In 2017 President Trump’s National Security Advisor, former general Michael Flynn, pleaded guilty to making false statements to FBI agents who chatted with him in his office. His Covington and Burling lawyers failed, from incompetence or double-dealing, to ask to see what evidence the FBI had, so he fired them and hired Sidney Powell. Less ladylike, she pressed the Justice Department to cough up the evidence. In January 2020, Flynn asked to withdraw his guilty plea, and in May the Justice Department itself admitted that the prosecution was improper and submitted a motion to Judge Sullivan to dismiss the case (see The Federalist, May 19 and June 2 and June 11).
Four days later, The Washington Post published an article by retired judge John Gleeson calling for Judge Sullivan to appoint an amicus (a “friend of the court”) to oppose dismissal. The next day, Judge Sullivan issued an invitation for amici and the day after that he appointed Gleeson himself as amicus to oppose the motion to dismiss. Flynn responded with a mandamus petition to the D.C. Circuit Court of Appeals asking that it order Sullivan to stop delaying and grant the motion to dismiss. And on June 24, the Court did just that 2 to 1, in a stinging opinion not complementary to Judge Sullivan.
Mandamus is an unusual sort of appeal that asks the appeals court to interrupt a case to stop a judge who’s gone off the rails. I’m a professor at a business school, so questions of legal organization interest me. How do we set up a system to efficiently make a rogue judge behave? I submitted an amicus brief myself.
Mandamus is rarely appropriate, even if the judge has made a mistake. We want most cases handled by just one court, with one judge. That one judge will almost always get things right. Most cases are not hard, and the trial court has a good shot at being right even in hard cases. Individuals do make mistakes, however, even if they are judges, and so we have appeals courts. The usual appeal is to a three-judge panel, to avoid individual lapses. To run efficiently, we don’t want the appeals court to repeat everything the trial court did. We strictly limit things, usually to 75 pages of writing and 30 minutes of talk. We also limit when the court will start listening. Most petitions for mandamus are rejected not because the lower-court judge is right but because it’s more efficient to wait till the trial is done and then let the loser submit all his grievances at once, not piecemeal. We want justice, but with the least cost in time and energy.
Mandamus, therefore, is not about trial judges making wrong decisions but the wrong kind of decisions. If it’s just a wrong decision, wait till the end and appeal. But Judge Sullivan is making the wrong kind of decision. He is supposed to be carrying out a duty— approving or denying dismissal of charges. Instead, he is delaying his decision and starting an investigation. If he has good reasons to deny dismissal, he should deny, and state his reasons so later the appeals court can review them. If he just suspects there are reasons, he should swallow his doubts and dismiss. What he shouldn’t do is say he suspects the Justice Department is corrupt so he needs to invent a new kind of investigation with no established procedures and no fixed length, asking everybody in Washington, D. C., for ideas and information. He shouldn’t start a fishing expedition, especially given that he won’t even say what he thinks a fish looks like. It isn’t the job of judges to investigate corruption in high places. That’s what grand juries do. Or the FBI. Or reporters. But not judges.
The purpose of mandamus is to make judges do what judges are supposed to do, not to make them do it right. As Judge Posner said, “The historic and still the central function of mandamus is to confine officials within the boundaries of their authorized powers.”(In re United States, 345 F.3d 450 (2003) If they do their job and make a mistake, the appeals court can fix it later. If they don’t do their job at all, or try to do someone else’s job, the appeals court has to intervene immediately.
So mandamus is an application of the maxim, “Where there’s a right, there’s a remedy” (“Ubi jus ibi remedium”). But does Flynn have any right to be remedied? If his claims are correct, then eventually whatever Judge Sullivan does, Flynn can appeal and win. So what’s the harm from waiting?
Let’s use a hypothetical. Suppose the prosecutor moves to dismiss charges in a case and the judge says he needs to postpone saying yes or no for two years until Mars and Venus have aligned in such a way that more can be known. He appoints his trusty astrologer friend as amicus curiae with a directive to report back in two years.
What can the prosecutor and defendant do? Clearly the judge has gone off the rails. But he hasn’t denied the motion to dismiss. Nor has he said he will base his decision on astrology— just that he will accept amicus briefs. The astrologer isn’t an attorney, but that’s no bar to being an amicus. I’m not one myself, and they took mine. So what’s the harm?
The harm is in the process. A legal system can’t avoid having judges make mistakes that lengthen proceedings unless we appoint angels as judges. So we let the mistakes accumulate and we let losers appeal. But it’s simpler to see when a judge simply isn’t doing his job or is doing somebody else’s job. Judge Posner said in the 2003 case, “The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” As Flynn’s lawyer said in asking the appeals court to rebuke Judge Sullivan, “The game is over and this Court should order the umpire to leave the field.” Sullivan’s problem is that he wants to be both judge and prosecutor. He wants it so badly that now he’s defendant too.
We could go ahead and let our hypothetical astrologizing judge be the corpse at every funeral and the bride at every wedding, if that makes him happy. But it does cause harm. Most obviously, the defendant is in limbo two more years. Justice delayed is justice denied. Vindication matters, and the sooner the better. Indeed, we could imagine a different situation where the prosecution moved to dismiss but the defendant objected and asked the judge to deny so as to force the prosecution to publicly admit the charges were false. An important function of courts is to provide public certification of who has done wrong and who has not. That’s one reason why police brutality should sometimes be prosecuted even if the policeman is innocent and the prosecutor does not think he can win: trials often show, dramatically, that the policeman did not deserve the abuse he’s received in the fake news media and help him get a little of his reputation back. But here, in the Flynn case, the Justice Department admitted its mistake, humbly, in 20 pages of detail. Delay is also harmful to the prosecutor. Prosecutors don’t want to put sticky notes in their calendars reminding them to come back in two years. And if the prosecutor finds he has made a mistake in bringing charges and does the right thing and confesses this in court, it’s ignoble to repay him by shining a public spotlight on his mistakes longer than necessary.
But the main harm from a judge taking a two-year astrology break is not to the prosecutor or the defendant, but to the court. People start snickering about looking to Venus and Mars for guidance. The trial judge in our hypothetical, of course, is willing to accept this burden. He thinks justice demands he wait for the planets to align properly, and he wants justice. He is willing to accept public ridicule; it is the cost of doing good. Fiat justitia ruat caelum. But it is not just the judge that bears the cost, but his court, his colleagues on the bench in that courthouse. They lose credibility when he does. They lose even more credibility if they were told about his astrological antics, were asked to intervene, and they said it wasn’t important enough to bother with. The public soon forgets which particular judge is a Mars fan, but they remember someone got away with being a Mars fan in that court.
My scholarly research is on Japanese judges. Different countries keep judges nonpolitical and legitimate in different ways. In Japan, young judges join the bench after passing an examination and then rise through the ranks, as in the U. S. Foreign Service. If you are promising, you start in Tokyo District Court. If you are lazy or become an activist, you end up doing divorces in Okinawa. The Secretariat which controls judicial assignments to cities and courts is perhaps too powerful, but on the plus side the result is that hard-working, responsible, and talented judges are rewarded and irresponsible judges are quarantined.
In America, on the other hand, federal judges are neither promoted nor demoted. Appointment to the Supreme Court and impeachment are too rare to be carrots and sticks. Judges stay in the same job and the same city, as a general rule. Most district court judges do not want to be appeals court judges, and most appeals court judges do not want to be district court judges. Both are enjoyable and prestigious jobs; it’s just that being a district court judge, master of his courtroom, appeals to the somatotonic action type and being an appeals court judge, discussing legal fine points with a team of other judges, appeals to the cerebretonic scholarly type.
Since we don’t have promotion and demotion, we need mandamus. Mandamus is important to right particular wrongs, but also to deter judges who overstep their authority. The longer a judge continues with frivolous proceedings, the greater the public amusement and, if it’s a political case like Flynn’s, the greater the partisan divide. It lends credence to the claims made in different ways by Trumpers and Buckleyites that in America justice is “the will of the stronger,” rather than “doing what is right, whether that hurts friend or foe.” (Plato, The Republic, Book I). Judge Sullivan’s brief says:
“Mr. Flynn likewise errs in seeking mandamus on the basis that further proceedings in the district court will subject [DOJ] to sustained assaults on its integrity.’ Judge Sullivan has not disparaged DOJ’s integrity in any way.”
Sullivan doesn’t get it. It’s not that “further proceedings in the district court will subject the Department of Justice to sustained assaults on its integrity”. After all, DOJ has come clean and acknowledged it shouldn’t have charged Flynn. No, the problem is that “further proceedings in the district court” will subject the D.C. Circuit “to sustained assaults on its integrity.” The longer the circus goes on, the longer the court looks bad. For the public to lose faith in courts is fatal to the rule of law. Final judgments will no longer be final. “The Court has ruled against you” will become “Judge Sullivan doesn’t like you.” And that’s no more dispositive than “President Trump says you’re stupid.”
Eric Rasmusen is Professor of Business Economics and Public Policy at Indiana University’s Kelley School of Business. He has also held positions at the University of Chicago, Harvard and Yale Law Schools, UCLA, Oxford, and the University of Tokyo. The views expressed here are in his private capacity.