Congratulations are in order to General Michael Flynn and his attorney, Sidney Powell, for filing with the federal appeals court in Washington D.C. an emergency petition for a writ of mandamus. It’s an extraordinary writ — but one of the most venerable in American and Anglo-Saxon law. Their aim, sketched in crystalline prose, is to rescue the general from what the petition calls a “Kafkaesque nightmare.” We certainly wish them luck.
It’s not entirely clear to us — no offense to Ms. Powell — whether Franz Kafka could have come up with a plot as nefarious as the one by which the FBI brass and certain rogue elements within the Justice Department managed to entangle General Flynn. One of Kafka’s works Ms. Powell quotes in the petition, after all, is the dystopian novel “The Trial,” which even Kafka failed to finish. Ms. Powell may be made of sterner stuff.
What her petition seeks is a writ from the United States Circuit Court of Appeals for the D.C. circuit ordering the district court to grant immediately the government’s motion to dismiss the case against General Flynn, undoing his guilty plea. The filing reprises the way the government entrapped the general and got him to plead guilty to a crime he didn’t commit. And, in fact, for deeds that in the circumstances weren’t a crime.
All that has by now been widely reported, particularly following the motion by the United States asking that the case be dismissed because of errors or malfeasance by America’s agents and prosecutors. The petition for the writ of mandamus also takes on the errors of the district judge, Emmet Sullivan, for issuing an order inviting amicus briefs and appointing a former judge to take on the case against the government.
In doing that, the general’s petition suggests, the judge has taken on the powers of the prosecutor, powers granted by the Constitution to the executive branch. That’s a violation of separated powers. The petition also addresses the district court’s breach of the cases and controversies clauses, via which the Constitution curbs the courts by granting them the power to decide only active cases and controversies.
That limitation on the power of the courts means that once the government moves to drop a case, no case or controversy remains. The courts have no further power to act. Ms. Powell’s petition cites precedent of the District of Columbia Circuit itself and also of the Supreme Court. She cites a recent opinion by an alumna of the circuit now on the Supreme Court, Justice Ruth Bader Ginsburg. That underlines the fact that this is not a left-right issue.
Which brings us back to Kafka, the World War I-era writer from Prague who invented bizarre plots. General Flynn, Ms. Powell argues, “has been subjected to deception, abuse, penury, obloquy, and humiliation. Having risked his life in service to his country, he has found himself the target of a political vendetta designed to strip him of his honor and savings, and to deprive the President of his advice.”
The general, the petition argues, “has been dragged through the mud and forced, through coercion and the artful withholding of information crucial to his defense, to confess to a crime he did not commit — indeed, to a crime that could not exist.” Then, “having at last, through the relentless determination of his current counsel, brought the truth to light,” he learns that the judge has decided to, as one judge once put it, play prosecutor.
The petition references not only Kafka’s “The Trial,” which Orson Welles made into a movie starring Anthony Perkins. The petition also cites a short story, “In the Penal Colony.” In it Kafka imagines a contraption for meting out justice that tortures the condemned by inscribing on his body the text of the statutes he has allegedly broken. Not a bad metaphor for the attempt at destroying General Flynn’s reputation. It’s a case that demands to be ended by a writ of mandamus from the court above.