Do not wait. That is the part of wisdom for President Trump and Attorney General Barr as the United States seeks to end its wrongful prosecution of General Michael Flynn. It is for the United States to petition the Court of Appeals for the District of Columbia Circuit for a writ of mandamus against Judge Emmet Sullivan. A newspaper is not a lawyer. Our advice, though, could not be more emphatic: Do ... not ... wait.
We say that because with every passing week it will be harder to stop Judge Sullivan from violating the constitutional restrictions on the power of our courts. The courts may decide only actual cases and controversies. When both sides desire to end their dispute, the power of the court to act is over. Judge Sullivan seems so emotionally invested in this case that he chafes at that restriction. Meantime America and General Flynn are both being damaged.
This is exactly the kind of situation for which the extraordinary writs exist. The four main extraordinary writs are habeas corpus, certiorari, mandamus, and prohibition. The first requires that an individual be given his day in court. The second is how a court grants a review. Mandamus is a command that something be done. Prohibition is a command that something not be done. The latter two beckon here.
Mandamus and prohibition are covered in Rule 21 of the Federal Rules of Appellate Procedure. It states that once any docket fee is paid, the circuit’s clerk must put the matter on the docket. If we were the solicitor general of the United States — a stretch to be sure — we’d make clear that our petition is being filed on an emergency basis. To underline the emergency, we’d appear at the circuit courthouse in person.
Our understanding is that the United States does not have to stop first at the District Court, where Judge Sullivan sits. He, after all, is the problem. Every party, though, would have to be copied. The normal practice would be for the petitioner — the United States, in this case — to sketch the language of what it wants. Namely, a command that Judge Sullivan stop grandstanding and end permanently the case against the general.
Judge Sullivan, of course, is going to get to have a chance to defend his actions. So the higher court might want him to get a lawyer to represent him. That proceeding could take some days or maybe weeks, but the Circuit Panel ought to have an interest in treating this as an emergency. So the United States would be smart to ask the Circuit to stay the two orders that Judge Sullivan has issued so far.
The more recent is an order assigning an ex-judge to levy the case against the United States’ motion to end the prosecution of General Flynn. An earlier order invites amicus briefs from every Tom, Dick, and Harry who might consider themselves a friend of the court. Our own speculation — already sketched in these columns — is that the intent of Judge Sullivan’s orders is to drag this matter out while hoping for a President Biden.
In any event, filing for a writ of mandamus has some risks. The petition would presumably go to a three-judge panel. It could consist of judges who lack sympathy for either President Trump, Attorney General Barr, or General Flynn. Then again, too, the District of Columbia Circuit Court’s own reputation is on the line here, and it has to know that Judge Sullivan’s maneuvers make the circuit above look weak.
Were the United States to lose before a circuit panel, it could petition for the full circuit to review the matter. Or, since it’s an emergency, it might prefer to go directly to the Supreme Court. A long newspaper life has taught us to be wary of predicting what the Supreme — or any — court will do. Recent years, though, have found the Supreme Court prepared to act unanimously in surprising situations.
The posture of the District Court is so irregular that the higher courts mightn’t want merely to issue a writ of mandamus telling the District Court what to do. That, after all, could give the district judge a chance to issue a long, self-justifying opinion. The higher courts could simply decide the matter and declare the case against General Flynn dismissed. It’s not for nothing that they call these writs extraordinary.