he has acted to create an orderly process, and to provide for a clear record for review, when he denies all these motions and the frustrated amici seek to appeal. Nothing wrong there.
As to the amici he appointed, here’s what the brief should say: “I am considering initiating criminal contempt charges against the defendant (describing exactly whatever it is that Judge Sullivan thinks—as he clearly does—might justify such charges).
It is well settled that a judge can himself initiate a criminal contempt proceeding against someone whom the judge concludes has committed a contempt of court in his in his presence. See 18 U.S.C 401 (”A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;. . . “). Further, the court’s power to initiate a criminal proceeding against a party for contempt includes the authority to appoint a private attorney to prosecute the contempt. United States v. Vlahos, 33 F.3d 758 (7th Cir. 1994).
The purpose of this statute, including the rule allowing the Court itself to initiate a criminal contempt proceeding, is to allow the Court to vindicate its authority. Thus, unlike in most cases, the Court itself has standing as a party.
This fact—that the Court independently has standing to initiate a contempt—is what distinguishes these facts from the facts of the cases cited by the defendant in the petition for the writ of mandamus. In Fokker Services, this Circuit held that a court does not have a right to review the DOJ’s decision to drop or settle a case. I am not seeking to do that here. I am only delaying dismissal of the DOJ proceeding pending a final determination whether the Court will initiate its own criminal contempt proceeding.
In United States v. Sineneng-Smith the Supreme Court held that a court may not, by appointing amici, inject into a case issues which the parties have not themselves chosen to litigate. But that case did not involve a situation where Congress has granted the Court the right to initiate a criminal contempt proceeding to vindicate its own interest in ensuring respect for it’s authority as a Court. Here, the Court has its own independent right-and standing to act to assert that right—that simply was not present in that case. Therefore, the cases relied on by defendant in its application for a writ of mandamus are distinguishable.
The Court feels that the defendant engaged in acts that may warrant the initiation of a criminal contempt procedding. But the Court recognizes there is a legal issue about whether the defendant’s acts constitute “misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice,” with the meaning of 18 U.S.C. 401.
In order to ensure that the Court did not initiate a criminal contempt proceeding in a situation where it is not legally warranted, the Court therefore appointed amici and asked it to address this issue. This procedure will allow for the Court to seek a well-considered opinion on this issue, while providing the defendant a fair opportunity to respond.
Finally, it appears that if the Court intends to initiate a criminal contempt proceeding, it needs to do so before it dismisses the underlying criminal proceeding against this defendant. Therefore, while I agree that the Court is obligated to dismiss the charges brought by the DOJ at the request of the DOJ, the Court intends to do so only once it has made a final determination whether to initiate its own proceeding for criminal contempt against the defendant.”
This, to my mind, constitutes (1) a non-frivolous explanation for Judge Sullivan’s behavior; (2) the judge’s best argument; and (3) a fairly reasonable argument for why the Court should—at least at this point—deny issuance of the writ of mandamus.
Would such an argument actually prevail? I think the Circuit Court could simply decide for itself the issue that Judge Sullivan sought to have amici address, and hold that Flynn’s conduct does not qualify as “misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice” within the meaning of 18 U.S.C. 401. But the Circuit Court could also decide that that is a complicated enough question to leave for another day.
Is there anything credible behind the judge’s assertion of contempt? Isn’t “contempt” itself a rather subjective thing to interpret? If a judge wants to believe you are being hostile, that could be “contempt,” right?
That is a very compelling argument. But I would ask why does the judge need someone else to determine if Flynn has acted in contempt of Judge Sullivan’s court? Sullivan either knows right now or he doesn’t. I would grant the writ because Sullivan appears to be jerking Flynn around at this point because of a personal animus.
Thanks so much for helping Mrs. David Gregory.
I've never heard of a defendant who pled "not guilty" being charged after conviction with criminal contempt for simply having done so. Would Judge Sullivan have the burden of proving that Flynn believed that he was not guilty and the time that he pled "guilty"? Is the judge really intending to punish a man whose behavior was so misrepresented by the prosecution?
To me it is no wonder that the Appeals Court gave the judge just 10 days to make a case for not having the Circuit Court mandate a dismissal. Simply reversing the judge would make light of the judge's misconduct. As it is now, the judge may find himself accused of contempt if he fails to defer properly to the Circuit Court. This could be fun.