USCA Case #20-5143

Document #1859018

Filed: 08/31/2020

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued August 11, 2020

Decided August 31, 2020
No. 20-5143

IN RE: MICHAEL T. FLYNN ,
PETITIONER

On Emergency Petition for Writ of Mandamus

Sidney Powell argued the cause for petitioner Michael T.
Flynn. With her on the opposition to the petition for rehearing
en banc were Molly McCann and Jesse R. Binnall.
Jeffrey B. Wall, Acting Solicitor General, U.S.
Department of Justice, argued the cause for United States of
America. With him on the response to the petition for
rehearing en banc were Brian C. Rabbitt, Acting Assistant
Attorney General, Hashim M. Mooppan, Counselor to the
Solicitor General, Eric J. Feigin, Deputy Solicitor General,
Frederick Liu, Assistant to the Solicitor General, Kenneth C.
Kohl, Acting Principal Assistant U.S. Attorney, and Jocelyn
Ballantine, Assistant U.S. Attorney.
Beth A. Wilkinson argued the cause for Judge Emmet G.
Sullivan. With her on the petition for rehearing en banc were
Kosta S. Stojilkovic and Rakesh N. Kilaru.

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Before: SRINIVASAN, Chief Judge, and HENDERSON,
ROGERS, TATEL, GARLAND, G RIFFITH, MILLETT , PILLARD,
WILKINS, KATSAS* and RAO, Circuit Judges.
* Circuit Judge Katsas did not participate in this matter.
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge HENDERSON,
with whom Circuit Judge RAO joins.
Dissenting opinion filed by Circuit Judge RAO, with
whom Circuit Judge HENDERSON joins.

I.
PER CURIAM : In December 2017, Michael T. Flynn
(“Petitioner”) pleaded guilty to making false statements to FBI
agents in violation of 18 U.S.C. § 1001. See Transcript of
Proceedings at 7:22–13:15, United States v. Flynn, No. 1:17cr-232, ECF No. 103 (D.D.C. Dec. 18, 2018); Transcript of
Proceedings at 16:1–15, Flynn, No 1:17-cr-232, ECF No. 16
(D.D.C. Jan. 16, 2018); Plea Agreement, Flynn, No. 1:17-cr232, ECF No. 3 (D.D.C. Dec. 1, 2017). In May 2020, before
sentencing, the Government moved to dismiss all charges with
prejudice, under Federal Rule of Criminal Procedure 48(a).
Gov’t Mot. Dismiss Crim. Info., Flynn, No. 1:17-cr-232, ECF
No. 198 (D.D.C. May 7, 2020). Petitioner moved to withdraw
his pending motions, including a motion to withdraw his guilty
plea, Flynn’s Mot. Withdraw Pending Mots., Flynn, No. 1:17cr-232, ECF No. 199 (D.D.C. May 7, 2020), and he consented

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to the Government’s motion to dismiss, Notice of Consent
Gov’t Mot. Dismiss, Flynn, No. 1:17-cr-232, ECF No. 202
(D.D.C. May 12, 2020).
On May 13, the District Court appointed an amicus curiae
“to present arguments in opposition to the government’s
Motion to Dismiss,” and to “address whether the Court should
issue an Order to Show Cause why [Petitioner] should not be
held in criminal contempt for perjury.” Order Appointing
Amicus Curiae at 1, Flynn, No. 1:17-cr-232, ECF No. 205
(D.D.C. May 13, 2020). On May 19, the District Court set a
briefing schedule and scheduled argument on the
Government’s motion to dismiss, adding that the order was
“subject to a motion for reconsideration, for good cause
shown.” Minute Order, Flynn, No. 1:17-cr-232 (D.D.C. May
19, 2020).
On the same day, Petitioner filed an Emergency Petition
for a Writ of Mandamus in this Court, seeking expedited
review. The Government did not file a petition for mandamus,
but it has generally supported Petitioner’s separation-ofpowers arguments for mandamus relief. Petitioner sought to
compel the District Court “immediately to (1) grant the Justice
Department’s Motion to Dismiss; (2) vacate its order
appointing amicus curiae; and (3) reassign the case to another
district judge as to any further proceedings.” Pet. 2. A threejudge panel of this Court ordered the District Judge to submit a
brief in response to the Petition. Order, In re: Michael T.
Flynn, No. 20-5143 (D.C. Cir. May 21, 2020) (per curiam).
The panel heard oral argument and granted the Petition in part,
issuing the writ to compel the District Court to immediately
grant the Government’s motion. Panel Maj. Op. 19; Per
Curiam Order. The panel majority declined to mandate that the
case be reassigned to a different district judge, Panel Maj. Op.
11–12, and, in light of its grant of the writ to compel immediate

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dismissal of the charges, the panel majority vacated the
appointment of amicus as moot, id. at 19. One member of the
panel dissented from the grant of the writ and the mootness
holding. See generally Panel Dissenting Op.
Following the issuance of the panel opinions but before the
order became effective, see D.C. CIR. R. 41(a)(3), the District
Judge made a filing in this Court entitled “Petition for
Rehearing En Banc,” to which Petitioner and the Government
each filed a response. An active member of the Court also
made a sua sponte suggestion that the case be reheard en banc.
See D.C. CIRCUIT HANDBOOK OF PRACTICE AND INTERNAL
PROCEDURES 60 (2019) (“[A]ny active judge of the Court, or
member of the panel, may suggest that a case be reheard en
banc.”). A vote was called, and a majority of those judges
eligible to vote elected to rehear the case en banc; the Per
Curiam Order was consequently vacated, and the en banc
Court considered the parties’ filings and heard argument.
Because this Court granted en banc review based on the
suggestion of a member of this Court to do so sua sponte,1 we
need not resolve the question of whether the District Judge—
who is not formally a respondent under Federal Rule of
The dissent makes much of the fact that we “consider[ed]” the
District Judge’s petition, see Henderson Dissenting Op. 2, even
though we generally consider all pleadings filed in a case.
Nonetheless, we granted rehearing based on a suggestion of a
member of the court, as reflected by the fact that our order granted
rehearing en banc without stating that we “granted the petition.”
When we grant a rehearing petition, we say so. E.g., United States
House of Representatives v. Mnuchin, No. 19-5176, 2020 WL
1228477, at *1 (D.C. Cir. Mar. 13, 2020) (“ORDERED that the
petition for rehearing en banc filed in McGahn, No. 19-5331, be
granted . . . .”); al Bahlul v. United States, No. 11-1324, Doc#
1575020 (D.C. Cir. Sept. 25, 2015) (“ORDERED that the petition be
granted. This case will be reheard by the court sitting en banc.”).
1

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Appellate Procedure 21—is nevertheless a “party” who may
petition for rehearing en banc pursuant to Federal Rule of
Appellate Procedure 35(b). See In re Bos.’s Children First,
244 F.3d 164, 171 (1st Cir. 2001).2 For the same reason, there
is also no Article III problem in the en banc proceeding, as the
Government acknowledged at oral argument. Oral Arg.
Transcript at 61:23–25, 62:1–14.
As to Petitioner’s first two requests—to compel the
immediate grant of the Government’s motion, and to vacate the
District Court’s appointment of amicus—Petitioner has not
established that he has “no other adequate means to attain the
relief he desires.” Cheney v. U.S. Dist. Court for D.C., 542
U.S. 367, 380 (2004) (quoting Kerr v. U.S. Dist. Court for N.
Dist. of Cal., 426 U.S. 394, 403 (1976)). We also decline to
mandate that the case be reassigned to a different district judge,
because Petitioner has not established a clear and indisputable
right to reassignment. See id. at 381. We therefore deny the
Petition.
II.
A petition for a writ of mandamus “may never be
employed as a substitute for appeal.” Will v. United States, 389
U.S. 90, 97 (1967); see also Roche v. Evaporated Milk Ass’n,
319 U.S. 21, 26 (1943) (“[Mandamus] may not appropriately
be used merely as a substitute for the appeal procedure
prescribed by the statute.”). The writ is a “potent weapon[],”
“a drastic and extraordinary remedy reserved for really
2

We also hold that the case is not moot. While the Government has
filed a motion to dismiss and Petitioner (defendant below) consents,
there remains a case or controversy unless and until that motion is
granted by the District Court. Cf. Rinaldi v. United States, 434 U.S.
22, 31–32 (1977) (per curiam) (reviewing a district court’s denial of
an unopposed Rule 48(a) motion).

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extraordinary causes.” Cheney, 542 U.S. at 380 (citations and
internal quotation marks omitted). “[T]he writ cannot be used
‘to actually control the decision of the trial court,’” Platt v.
Minn. Mining & Mfg. Co., 376 U.S. 240, 245 (1964) (quoting
Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)),
because “[a]s an appellate court, we are a court of review, not
of first view,” Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933
F.3d 784, 789 (D.C. Cir. 2019) (quoting Cutter v. Wilkinson,
544 U.S. 709, 718 n.7 (2005)).
Under governing law, the writ of mandamus should issue
only if: (1) “the party seeking issuance of the writ [has] no other
adequate means to attain the relief he desires”; (2) “the
petitioner [satisfies] the burden of showing that his right to
issuance of the writ is clear and indisputable”; and (3) “the
issuing court, in the exercise of its discretion, [is] satisfied that
the writ is appropriate under the circumstances.” Cheney, 542
U.S. at 380–81 (citations, alterations, and internal quotation
marks omitted). All three requirements must be satisfied, and
the absence of any one compels denial of the writ. “As this
case implicates the separation of powers, the Court of Appeals
must also ask, as part of this inquiry, whether the District
Court’s actions constituted an unwarranted impairment of
another branch in the performance of its constitutional duties.”
Cheney, 542 U.S. at 390.
A.
We first address Petitioner’s request to compel the District
Court to grant the Government’s Rule 48(a) motion and vacate
the appointment of amicus. We conclude that mandamus is
unavailable because an “adequate alternative remedy exists.”
In re al-Nashiri, 791 F.3d 71, 78 (D.C. Cir. 2015) (quoting
Barnhart v. Devine, 771 F.2d 1515, 1524 (D.C. Cir. 1985)).

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Issuing the writ is “inappropriate in the presence of an obvious
means of review.” Id.
Here, Petitioner and the Government have an adequate
alternate means of relief with respect to both the Rule 48(a)
motion and the appointment of amicus: the District Court
could grant the motion, reject amicus’s arguments, and dismiss
the case. At oral argument, the District Judge’s Attorney
effectively represented that all these things may happen. See
Oral Arg. Transcript at 122:24–25, 123:1–9. Even if the
District Court were to deny the motion, there would still be an
adequate alternate means of review perhaps via the collateralorder doctrine or a fresh petition for mandamus challenging the
denial, see United States v. Fokker Servs. B.V., 818 F.3d 733,
748–49 (D.C. Cir. 2016); United States v. Dupris, 664 F.2d
169, 173–74 (8th Cir. 1981), and certainly on direct appeal by
Petitioner following sentencing (at which point he could raise
amicus’s appointment as error), see 28 U.S.C. § 1291.
Petitioner has not cited any case in which our Court, or any
court, issued the writ to compel a district court to decide an
undecided motion in a particular way—i.e., when the district
court might yet decide the motion in that way on its own.
Indeed, in Platt, the Supreme Court took the opposite course,
vacating a writ of mandamus as improper where, after the
district court denied a motion, the court of appeals undertook
its own de novo examination and issued the writ to grant the
motion instead of remanding the motion to the district court for
reconsideration. 376 U.S. at 245–46. The interest in allowing
the District Court to decide a pending motion in the first
instance is especially pronounced here, given that neither
Petitioner nor the Government raised an objection in the
District Court to the appointment of the amicus or more
generally to the course of proceedings for resolving the Rule
48(a) motion.

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When ordinary appellate review (or even, as here, further
proceedings before the District Court) remains available, the
writ may not issue unless the petitioner “identif[ies] some
‘irreparable’ injury that will go unredressed if he does not
secure mandamus relief.” In re al-Nashiri, 791 F.3d at 79
(citations omitted). Petitioner has failed to do so. To be sure,
Petitioner asserts that the continuation of the proceedings
below would work a number of hardships on him. See Pet’r’s
Reply 18–19 (citing the continuation of “weekly reporting
requirements,” the fact that Petitioner’s passport and other
property are in federal custody, his inability to travel abroad or
“be in the presence of a firearm,” his incurrence of attorneys’
fees, “the stress and anxiety of further criminal prosecution,”
and “continuing ignominy”). “But it is established that the
extraordinary writs cannot be used as substitutes for appeals,
even though hardship may result from delay and perhaps
unnecessary trial.” Bankers, 346 U.S. at 383 (citations
omitted). While we recognize the gravity of the burdens
imposed on criminal defendants, those burdens, without more,
generally do not suffice to bring a case within mandamus’s
ambit. See In re al-Nashiri, 791 F.3d at 80 (noting “the bedrock
principle of mandamus jurisprudence that the burdens of
litigation are normally not a sufficient basis for issuing the
writ”); Roche, 319 U.S. at 30 (observing that the
“inconvenience” of a “trial . . . of several months’ duration”
and its corresponding costs “is one which we must take it
Congress contemplated in providing that only final judgments
should be reviewable” in criminal cases). And here, it bears
noting, Petitioner is not in confinement pending resolution of
the proceedings in the District Court. 3

3

Nor did Petitioner independently challenge before the District
Court or this Court the District Court’s orders or their timing on due
process grounds as a clearly unwarranted deprivation of liberty.

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In the absence of any extraordinary harm to Petitioner that
would result from waiting to seek our review (if necessary)
after the District Court decides the motion in the ordinary
course, the writ cannot issue, either to compel the immediate
grant of the Government’s motion or to vacate the order
appointing amicus. Roche, 319 U.S. at 30 (“Where the appeal
statutes establish the conditions of appellate review an
appellate court cannot rightly exercise its discretion to issue a
writ whose only effect would be to avoid those conditions and
thwart the Congressional policy against piecemeal appeals in
criminal cases.”).
Nor can we conclude that the Government will suffer any
irreparable injury without mandamus. The panel majority—
while acknowledging that the Government had not petitioned
for the writ, Panel Maj. Op. 17—centered its Cheney prongone analysis entirely on the harms that would befall the
Government in the absence of mandamus, see, e.g., id. at 8
(“[T]he district court’s actions will result in specific harms to
. . . the Executive Branch[] . . . . that cannot be remedied on
appeal.”). The dissent takes the same tack. Rao Dissenting Op.
9–21. We need not decide the propriety of considering the
Government’s harms as opposed to the Petitioner’s, because it
is simply not the case that the Executive will be irreparably
harmed by the procedures ordered by the District Court such
that mandamus should issue to forestall them. Petitioner and
the Government argue that appointing an amicus and
scheduling argument violate the separation of powers, relying
on language from Fokker. See, e.g., Gov’t Br. at 24 (“Because
this case involves ‘the prosecution’s constitutionally rooted
exercise of charging discretion,’ it is a ‘usurpation of judicial
power’ to second-guess it.” (quoting Fokker, 818 F.3d at 750)).
In Fokker, we reviewed the district court’s denial of a deferred
prosecution agreement sought by the government. 818 F.3d at
737–38. We concluded this denial violated the separation of

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powers by intruding on the Executive Branch’s prosecutorial
discretion. Id. Even assuming denial of the Government’s
Rule 48(a) motion would raise the same separation-of-powers
issues, the procedural posture of this case is quite different.
Fokker dealt with the separation-of-powers harms that
followed the denial of the government’s motion. This case
raises a different set of alleged separation-of-powers harms
from the still-unfolding process of deciding the Government’s
motion. And at this stage, those harms are speculative,
especially when the arguments advanced here against that
process were not first presented to the District Court by
Petitioner or the Government.
Quite simply, the only separation-of-powers question we
must answer at this juncture is whether the appointment of an
amicus and the scheduling of briefing and argument is a
clearly, indisputably impermissible intrusion upon Executive
authority, because that is all that the District Judge has ordered
at this point. We have no trouble answering that question in
the negative, because precedent and experience have
recognized the authority of courts to appoint an amicus to assist
their decision-making in similar circumstances, including in
criminal cases and even when the movant is the government.
See, e.g., Dickerson v. United States, 530 U.S. 428, 441 n.7
(2000) (“Because no party to the underlying litigation argued
in favor of § 3501’s constitutionality in this Court, we invited
Professor Paul Cassell to assist our deliberations by arguing in
support of the judgment below.”); Pepper v. United States, 562
U.S. 476, 487 (2011) (“Because the United States has
confessed error in the Court of Appeals’ ruling on the first
question, we appointed an amicus curiae to defend the Court
of Appeals’ judgment.”). The dissent seeks to debate the metes
and bounds of separation of powers depending upon how the
hearing might actually unfold, but “[a] fundamental and
longstanding principle of judicial restraint requires that courts

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avoid reaching constitutional questions in advance of the
necessity of deciding them.” Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 445 (1988).
The Government raised concerns that the District Court
might institute “intrusive judicial proceedings and criminal
charges—and potentially even evidentiary proceedings if the
court-appointed amicus has his way.” Gov’t Br. at 33–34.
Petitioner, likewise, argued that the District Judge might
“usurp[] the power of the Attorney General to bring additional
charges.” Pet’r’s Reply at 18. But those harms are speculative
and may never come to pass. As the District Judge’s Attorney
noted at oral argument, amicus does not seek discovery or an
evidentiary hearing.4 The District Judge’s Attorney also noted
that the District Judge has not determined what questions, if
any, he may have after reviewing the briefs.5 Regardless of the
exact form the proceedings take below, these developments
underscore the point that a petition for mandamus filed in
anticipation of a district court argument is almost invariably
premature. Fowler v. Butts, 829 F.3d 788, 793 (7th Cir. 2016)
At oral argument, the District Judge’s Attorney stated that amicus,
“in his pleadings suggested there might be a basis for [discovery and
fact development]. But when he filed his pleading [in the District
Court], he said he’s not requesting any fact-finding. So [the District
Judge] surely has not entertained any of those issues, and even
[amicus] in his pleading has said that won’t be required. So there’s
nowhere, again, anywhere in the record that suggests that that would
be anything that [the District Judge] intends to do at a hearing.” Oral
Arg. Transcript at 133:17–24.
5
The District Judge’s Attorney stated: “I can’t tell you exactly what
won’t be pursued, again, because the briefing is not completed, and
[the District Judge] hasn’t decided all of the questions. He may or
may not ask. And even during the oral argument, that could address
a question that he has, and there may be no questions.” Oral Arg.
Transcript at 134:8–13.
4

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(“Factual or legal uncertainty means no mandamus.”). This is
not a circumstance in which the District Court has appointed a
court monitor with “wide-ranging extrajudicial duties over the
Government’s objection,” Cobell v. Norton, 334 F.3d 1128,
1142 (D.C. Cir. 2003), ordered presidential appointees to
appear and testify under oath, see Matter of Commodity
Futures Trading Comm’n, 941 F.3d 869, 871–73 (7th Cir.
2019), or approved discovery requests in a civil proceeding that
included the Vice President and “those in closest operational”
and advisory “proximity to the President,” “ask[ing] for
everything under the sky,” see Cheney, 542 U.S. at 381, 383,
387. Rather, the District Court has indicated through its actions
an intention simply to consider the Government’s motion in the
ordinary course, to which end it has appointed amicus to ensure
adverse presentation of the issues. See Penson v. Ohio, 488
U.S. 75, 84 (1988) (“The paramount importance of vigorous
representation follows from the nature of our adversarial
system of justice. This system is premised on the well-tested
principle that truth—as well as fairness—is ‘best discovered by
powerful statements on both sides of the question.’” (internal
quotation marks omitted) (quoting Kaufman, Does the Judge
Have a Right to Qualified Counsel?, 61 A.B.A. J. 569, 569
(1975))).
Nothing in this decision forecloses the possibility of future
mandamus relief should the District Court’s disposition of the
motion to dismiss or other order violate the separation of
powers or some other clear and indisputable right. We need
not and do not now pass on the issues that might be presented
by such a mandamus petition; it suffices that no such petition
is before us, and that the ability to seek mandamus at the
appropriate time (if necessary) provides “[an]other adequate
means to attain the relief,” Cheney, 542 U.S. at 380 (quoting
Kerr, 426 U.S. at 403), such that the writ may not issue now.
Try as they might, neither Petitioner, nor the Government, nor

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the dissent has identified a single instance where any court of
appeals has granted the writ to decide a trial court motion
without first giving the district court an opportunity to make a
decision—especially where the objections raised on mandamus
were never raised to the district court. We are aware of none.
The dissent suggests that our approach here is inconsistent
with In re Hillary Rodham Clinton & Cheryl Mills, No. 205056 (D.C. Cir. Aug 14, 2020), ignoring the fact that we denied
the writ as to petitioner Mills because she had an adequate
alternative means to seek relief, id. at 8–10, the same reason we
deny it here. We granted the writ as to Clinton, the other
petitioner, because, unlike here, she did not have an adequate
alternative remedy under our precedent, id. at 7–8 (citing In re
Kellogg Brown & Root, Inc., 756 F.3d 754, 761 (D.C. Cir.
2014)), and because, unlike here, the district court had actually
ruled on the motion at issue. (And, of course, we found that
the ruling was a clear abuse of discretion under our precedent,
id. at 10–18.)
In sum, as to Petitioner’s request that we mandate the
immediate grant of the Government’s motion and vacate the
District Court’s order appointing amicus, the failure of the
Petition to meet Cheney’s first prong compels us to deny it.

B.
We also decline to mandate the reassignment of this case
to a different district judge, see Pet. 2, though here the Petition
stalls at Cheney’s second prong. Our precedent is clear that,
because “the injury suffered by a party required to complete
judicial proceedings overseen by [a disqualified judicial]
officer is by its nature irreparable,” mandamus is an appropriate
avenue for seeking compelled recusal “where the party seeking

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the writ demonstrates a clear and indisputable right to relief.”
Cobell, 334 F.3d at 1139; see also Berger v. United States, 255
U.S. 22, 36 (1921) (“The remedy by appeal is inadequate. . . .
[I]f prejudice exist[s], it has worked its evil . . . .”). But this
Court “will reassign a case only in the exceedingly rare
circumstance that a district judge’s conduct is ‘so extreme as to
display clear inability to render fair judgment.’” In re Kellogg
Brown & Root, Inc., 756 F.3d 754, 763 (D.C. Cir. 2014)
(quoting Liteky v. United States, 510 U.S. 540, 551 (1994)); see
also id. (referring to this as a “very high standard”).
Petitioner points to the District Judge’s failure to grant the
Government’s motion, his appointment of amicus, and his plan
for a briefing schedule that addressed potential submissions by
other amici as “bespeak[ing] a judge who is
. . . biased against Petitioner.” Pet. 32. But “judicial rulings
alone almost never constitute a valid basis for a bias or
partiality motion.” Liteky, 510 U.S. at 555 (indicating that
rulings warranting recusal occur “only in the rarest
circumstances”); see also Rafferty v. NYNEX Corp., 60 F.3d
844, 848 (D.C. Cir. 1995) (per curiam) (“Rafferty offers no
evidence that the judge had a conflict of interest or was biased;
he merely infers bias from unfavorable judicial rulings and
from court delays in ruling on pending motions.”). Petitioner’s
inferences aside, none of the District Judge’s actions cited by
Petitioner comes close to meeting the “very high standard” of
“conduct . . . so extreme as to display clear inability to render
fair judgment.” In re Kellogg Brown & Root, Inc., 756 F.3d at
763 (citation and internal quotation marks omitted).
Petitioner also argues that several of the District Judge’s
statements evidence the District Judge’s “outrage” and “deepseated antagonism,” warranting reassignment. Pet. 33; see
App. 34:13–18 (“Arguably, you sold your country out. The
Court’s going to consider all of that. . . . [Y]ou could be

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incarcerated.”); id. at 34:19–23 (“It could be that any sentence
of incarceration imposed after your further cooperation . . .
would be for less time than a sentence may be today. I can’t
make any guarantees, but I’m not hiding my disgust, my
disdain for this criminal offense.”); id. at 37:9–10
(“Hypothetically, could he have been charged with treason?”);
id. at 41:16–23 (“I was just trying to determine the benefit of
and the generosity of the government in bestowing a benefit on
Mr. Flynn. . . . I’m not suggesting he committed treason.”). The
quoted statements were made at a scheduled sentencing
proceeding at which the Judge first inquired whether Petitioner
adhered to his guilty plea (he did), App. at 17:1–7, and then
urged Petitioner to reconsider whether he wished to proceed
that day with the scheduled sentencing or wait until he
completed his cooperation (he chose to postpone), id. at 45:11–
25, 49:2–12. We agree with the panel majority, Panel Maj. Op.
11, that none of the statements to which Petitioner points
establishes that reassignment is warranted.6
“[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of . . .
proceedings[] do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.”
Liteky, 510 U.S. at 555; see also Fokker, 818 F.3d at 751
(holding reassignment unwarranted where “the district court
volunteered opinions about Fokker’s conduct on the basis of
facts presented during the proceedings”). Here, the District
Judge was not simply holding forth on his opinions; rather,
The dissent now suggests that “a pattern of conduct” beginning
“early on in this case” raises “serious concerns” about impartiality,
Henderson Dissent Op. 4, but the only cited conduct that was not also
in front of the panel is the District Judge’s decision to seek en banc
review before the panel’s order became effective—an action that, as
we explain, cannot on its own support a different result now.
6

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each of the statements to which Petitioner objects was plainly
made in the course of formal judicial proceedings over which
he presided—not in some other context. On these facts, we
cannot find that Petitioner’s right to relief is “clear and
indisputable.” Cheney, 542 U.S. at 381 (quoting Kerr, 426
U.S. at 403). We therefore deny the Petition insofar as it seeks
an order reassigning the underlying case to a different district
judge.
Likewise, there is no basis for disqualifying the District
Judge under 28 U.S.C. § 455(b)(5)(i), because the District
Judge has not become a party to the proceeding below.
“‘[P]roceeding’ includes pretrial, trial, appellate review, or
other stages of litigation,” 28 U.S.C. § 455(d)(1)—but,
contrary to the contention of the dissent, Henderson Dissenting
Op. 1–2, a petition for a writ of mandamus is a separate action.
See, e.g., Fed. Ins. Co. v. United States, 882 F.3d 348, 362 (2d
Cir. 2018) (“[M]andamus is not an appeal . . . .”); In re
Arunachalam, 812 F.3d 290, 293 (3d Cir. 2016) (same); Skil
Corp. v. Millers Falls Co., 541 F.2d 554, 558 (6th Cir. 1976)
(“A proceeding upon a petition for a writ of mandamus is a
separate action, not an appeal . . . .”). Federal Rule of Appellate
Procedure 21 contemplates that a district judge has a proper
role, upon invitation or order of the Court of Appeals (as
occurred here), in addressing a mandamus petition. See FED.
R. APP. P. 21(b)(4). In sum, the participation of the District
Judge in the mandamus proceeding has not (and could not, as
a matter of law) transform him into a “party” in the separate
underlying criminal case.
Nor does participating in a mandamus proceeding create
an appearance of partiality warranting recusal from the
separate, underlying action. See 28 U.S.C. § 455(a). If that
were the case, then every mandamus petitioner seeking a
district judge’s recusal would, if responded to by the district

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judge, obtain the sought-after recusal—a result that would not
only swallow the dictates of § 455, but would run up against
caselaw to the contrary. See, e.g., In re Moore, 955 F.3d 384,
388 (4th Cir. 2020) (denying mandamus petition seeking
district judge’s recusal, where district judge addressed petition
at Court of Appeals’ invitation); Panel Maj. Op. 11–12
(declining to mandate reassignment of case despite district
judge’s participation on mandamus); cf. Fokker, 818 F.3d at
750–51 (where district judge was represented in mandamus
action by amicus, declining to reassign case sua sponte).7
Finally, filing a petition for rehearing en banc does not
suggest a level of partiality justifying reassignment in this case.
As explained, the District Judge participated in the mandamus
proceeding at this Court’s invitation, and nothing about that
participation created a reasonable impression of partiality, nor
could it. Having come that far, the further step of filing a
petition for rehearing did not, on its own, create a reasonable
impression of partiality, especially as nothing in the en banc
petition itself indicates bias in connection with the underlying
criminal case. Indeed, any views the District Judge has
conveyed in his briefing before us come from what he has
learned in carrying out his judicial responsibilities. Liteky, 510
U.S. at 555; Fokker, 818 F.3d at 751.
III.
For the foregoing reasons, the Petition for a writ of
mandamus is denied. As the underlying criminal case resumes

While mandamus is “an appropriate vehicle for seeking recusal of
a judicial officer during the pendency of a case,” In re al-Nashiri,
921 F.3d 224, 233 (D.C. Cir. 2019) (quoting In re Mohammad, 866
F.3d 473, 475 (D.C. Cir. 2017)), § 455(a) claims can also be raised
on direct appeal, see Fowler, 829 F.3d at 791.
7

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in the District Court, we trust and expect the District Court to
proceed with appropriate dispatch.

So ordered.

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GRIFFITH, Circuit Judge, concurring: In cases that attract
public attention, it is common for pundits and politicians to
frame their commentary in a way that reduces the judicial
process to little more than a skirmish in a partisan battle. The
party affiliation of the President who appoints a judge becomes
an explanation for the judge’s real reason for the disposition,
and the legal reasoning employed is seen as a cover for the
exercise of raw political power. No doubt there will be some
who will describe the court’s decision today in such terms, but
they would be mistaken.
This proceeding is not about the merits of the prosecution
of General Flynn or the Government’s decision to abandon that
prosecution. Rather, this proceeding involves questions about
the structure of the Judiciary and its relationship to the
Executive Branch. There are two central problems in this case:
defining the scope of the authority of the Judiciary to inquire
into the exercise of a core function of the Executive and
deciding how the relationship between the district court and our
court shapes a challenge to that inquiry. Those questions are far
removed from the partisan skirmishes of the day. The
resolution of those questions in this case involves nothing more
and nothing less than the application of neutral principles about
which reasonable jurists on this court disagree. See Robert H.
Bork, Neutral Principles and Some First Amendment
Problems, 47 IND. L.J. 1 (1971). And that principled
disagreement revisits a long-running debate about the relative
powers of the Executive and Judicial Branches. Today we
reach the unexceptional yet important conclusion that a court
of appeals should stay its hand and allow the district court to
finish its work rather than hear a challenge to a decision not yet
made. That is a policy the federal courts have followed since
the beginning of the Republic, see Judiciary Act of 1789, ch.
20, § 22, 1 Stat. 73, 84; 28 U.S.C. § 1291, and we are aware of
no case in which a court of appeals has ordered a district judge
to decide a pending motion in a particular way.

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Moreover, as its counsel repeatedly stated at oral
argument, the district court may well grant the Government’s
motion to dismiss the case against General Flynn. In fact, it
would be highly unusual if it did not, given the Executive’s
constitutional prerogative to direct and control prosecutions
and the district court’s limited discretion under Rule 48(a),
especially when the defendant supports the Government’s
motion. But if the court denies the motion, General Flynn has
multiple avenues of relief that he can pursue. And because he
does, mandamus is not appropriate in this case at this time.

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KAREN LECRAFT HENDERSON, Circuit Judge, with whom
RAO, Circuit Judge, joins, dissenting: The Court today denies
Michael Flynn’s mandamus petition on the ground that he has
an adequate remedy at law. It also declines to reassign this case
to a different trial judge. I dissent as to the majority’s merits
holding for the reasons stated in the majority opinion in In re
Flynn, 961 F.3d 1215, 1219 (D.C. Cir. 2020), vacated, reh’g
en banc granted No. 20-5143, 2020 WL 4355389 (D.C. Cir.
July 30, 2020); further, I join Judge Rao’s dissent herein. As
to the majority’s decision not to reassign, my colleagues set an
impossibly high bar for a trial judge’s impartiality to
“reasonably be questioned,” 28 U.S.C. § 455(a), and seem
content to read that subsection out of the United States Code,
even as they infuse Rule 48(a)’s “with leave of court” clause
with enough force to upend our entire system of separated
powers. Because I believe the trial judge’s conduct patently
draws his impartiality into question—and because I believe
§ 455(a) has teeth—I dissent and write separately to explain
why the trial judge is disqualified from further participation in
this case.
When a party petitions for mandamus relief pursuant to
Federal Rule of Appellate Procedure 21, as Michael Flynn did,
that Rule provides—in careful detail—that the trial judge who
is the subject of the requested relief can participate only to the
extent we authorize him to do so. See FED. R. APP. P. 21(b)(4).
The three-judge panel did authorize the trial judge to
participate by directing him to “file a response addressing
petitioner’s request that this court order [him] to grant the
government’s motion to dismiss.” Order, In re Flynn, No. 205143 (D.C. Cir. May 21, 2020) (per curiam). He can gain no
greater role when, dissatisfied with the grant of the writ, he
seeks en banc review.
Federal Rule of Appellate Procedure 35, which sets out the
en banc review procedure, authorizes only a “party” to seek en
banc review. FED. R. APP. P. 35(b). The trial judge to whom

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the writ is directed is not a party within the meaning of Rule
35; 1 if he were, 28 U.S.C. § 455(b)(5)(i) would require his
disqualification from further participation in the case. Id. (trial
judge “shall . . . disqualify himself . . . [if] [h]e . . . [i]s a party
to the proceeding”). 2 Notwithstanding the July 30 order
granting en banc review recites “[u]pon consideration of the
petition for rehearing en banc,” Order, In re Flynn, No. 205143, 2020 WL 4355389, at *1 (D.C. Cir. July 30, 2020), my
colleagues in the majority now recognize their error and vacate
the writ “based on the suggestion of a member of this Court to
do so sua sponte,” Majority Op. 4. 3

1

Indeed, I am aware of no case holding that a trial judge may
petition for en banc review under Rule 35; and at least one circuit has
expressly questioned the trial judge’s ability to do so. See In re
Bos.’s Children First, 244 F.3d 164, 171 (1st Cir. 2001) (“basis” for
trial judge to petition for rehearing en banc “may be open to dispute”
based on FED. R. APP. P. 21(b)(4)); cf. Ligon v. City of New York,
736 F.3d 166, 171 (2d Cir. 2013) (per curiam) (rejecting trial judge’s
attempt to challenge reassignment because, in part, “[a] district judge
has no legal interest in a case or its outcome”).
2
Section 455(d)(1) defines “proceeding” to include “pretrial,
trial, appellate review, or other stages of litigation.”
3
The majority facilely replies that we “generally consider all
pleadings filed in a case.” Majority Op. 4 n.1 (emphasis added). I
should hope so. But when “consideration” is the sole basis in the
whereas clause of an order that is issued in only one of two ways, it
carries determinative weight. Moreover, when we grant en banc
review sua sponte, we also say so. See, e.g., Order, West Virginia v.
EPA, No. 15-1363 (D.C. Cir. May 16, 2016) (en banc) (per curiam);
Order, Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir.
2014) (en banc) (per curiam) (No. 13-5281), 2014 WL 2619836, at
*1; United States v. Microsoft Corp., 213 F.3d 764 (D.C. Cir. 2000)
(en banc) (per curiam); Kiser v. Boyle, 517 F.2d 1274 (D.C. Cir.
1974) (en banc) (per curiam). In any event, the point is that the court
should always accurately specify the basis for its action in order to

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Nonetheless, the trial judge’s unsuccessful invocation of
Rule 35 statutorily disqualifies him under § 455(a) from any
further participation—especially regarding the government’s
pending motion to dismiss—in this case. Id. (“Any justice,
judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.”); see also Code of Conduct for
United States Judges, Canon 3(C)(1) (same). Although many
of his statements throughout this case have been less than
proper, as the panel observed in the vacated panel opinion,
those statements alone “did not indicate a clear inability to
decide this case fairly” inasmuch as all that was required on
remand was “simply to grant the government’s Rule 48(a)
motion to dismiss.” In re Flynn, 961 F.3d at 1223. But his
petition for en banc review with no legal support whatsoever
therefor manifests, first, that he plainly appears to view himself
as a “party”; second, and more important, that his attempted
action removes any doubt that the appearance of impartiality
required of all federal judges has been compromised beyond
repair.
The “standard for disqualification under § 455(a) is . . .
objective” and “[t]he question is whether a reasonable and
informed observer would question the judge’s impartiality.”
United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir.
2001) (en banc) (per curiam). “The very purpose of § 455(a)
is to promote confidence in the judiciary by avoiding even the
appearance of impropriety whenever possible,” id. (quoting
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,
865 (1988)), because “[d]eference to the judgments and rulings
of courts depends upon public confidence in the integrity and
independence of judges.” In re Al-Nashiri, 921 F.3d 224, 234
discharge its obligation to give full and fair notice both to the parties
and to the public.

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(D.C. Cir. 2019) (alteration in original) (quoting Microsoft
Corp., 253 F.3d at 115). Strict adherence to § 455(a)’s
command is required to ensure that every federal judge
performs his duties so that “justice . . . satisf[ies] the
appearance of justice.” Liljeberg, 486 U.S. at 864 (quoting In
re Murchison, 349 U.S. 133, 136 (1955)). Such adherence is
all the more vital in a high-profile case like this one, in which
public interest is nationwide. See United States v. Tucker, 78
F.3d 1313, 1325 (8th Cir. 1996) (reassigning case to different
trial judge, in part, “[g]iven the high profile . . . of [the] case in
particular”); In re Bos.’s Children First, 244 F.3d at 169–70;
United States v. Cooley, 1 F.3d 985, 995 (10th Cir. 1993).
“Congress enacted subsection 455(a) precisely because
‘people who have not served on the bench are often all too
willing to indulge suspicions and doubts concerning the
integrity of judges,’” and “[i]n high profile cases such as this
one . . . , such suspicions are especially likely and untoward.”
In re Sch. Asbestos Litig., 977 F.2d 764, 781–82 (3d Cir. 1992)
(quoting Liljeberg, 486 U.S. at 864–65). A judge must proceed
with the utmost care, then, to ensure that the parties are treated
with the same fairness as those in any other case, that the
administration of the case is handled judiciously and
expeditiously and that he, at all times, maintains seamless
impartiality both in fact and in appearance.
From early on in this case, the trial judge has demonstrated
a pattern of conduct that, taken together, raises serious
concerns about the appearance of impartiality. See In re Sch.
Asbestos Litig., 977 F.2d at 781–82 (“We need not decide
whether any of these facts alone would have required
disqualification, for . . . we believe that together they create an
appearance of partiality that mandates disqualification.”); cf.
Cobell v. Kempthorne, 455 F.3d 317, 335 (D.C. Cir. 2006)
(reassignment of trial judge warranted based on “the
combination of the content of the [judge’s] opinion and the

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nature of the district court’s actions”). At Flynn’s plea hearing,
the trial judge asked whether Flynn could be guilty of treason
and noted his “disgust” and “disdain” for Flynn’s actions.
Transcript of Proceedings Held on Dec. 18, 2018 at 33, 36,
United States v. Flynn, No. 17-cr-00232 (D.D.C. Aug. 20,
2019), ECF No. 103. When, over two years later, the
government moved to dismiss the charges against Flynn, the
trial judge encouraged the general public to participate as
amici, see Minute Order, United States v. Flynn, No. 17-cr00232 (D.D.C. May 12, 2020), and appointed an amicus, not to
assist the judge with a complex area of law but instead to
“present arguments in opposition to the government’s Motion
to Dismiss,” Order Appointing Amicus Curiae at 1, United
States v. Flynn, No. 17-cr-00232 (D.D.C. May 13, 2020), ECF
No. 205. And his choice was not just any amicus; the day
before his appointment, amicus penned an op-ed in The
Washington Post suggesting that the trial judge could—and
strongly implying that he should—deny the government’s
motion. See John Gleeson, et al., The Flynn case isn’t over
until the judge says it’s over, WASH. POST. (May 11, 2020, 6:52
PM),
https://www.washingtonpost.com/opinions/2020/05/11/flynncase-isnt-over-until-judge-says-its-over/. Then, on Flynn’s
petitioning for mandamus relief and the panel’s ordering the
trial judge to address the government’s dismissal motion, he
retained counsel. Entry of Appearance, In re Flynn, No. 205143 (D.C. Cir. May 26, 2020) (Beth A. Wilkinson’s entry of
appearance on behalf of the trial judge). Finally, after the panel
ordered him to grant the government’s motion, he sought to use
a procedure limited to a “party” and petitioned for en banc

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review. Petition at 1–2, In re Flynn, No. 20-5143 (D.C. Cir.
July 9, 2020). 4
The trial judge’s attempted use of Rule 35 is not the first
time he has acted as if he were a party. At his option and with
the appellate court’s approval, Rule 21, as noted earlier, allows
the subject judge to participate in a mandamus proceeding
either directly or by amicus. 5 But Rule 21 leaves no room for
the judge to retain private counsel as was done here. See FED.
R. APP. P. 21(b)(4). A party, not a judge whose action is under
mandamus review, retains private counsel. As the Advisory
Committee Notes on Rule 21(b) make clear, “[b]ecause it is
ordinarily undesirable to place the trial court judge, even
temporarily, in an adversarial posture with a litigant, the rule
permits a court of appeals to invite an amicus curiae to provide
a response to the petition.” FED. R. APP. P. 21(b) advisory
committee’s note to 1996 amendment (first emphasis added).
And his earlier sua sponte appointment of amicus to
oppose the government’s motion to dismiss, although
apparently allowed, is further indication that he has from the
outset appeared to view his role in adjudicating the
government’s motion to dismiss as one that requires outside
support—as if he were a priori antagonistic to the relief both
4

The majority takes issue with my characterization of this
history as a “pattern of conduct” when the panel had much of the
history before it and did not deem it sufficient to disqualify the trial
judge for an appearance of partiality. Majority Op. 15 n.6. As we,
like all courts, have consistently held, however, it is often a
combination of facts that creates the prohibited appearance. See In
re Sch. Asbestos Litig., 977 F.2d at 781–82. And the trial judge’s
ultra vires Rule 35 petition is the trout in the milk. See HENRY D.
THOREAU, JOURNAL (Nov. 11, 1850).
5
Although we could have invited amicus to address Flynn’s
petition, we directed the trial judge himself to respond.

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bona fide parties seek. 6 Even more telling of apparent
partiality, the trial judge ordered amicus to opine on whether
Flynn had committed perjury and should be held in criminal
contempt. Order Appointing Amicus Curiae at 1, United States
v. Flynn, No. 17-cr-00232 (D.D.C. May 13, 2020), ECF No.
205. That direction indicates that, even if compelled to grant
the motion to dismiss, the trial judge intends to pursue Flynn
on his own.
But it is the trial judge’s conduct since the government’s
May 2020 motion to dismiss, weighed in light of his earlier
conduct, that delivers the coup de grâce to the last shred of the
trial judge’s appearance of impartiality. In other words, if there
was any doubt up to this point whether his conduct gives the
appearance of partiality, that doubt is gone. Granted, the panel
majority opinion resisted Flynn’s request that a different judge
be assigned to this case. See In re Flynn, 961 F.3d at 1223.
That decision rested primarily on the fact that Flynn’s request
centered on the trial judge’s in-court statements, which are
almost always insufficient on their own to warrant
reassignment, and the fact that the trial judge was simply
directed to grant the government’s motion to dismiss. See id.
But the trial judge’s “extreme” conduct throughout this case,
culminating in his decision to ignore the writ and instead seek
en banc review, demonstrates a “clear inability to render fair
judgment.” United States v. Fokker Servs. B.V., 818 F.3d 733,
750 (D.C. Cir. 2016) (quoting Liteky v. United States, 510 U.S.

6

In fact, his appointment of amicus predated the panel’s May
21st direction to “address” Flynn’s mandamus petition. See Order
Appointing Amicus Curiae at 1, United States v. Flynn, No. 17-cr00232 (D.D.C. May 13, 2020), ECF No. 205.

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540, 551 (1994) 7); see also United States v. Microsoft Corp.,
56 F.3d 1448, 1463 (D.C. Cir. 1995).
Moreover, sister circuits have not been as nonchalant as
my majority colleagues regarding their obligation to ensure that
the appearance of impartiality remains inviolable. See, e.g.,
United States v. Whitman, 209 F.3d 619, 625–26 (6th Cir.
2000) (per curiam) (case reassigned on remand because “the
district judge’s lengthy harangue . . . create[d] the impression
that the impartial administration of the law was not his primary
concern”); Alexander v. Primerica Holdings, Inc., 10 F.3d
155, 164 (3d Cir. 1993) (mandamus granted and trial judge
disqualified because “observations made by [him] throughout
the conduct of the[] proceedings could well give rise to the
questioning of his impartiality”); Webbe v. McGhie Land Title
Co., 549 F.2d 1358, 1361 (10th Cir. 1977) (case reassigned on
remand because trial judge announced defendant was “stuck”
before hearing from defense counsel).
Lest we forget, at the center of this case is Michael
Flynn—a criminal defendant whom the government no longer
seeks to prosecute but who waits in limbo for his case to be
resolved. The trial judge has delayed his consideration of the
government’s unopposed motion to dismiss with little regard
for the time Flynn has spent, and continues to spend, under the
weight of now-abandoned criminal charges while the trial
judge appears to continue the fight to preserve an improper
role. 8 Notwithstanding the trial judge’s counsel’s blasé
7

In Liteky, the Supreme Court recognized that in-court conduct
can disqualify a judge if it “displayed deep-seated and unequivocal
antagonism that would render fair judgment impossible.” 510 U.S.
at 556.
8
The majority’s hair-splitting regarding whether the trial
judge’s invocation of Rule 35 made or did not make him a party in
the underlying criminal prosecution is a spectacular red herring.

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representation during oral argument, it is intolerable for
criminal charges to hang for months over the head of an
individual whom the government no longer wishes to
prosecute. See Transcript of Oral Argument at 145, In re
Flynn, No. 20-5143 (D.C. Cir. Aug. 11, 2020) (trial judge’s
counsel’s assertion that trial judge taking up to seven weeks to
hold hearing and then another month to issue decision in such
circumstances as Flynn’s “happens all the time in district
court”).
“Unbiased, impartial adjudicators are the cornerstone of
any system of justice worthy of the label.” In re Al-Nashiri,
921 F.3d at 233–34. If the trial judge continues to preside over
this case, I submit our system is not so worthy because his
conduct has undermined the appearance of impartiality. My
colleagues in the majority disagree and I am frankly dismayed
by their endorsement of the trial judge’s conduct, especially
after the government’s motion to dismiss. Granted, all
members of the en banc court weigh that conduct in light of
their own experience and notions of impartiality, while, at the
same time, applying § 455(a)’s “objective” standard of “a
reasonable and informed observer.” Microsoft Corp., 253 F.3d
at 114. Although, for them, the exact tipping point at which
the appearance of impartiality is lost is unknown, I am certain
that such a point exists and that the trial judge has passed it. To
protect Flynn’s rights as a criminal defendant, the
government’s interest in controlling its prosecution and the
integrity of the United States District Court for the District of
Majority Op. 16. That my colleagues can find no instance in which
a trial judge to whom a writ of mandamus is directed asserts authority
to appeal that writ is all that need be said to demonstrate how far
afield from the appearance of impartiality he has moved. Would the
majority give the same yawn if I petitioned the United States
Supreme Court for certiorari review of its opinion herein? Of course
not.

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Columbia, 9 I believe the trial judge, by his conduct manifesting
the appearance of glaring partiality, has disqualified himself. I
would order the reassignment of this case to a different trial
judge for dismissal.
Accordingly, I respectfully dissent.

9

The trial judge’s actions since the government’s motion to
dismiss was filed set a dangerous precedent. In the future, whenever
a writ of mandamus is sought under Rule 21, the subject trial judge
will be free to disregard the circumscribed role Rule 21(b)(4)
mandates and instead mount an all-out defense of his conduct. I
cannot think of an action more inimical to the appearance of an
impartial arbiter.

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RAO, Circuit Judge, with whom HENDERSON, Circuit
Judge, joins, dissenting: The Department of Justice has moved
to dismiss the criminal charges against General Michael Flynn,
but the district court insists on further factfinding to scrutinize
the motives and circumstances behind the Department’s
decision. While a district court plays a limited role in granting
“leave of court” to an unopposed motion to dismiss, it is long
settled that a district court cannot supervise the prosecutorial
decisions of the Executive Branch. In our system of separated
powers, the government may deprive a person of his liberty
only upon the action of all three branches: Congress must pass
a law criminalizing the activity; the Executive must determine
that prosecution is in the public interest; and the Judiciary,
independent of the political branches, must adjudicate the case.
The Constitution divides these powers in order to protect
individual liberty from a concentration of government
authority.
In Flynn’s case, the prosecution no longer has a prosecutor.
Yet the case continues with district court proceedings aimed at
uncovering the internal deliberations of the Department. The
majority gestures at the potential harms of such a judicial
intrusion into the Executive Branch, but takes a wait-and-see
approach, hoping and hinting that the district judge will not
take the actions he clearly states he will take. While mandamus
remains an extraordinary remedy, it is appropriate here to
prevent this judicial usurpation of the executive power and to
correct the district court’s abuse of discretion. I respectfully
dissent.
I.
The majority takes a superficially appealing position that
the district court must first decide the government’s motion to
dismiss before this court may grant a writ of mandamus. In the
ordinary course, this is how we proceed. Yet the facts here

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demonstrate a series of irregularities by the government and the
district court. We reserve the writ of mandamus for
extraordinary cases, and the circumstances in Flynn’s case are
nothing if not extraordinary.
Currently pending before the district court is the
government’s motion to dismiss the charges against Flynn
under Rule 48(a) of the Federal Rules of Criminal Procedure.
See FED. R. CRIM. P. 48(a) (“The government may, with leave
of court, dismiss an indictment, information, or complaint.”).
The Department of Justice (“DOJ” or “Department”) no longer
seeks to prosecute Flynn because it has determined that it
cannot sustain the charges and that prosecution would not be
in the public interest. See Gov’t Mot. Dismiss Crim. Info.,
United States v. Flynn, No. 17-232, ECF 198, at 2 (D.D.C. May
7, 2020) (“Motion to Dismiss Information”). In confessing its
error and mishandling of Flynn’s case, the Department details
the missteps of prosecutors and the Federal Bureau of
Investigation (“FBI”). A summary of the proceedings provides
important context for understanding Flynn’s petition for a writ
of mandamus.
In August 2016, the FBI began investigating Flynn as part
of a larger investigation into Donald Trump’s presidential
campaign and its connections to Russian officials. After four
months of investigation, the FBI determined that there was “no
derogatory information” related to Flynn and that the
investigation into his activities should be closed. Id. at 3–4
(internal citations omitted). Before the case was formally
closed, however, the FBI learned of phone calls between Flynn
and Russian Ambassador Sergey Kislyak that occurred in
December 2016—after Flynn was named the incoming
National Security Advisor for President-Elect Trump.

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Several FBI agents interviewed Flynn in the White House
on January 24, 2017. Id. at 8. By the time of the interview, the
agents already possessed transcripts of the calls and therefore
knew exactly what had been communicated. Nonetheless,
contrary to the wishes of Acting Attorney General Sally Yates
and ordinary FBI practice, the investigators declined to notify
the White House of what had been said on the calls before
interviewing Flynn. The FBI also failed to notify the
Department that it was proceeding with the interview on the
day in question. That the investigators were going outside the
chain of command was later admitted by FBI Director James
Comey, who noted that the FBI would not ordinarily “have
done or gotten away with” such conduct. Id. at 7. When the
agents met with Flynn, they failed to provide him with
transcripts of the calls or to warn him that making false
statements would be a crime. They also pressured him not to
bring his lawyer, telling him that if he wanted anyone else
present at the meeting, the FBI would have to elevate the matter
and bring it directly to the Department.
Flynn is alleged to have made several false statements
during the interview. At the time, however, the FBI agents who
questioned him—agents who possessed transcripts of Flynn’s
conversations with Kislyak—“had the impression … that
Flynn was not lying or did not think he was lying.” Id. at 9.
Nonetheless, Special Counsel Robert Mueller filed a criminal
information against Flynn months later, charging him with a
single count of making false statements under 18 U.S.C.
§ 1001(a)(2). Flynn pleaded guilty, and his plea was accepted
by the district court. A different district judge presided at
Flynn’s sentencing hearing. During the hearing, the district
judge expressed “disgust” and “disdain” for Flynn’s actions
and commented that Flynn arguably “sold [his] country out.”
App. 34:13–14; 22–23. The district judge also at one point
raised the question of whether Flynn could have been charged

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with treason. Later in the hearing, the district judge clarified
that he had not intended to “suggest[] [Flynn] committed
treason,” but simply wanted a better picture of the concessions
the government had made in offering Flynn a plea deal. Id. at
41:11–23.
The sentencing hearing was continued to permit Flynn to
conclude his cooperation with the government in accordance
with his plea deal. After retaining new counsel and filing a
series of discovery motions, on January 14, 2020, Flynn moved
to withdraw his guilty plea for a variety of reasons, including
that the government had failed to comply with its disclosure
obligations under Brady v. Maryland, 373 U.S. 83 (1963),1 and
that the government had breached the plea agreement by
seeking prison time. The motion to withdraw is still pending
before the district court.
On May 7, 2020, the Department filed a Rule 48(a) motion
to dismiss the charges against Flynn. The government
emphasized that Flynn’s statements were not material because
1

Flynn based this allegation on, among other things, the December
9, 2019, release of a 400-page Inspector General report and more
than 600 pages of additional FBI reports and agent notes allegedly
not previously disclosed. Def. Mot. to Withdraw, Flynn, No. 1:17cr-232, ECF No. 151, at 13 (D.D.C. Jan. 14, 2020). In its motion to
dismiss, the government admitted that it based its reassessment of
the facts and circumstances of Flynn’s prosecution in part on the
“newly discovered and disclosed information appended to the
defendant’s supplemental pleadings.” Motion to Dismiss
Information, at 2, 12 (citing ECF Nos. 181, 188–190). The
government also admitted that Flynn pleaded guilty “without full
awareness of the circumstances of the newly discovered, disclosed,
or declassified information as to the FBI’s investigation of him.” Id.
at 19.

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by the time of the January 24 interview, the FBI had already
concluded there was no legitimate basis to continue
investigating him. The transcripts of the phone calls “were
entirely appropriate on their face,” Motion to Dismiss
Information, at 13–14, which, along with the FBI’s shifting
justifications for his interview, “suggest[ed] that the FBI was
eager to interview Mr. Flynn irrespective of any underlying
investigation,” id. at 16. In light of the newly discovered
evidence, the government averred that it could not prove
beyond a reasonable doubt that Flynn’s statements were false.
The government concluded that “continued prosecution …
does not serve a substantial federal interest.” Id. at 2. Flynn did
not oppose the government’s motion.
The district court did not grant the unopposed motion to
dismiss. Instead, it “exercise[d] [the court’s] inherent authority
to appoint The Honorable John Gleeson (Ret.) as amicus curiae
to present arguments in opposition to the government’s Motion
to Dismiss.”2 Order Appointing Amicus Curiae, Flynn, No.

2

The majority alleges that neither Flynn nor the government
objected below to the appointment of Gleeson as an amicus. Maj.
Op. 7. While it is true that there were no objections specifically to
Gleeson’s appointment, Flynn had already raised—the day before
Gleeson’s appointment—a robust objection to amici generally. A
coalition of former prosecutors sought leave to file a brief as amicus
curiae, and on May 12, 2020, the district court issued a minute order
anticipating further amicus filings and notifying parties of its intent
to enter a scheduling order governing such submissions. Flynn
objected to the filing of a brief by the former prosecutors, as well as
the filing of any amicus briefs by third parties. Flynn Opp’n Mot. to
Intent to File, Flynn, No. 1:17-cr-232, ECF No. 204, at 5 (D.D.C.
May 12, 2020). Flynn maintained that in a criminal case it was
inappropriate for a third party to “usurp the role of the government’s
counsel,” and therefore it would violate the separation of powers if

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1:17-cr-232, ECF No. 205, at 1 (D.D.C. May 13, 2020). The
district court also directed Gleeson to “address whether the
Court should issue an Order to Show Cause why Mr. Flynn
should not be held in criminal contempt for perjury pursuant to
18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the
Court’s inherent authority, and any other applicable statutes,
rules, or controlling law.” Id.
Flynn filed an emergency petition for a writ of mandamus
requesting that this court order the district court to
immediately: (1) grant the Department’s motion to dismiss; (2)
vacate Gleeson’s appointment as amicus curiae; and (3)
reassign the case to a different district judge. Mandamus Pet.
2. The panel ordered a response from the district judge. See
D.C. CIR. R. 21(a). In his response, the district judge explained
that he sought a hearing and appointment of amicus to “fill the
adversarial gap to ensure full consideration of the issues,”
engage in a “factbound inquiry” about “whether Mr. Flynn
should be subject to any sanction” for changing his plea, and
“conduct investigations as necessary.” Sullivan Response 32–
35 (internal quotation marks omitted). The panel also invited
the government to respond, which it did in support of
mandamus. The panel granted the petition in part and directed
the district judge to grant the government’s Rule 48(a) motion
to dismiss. In re Flynn, 961 F.3d 1215, 1227 (D.C. Cir.), reh’g
en banc granted, order vacated, No. 20-5143, 2020 WL
4355389 (D.C. Cir. July 30, 2020). The panel did not, however,
order the case reassigned to a different judge. Id. at 1223. The
district judge declined to comply with the writ and instead
petitioned the en banc court for rehearing, citing Rule 35. The
court granted rehearing “[u]pon consideration of the petition
the district court allowed a third party to “stand in the place” of the
prosecutor. Id. at 2.

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for rehearing en banc” that the district judge filed through
retained counsel. Order, In re Michael T. Flynn, No. 20-5143
(D.C. Cir. July 30, 2020).3
II.
Although mandamus is an extraordinary remedy, the writ
exists for courts of appeals to prevent “judicial usurpation of
3

As Judge Henderson notes, the district judge’s decision to seek
rehearing en banc—an action reserved for “[a] party” to a
proceeding, see FED. R. APP. P. 35(b)—raises several unsettled,
threshold questions. See Dissenting Op. 1–2 (Henderson, J.). The
government specifically questioned whether a district judge is a
“party” for the purposes of Rule 35(b); whether a district judge may
petition for rehearing in a mandamus case when he was not “invited
or ordered to do so by the court of appeals,” FED. R. APP. P. 21(b)(4);
and whether a district judge may seek rehearing without receiving
authorization from the Solicitor General. See U.S. Response to En
Banc Pet. 15–16. These appear to be questions of first impression, as
the parties can identify no example of a district judge successfully
seeking rehearing en banc from a writ of mandamus. The majority
avoids these questions by now stating that we granted rehearing sua
sponte, although the court’s order made no reference to acting sua
sponte. Dissenting Op. 2–3 & n.3 (Henderson, J.). Moreover, while
we have the authority to grant rehearing sua sponte, the action here
is inconsistent with this court’s established practice, which is to grant
rehearing sua sponte only “[i]n the absence of a request from a
party.” D.C. Circuit Handbook of Practice and Internal Procedures
60 (2019). The majority therefore should have first ascertained
whether the district judge is “[a] party” who is entitled to file a
petition for rehearing. If he is such a party, the majority should have
considered his petition directly, in accordance with our established
practice, which would have required addressing the threshold
questions identified by the government, rather than sweeping them
under the rug. As rehearing en banc was also granted without
additional briefing, I do not address these novel questions here.

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power, or a clear abuse of discretion,” such as an action that
“would threaten the separation of powers by embarrassing the
executive arm of the Government.” Cheney v. U.S. Dist. Court
for D.C., 542 U.S. 367, 380–81 (2004) (citing Ex parte Peru,
318 U.S. 578, 588 (1943)) (cleaned up). We use the writ to
prevent future errors by trial courts and to correct judicial
excesses that could have far reaching consequences.4 See In re
Hillary Rodham Clinton & Cheryl Mills, No. 20-5056, slip. op.
at 19 (D.C. Cir. Aug. 14, 2020) (citing, inter alia, In re Kellogg
Brown & Root, Inc., 756 F.3d 754, 763 (D.C. Cir. 2014) and
Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C. Cir.
1975)). For mandamus to issue under the All Writs Act,5 “three
conditions must be satisfied: (i) the petitioner must have ‘no
other adequate means to attain the relief he desires’; (ii) the
petitioner must show that his right to the writ is ‘clear and
4

The majority places limitations on the mandamus standard that are
inconsistent with Supreme Court and circuit precedent by asserting
categorically that “the writ cannot be used ‘to actually control the
decision of the trial court.’” Maj. Op. 6 (quoting Platt v. Minn.
Mining & Mfg. Co., 376 U.S. 240, 245 (1964)) (alteration omitted).
This contention directly contradicts the Supreme Court’s more recent
holding in Cheney, which stated that mandamus is appropriate when
a court of appeals finds “a clear abuse of discretion.” 542 U.S. at 390
(cleaned up). The majority’s categorial rule also runs headlong into
our recent decision in In re Hillary Rodham Clinton & Cheryl Mills,
where we held that the district court abused its discretion and then
we effectively controlled the decision of the trial court by granting
former Secretary of State Clinton’s petition for mandamus and
“directing the district court to deny Judicial Watch’s request” for
depositions. No. 20-5056, slip op. at 5–6 (D.C. Cir. Aug. 14, 2020)
(citations omitted).
5

The All Writs Act authorizes federal courts to “issue all writs
necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C. § 1651.

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indisputable’; and (iii) the court ‘in the exercise of its
discretion, must be satisfied that the writ is appropriate under
the circumstances.’” United States v. Fokker Servs. B.V., 818
F.3d 733, 747 (D.C. Cir. 2016) (quoting Cheney, 542 U.S. at
380–81).
Mandamus is appropriate in this case. First, the Executive
Branch has a clear and indisputable right to control the
initiation and dismissal of prosecutions. The “leave of court”
authority under Rule 48(a) is narrow and does not permit a
district court to countermand the Executive’s decision to
dismiss a prosecution.6 Fundamental principles of separation
of powers require that individuals be prosecuted only by
democratically accountable prosecutors, not by district judges
with life tenure. The district court’s actions here exceed the
proper judicial role and impair the Executive’s performance of
its prosecutorial functions. See Cheney, 542 U.S. at 380–82.
Second, the Executive Branch has no adequate alternative
remedy to mandamus. Even if the district court ultimately
6

Although the majority suggests that it might be improper to
consider harms to the government, Maj. Op. 9–10, our court has
rejected the formalist argument that the government must “file a
separate petition for mandamus” before we may consider its
irreparable harms, Cobell v. Norton, 334 F.3d 1128, 1140 n.* (D.C.
Cir. 2003). It was therefore appropriate to credit the government’s
interests once it chose to support the petition. Moreover, Flynn
properly raised constitutional harms arising from the judicial
usurpation of executive power. Cf. Bond v. United States, 564 U.S.
211, 222 (2011) (explaining that “[t]he structural principles secured
by the separation of powers protect the individual” and “the claims
of individuals—not of Government departments—have been the
principal source of judicial decisions concerning separation of
powers”).

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grants the motion to dismiss, that would not alleviate the harms
resulting from the supervision and inquisition delineated by the
district court in its orders and briefing. As we have previously
recognized, such an infringement upon the Executive’s
charging authority “inflicts an ‘irreparable injury’” for which
an appeal is not an adequate alternative remedy. Fokker Servs.,
818 F.3d at 749 (quoting In re al-Nashiri, 791 F.3d 71, 79
(D.C. Cir. 2015)). Forestalling such irreparable harm to the
Executive Branch makes mandamus appropriate here because
the district court has adopted a flawed view of its authority in
a manner that infringes on the exclusive constitutional powers
of a separate and independent branch of government.
In denying the writ of mandamus, the majority relies only
on its determination that Flynn and the Executive Branch have
adequate alternative remedies, namely the eventual grant of the
motion, the possibility of appeal, or even a writ of mandamus
at some unspecified later time. Maj. Op. 7. The majority does
not explain how these remedies would repair unlawful
incursions on the Executive Branch. Instead, the majority
dodges the constitutional questions by simply asserting a
truism applicable to every mandamus case—a party could wait
for an appeal or even a later mandamus petition. The ordinary
availability of appeal does not relieve this court of its duty to
examine the specific factual context of each mandamus petition
and the precise irreparable harm alleged. We have no metric
for judging the adequacy of alternative remedies without
assessing the underlying harm—our cases demonstrate that the
mandamus inquiry is holistic and its three prongs intertwined.
Nevertheless, the majority remains content with
prospective remedies and sidesteps harms to the Executive.
Our mandamus inquiry requires more than this piecemeal
approach, particularly when grave separation of powers
concerns are at stake. Judicial encroachments on the executive

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power cannot be remedied simply by requiring the Executive
to submit to a district court’s supervision and then seek appeal.
Mandamus is appropriate here.
A.
When reviewing a mandamus petition alleging harms to the
Executive Branch, we often begin by analyzing whether the
district court “overstepped its authority” in a manner that
infringed on the Constitution’s separation of powers. See
Fokker Servs., 818 F.3d at 740–47. Therefore, I first consider
whether Flynn and the government have established a clear and
indisputable right to the writ. To meet the standards for
mandamus, they must demonstrate “the district court’s
decision constitutes a clear legal error,” id. at 749 (citations and
quotation marks omitted), such as a “judicial usurpation of
power … or a clear abuse of discretion,” Cheney, 542 U.S. at
390 (citations and quotation marks omitted). Here, clear legal
error infects the proceedings below, which are shot through
with improper judicial efforts to superintend the Executive
Branch’s prosecuting decisions. The harms are far from
speculative, as the majority concludes, but instead are clearly
laid out in the actions and representations of the district court.
Such interference with the Executive Branch’s decisionmaking
is a judicial usurpation of power as well as an abuse of
discretion under Rule 48(a).
The basic constitutional framework provides context for
understanding how the district court’s actions encroach on the
executive power. At the outset, it is long established that the
Executive Branch has the exclusive authority to initiate and
halt prosecutions. The Constitution vests the Executive with
the independent and unreviewable authority to decline to
pursue criminal charges. See, e.g., ICC v. Bhd. of Locomotive
Eng’rs, 482 U.S. 270, 283 (1987) (“[I]t is entirely clear that the

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refusal to prosecute cannot be the subject of judicial review.”);
United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he
Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case.”) (citations
omitted); Confiscation Cases, 74 (7 Wall.) U.S. 454, 458
(1868); see also Heckler v. Chaney, 470 U.S. 821, 831 (1985).
Under Article II, the President ultimately decides “whether to
initiate charges, whom to prosecute, which charges to bring,
and whether to dismiss charges once brought,” and “[i]t has
long been settled that the Judiciary generally lacks authority to
second-guess those Executive determinations.”7 Fokker Servs.,
7

This fundamental separation of powers between the Judiciary and
the Executive is well recognized in our sister circuits as well. See,
e.g., United States v. HSBC Bank USA, 863 F.3d 125, 137 (2d Cir.
2017) (“[A] federal court has no roving commission to monitor
prosecutors’ out-of-court activities just in case prosecutors might be
engaging in misconduct.”); In re United States, 791 F.3d 945, 958
(9th Cir. 2015) (“[I]nterference … risks … intruding upon the
traditional prerogatives of the political branches. Courts should not
risk becoming monitors of the wisdom and soundness of Executive
action.”) (cleaned up); In re United States, 503 F.3d 638, 641 (7th
Cir. 2007) (“[A] judicial effort to supervise [a prosecutor’s] process
of reaching a decision intrudes impermissibly into the activities of
the Executive Branch of government.”); id. (“Judges in the United
States resolve the parties’ disputes rather than initiate their own
factual inquiries on issues that the parties have not contested; that’s
a major difference between adversarial and inquisitorial systems.”);
In re United States, 398 F.3d 615, 618 (7th Cir. 2005) (“How the
United States reaches its litigating positions, who said what to whom
within the prosecutor’s office, and so on, are for the Attorney
General and the President to evaluate.”); id. (“The fundamental
problem with this inquiry [into the motivations and decisionmaking
of prosecutors] is that the United States Attorney is not answerable
to a judge for the deliberations among his staff … [Judges’]
temptation [to intrude] must be resisted in order to maintain

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818 F.3d at 737. “The Presidential power of prosecutorial
discretion is rooted in Article II, including the Executive Power
Clause, the Take Care Clause, the Oath of Office Clause, and
the Pardon Clause.” In re Aiken Cnty., 725 F.3d 255, 262 (D.C.
Cir. 2013) (Kavanaugh, J., concurring). Under Article II,
criminal charging decisions rest exclusively with the Executive
Branch. This authority extends to all phases of trial: The
President may decline to bring charges, dismiss charges once
brought, or pardon offenders. Id. at 262–66 (collecting cases).
By contrast, the Article III judicial power includes no
authority to initiate, pursue, or oversee decisions to prosecute.
As the Supreme Court recently admonished, “courts are
essentially passive instruments of government. They do not, or
should not, sally forth each day looking for wrongs to right.
They wait for cases to come to them.” United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (cleaned up).
The judicial power includes the ability to adjudicate guilt and
issue a sentence upon conviction. See Young v. U.S. ex rel.
Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J.,
concurring in the judgment) (“The judicial power is the power
to decide, in accordance with law, who should prevail in a case
or controversy. See Art. III, § 2. That includes the power to
serve as a neutral adjudicator in a criminal case, but does not
include the power to seek out law violators in order to punish
them.”). The Article III courts have no power to make
prosecutorial decisions. And for good reason. Lacking in
political accountability to the people, judges have no mandate
to pursue justice by choosing whom to prosecute.8 If the public
separation between executive and judicial roles” and because “an
inquisitorial role [is] inappropriate to the Judicial Branch.”).
8

Moreover, courts have no institutional capacity to determine where
a particular prosecution fits into the broader scheme of law
enforcement. Many alleged crimes go without prosecution—

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disagrees with law enforcement decisions, it may hold the
President and his Attorney General accountable. When the
Executive declines to bring a prosecution, the court has no
power to force a different result, a reality reinforced by the
pardon power, U.S. CONST. art. II, § 2, which provides the
President an unreviewable power to pardon individuals before
trial, after conviction, or anytime in between. Ex parte
Grossman, 267 U.S. 87, 120 (1925).9
It is against this constitutional backdrop that district courts
must apply the “leave of court” requirement in Rule 48(a). All
agree that the district court need not be a rubber stamp, but
similarly, the district court cannot second-guess the
prosecutorial decisions of the Executive Branch or force the
Executive to maintain a prosecution it wishes to halt. These
“settled constitutional understandings,” Fokker Servs., 818
F.3d at 741, establish that Rule 48(a)’s “leave of court”
requirement “confers no new power in the courts to scrutinize
and countermand the prosecution’s exercise of its traditional
authority over charging and enforcement decisions,” id. at 743.
Nothing in the text of Rule 48(a) “purports to deprive the
Executive Branch of its historical prerogative to decide which
cases should go forward in the name of the United States.”
Swift v. United States, 318 F.3d 250, 253 (D.C. Cir. 2003).

decisions must be made about the available evidence, the likelihood
of a successful prosecution, the claims of justice compared to other
similar crimes, and many other considerations. See Wayte v. United
States, 470 U.S. 598, 607 (1985).
9

“[A] judge could not possibly win a confrontation with the
executive branch over its refusal to prosecute, since the President has
plenary power to pardon a federal offender, U.S. Const. art. II, § 2,
cl. 1—even before trial or conviction.” In re United States, 345 F.3d
450, 454 (7th Cir. 2003).

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Indeed, no appellate court has upheld a district court’s denial
of an unopposed Rule 48(a) motion, nor a decision appointing
an outside attorney to probe whether the Executive Branch’s
dismissal is in the public interest.
The Judiciary’s role under Rule 48(a) is thus confined to
“extremely limited circumstances in extraordinary cases.”
United States v. Hamm, 659 F.2d 624, 629 (5th Cir. 1981);
United States v. Ammidown, 497 F.2d 615, 621 (D.C. Cir.
1973) (emphasizing that Rule 48(a) motions must be granted
“in the overwhelming number of cases”). Because “leave of
court” is designed “to protect a defendant against prosecutorial
harassment,” Fokker Servs., 818 F.3d at 742 (quoting Rinaldi
v. United States, 434 U.S. 22, 29 n.15 (1977)), Rule 48(a)
permits only a circumscribed judicial role in the context of an
unopposed motion to dismiss. Further judicial inquiry may be
appropriate only if there is clear evidence of “bribery, animus
towards the victim, or a desire to attend a social event rather
than a trial—in other words, bad faith,” HSBC Bank USA, 863
F.3d at 141 (citation and quotation marks omitted), or if it
appears that a federal prosecutor is “acting alone rather than at
the direction or with the approval of the Justice Department,”
In re United States, 345 F.3d at 454. Our precedent prohibits a
district court’s involvement in the Executive’s exercise of
prosecutorial discretion by scrutinizing, overseeing,
countermanding, or second-guessing the Executive’s
considered judgment that the dismissal of criminal charges is
in the public interest. Fokker Servs., 818 F.3d at 741, 743, 744.
The majority retreats from any consideration of these
bedrock principles by focusing exclusively on the fact that the
district court has not yet concluded its proceedings. But we
need not reach the end of those proceedings to recognize and
provide a remedy for the ongoing harm to the Executive
Branch. Whatever the scope of “leave of court” in Rule 48(a),

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this authority does not encompass the wide-ranging inquiry set
in motion by the district court, an inquiry that includes
expansive factfinding to probe the internal decisionmaking of
the Department. The majority maintains this is merely the
“ordinary course.” Maj. Op. 12. Yet the following actions and
representations demonstrate that the district court’s
proceedings are anything but ordinary and the Executive
Branch harms far from speculative:


The district court appointed as amicus John Gleeson, after
Gleeson had just written an op-ed arguing the
government’s Rule 48(a) motion “reeks of improper
political influence” and advocating for the district court to
hold “a full, adversarial inquiry,” including “hearings to
resolve factual discrepancies.” Gleeson also suggested that
the district court “compel the department to reveal … the
actual evidence underlying the prosecution,” and “order[]
disclosure of” Executive Branch materials. John Gleeson,
et al., Opinion, The Flynn Case Isn’t Over Until the Judge
Says It’s Over, WASH. POST, May 11, 2020.



After granting Gleeson’s motion to hold a proceeding
examining, inter alia, “any additional factual development
[Gleeson] may need before finalizing [his] argument in
opposition to the government’s motion,” Mot. of Amicus
Curiae, Flynn, No. 1:17-cr-232, ECF 209, at 1 (D.D.C.
May 15, 2020), the district court established a briefing and
hearing schedule, Minute Order, Flynn, No. 1:17-cr-232
(D.D.C. May 19, 2020).



Gleeson asked the district court to probe the government’s
motives for dismissing the case, affirmatively find the
given reasons pretextual, and examine outside evidence—
including presidential tweets and DOJ filings in other
cases—to determine that the government acted in bad

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faith.10 Br. for Amicus Curiae, Flynn, No. 1:17-cr-232,
ECF 225, at 26, 32–34, 38–39, 40–45, 57–59 (D.D.C. June
10, 2020),


Gleeson also asked the court to consider the “background
of a severe breakdown in the traditional independence of
the Justice Department from the President” and to find that
“[e]verything about this is irregular.” Id. at 57, 59.



In response to the petition for mandamus, the district judge
asserted that he must resolve several factual questions and
“inquir[e] into the facts set forth in, and surrounding, the
government’s filing,” and determine whether these facts
“provide reason to question the presumption of regularity
that ordinarily attaches to prosecutorial decisions.”
Sullivan Panel Br. 1–2 (cleaned up).



The district judge further maintained that he will require
additional information about why “[t]he motion did not
explain the absence of any line prosecutors, including those
who had previously prosecuted the case … [or] contain any
declarations or affidavits from witnesses with personal
knowledge supporting the government’s new factual
representations”; why “the motion does not mention Mr.
Flynn’s March 2017 false statements to DOJ relating to his

10

Relying on counsel for the district judge, the majority states that
amicus “does not seek discovery or an evidentiary hearing.” Maj.
Op. 11. This overlooks what the amicus brief says, which is that the
district court should conduct extensive factfinding into the motives
and decisionmaking of the Department. Br. for Amicus Curiae,
Flynn, No. 1:17-cr-232, ECF 225, at 49–60 (D.D.C. June 10, 2020).
Perhaps amicus does not specifically seek discovery to support his
opposition to the government’s motion; however, amicus
unmistakably advocates for detailed factfinding by the district court.

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work for Turkey, which … were relevant conduct for his
guilty plea”; and why “the government has not moved to
withdraw any of its prior pleadings in the case, including
its sentencing memoranda, or any of the representations it
previously made in open court regarding the purported
materiality of Mr. Flynn’s false statements.” Id. at 15–16.


The district judge also suggested that he will make “[a]
finding” regarding whether “the Government’s later efforts
to terminate the prosecution were … tainted with
impropriety” and that he “can—and arguably must”
“question the bona fides of the government’s motions.” Id.
at 28–29 (cleaned up).



The district judge will use the proceedings to determine
“unanswered questions of fact”; to “resolve some of the
factual and legal questions that remain outstanding”; “to
inquire whether the government maintains its factual
representations that Mr. Flynn is guilty as to those false
statements”; and to “illuminat[e] the full circumstances
surrounding the proposed dismissal and the government’s
current position on Mr. Flynn’s conduct.” Sullivan Panel
Reply 1, 10–12.



In his petition for rehearing en banc, the district judge
asserted he has the authority to “develop[] [his] own record
of the prosecution’s charging decisions” and “confront[]
government attorneys with their statements during trial that
undermine[] their motion to dismiss.” En Banc Pet. 6–7
(citations and quotation marks omitted).



The district judge also stated he will use the proceedings to
go beyond the four corners of the government’s motion to
dismiss because “it is hard to imagine that such

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‘malfeasance’ would be apparent on the face of the
government’s motion.” Id. at 13 n.2.
These proceedings and representations make clear the
breadth and depth of the district judge’s inquiry, which
includes factual development of DOJ’s motives and internal
decisionmaking. The district judge has stated that he will look
outside the government’s motion to search for evidence that the
presumption of regularity has been overcome. But this is to
give the government no presumption of regularity at all. As we
recently explained in granting a writ of mandamus to former
Secretary of State Hillary Clinton, “[t]he mere suspicion of bad
faith on the part of the government” cannot overcome the
presumption of good faith. In re Hillary Rodham Clinton, No.
20-5056, slip. op. at 12. The district judge identifies nothing on
the face of the government’s motion to dismiss that overcomes
the presumption of regularity to which the Executive is
entitled. Nor does the district judge offer any evidence of
bribery, animus, or other similar reasons for digging into the
internal workings of the Executive Branch.
The majority does not address the substance of the district
court’s proceedings or the clear representations about the scope
of inquiry, asserting only that “it is simply not the case that the
Executive will be irreparably harmed by the procedures
ordered by the District Court.” Maj. Op. 9. To reach this result,
the majority relies heavily on counsel’s assurances at oral
argument that the district judge probably will not engage in
factfinding and may grant the motion to dismiss. Maj. Op. 7,
11–12. But these tentative assurances are plainly contradicted
by the district judge’s actions as well as his representations in
multiple briefs before this court.11 Counsel’s remarks at oral
11

The majority notes that counsel for the district judge states there is
uncertainty about the proceedings and that the district judge “has not

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argument cannot make speculative the
representations in the district judge’s briefs.

many

clear

While it is at least irregular for a district judge to retain
counsel in responding to a mandamus petition, see Dissenting
Op. 6 (Henderson, J.), it is even more peculiar for the majority
to credit counsel’s representations at oral argument as evidence
that the contemplated harms are speculative. It is unclear to
what extent counsel can make concessions regarding the future
proceedings of an independent Article III judge. This is just
another reason the majority would do better to rely on the
district judge’s statements in his orders and briefs when
assessing the harms of the proceedings. By shutting its eyes to
the irreparable harms and failing to pronounce as improper this
probing inquisition, the majority emboldens the district court
to make good on its pledge to superintend and fact check the
Executive.
We simply have no basis for assuming, as the majority
does, that the proceedings will steer clear of the elaborate
factfinding and evidence gathering process aimed at
uncovering “malfeasance” by the Department. The district
court candidly states the scope of its inquiry, but that inquiry
goes too far because a court may not “deny a prosecutor’s Rule
48(a) motion to dismiss charges based on a disagreement with
the prosecution’s exercise of charging authority.” Fokker
Servs., 818 F.3d at 742. Yet this type of disagreement appears
to be animating the district court’s contemplated proceedings,
complete with developing a factual record and scrutinizing the
government’s motives and decisionmaking. The actual
determined what questions, if any, he may have after reviewing the
briefs.” Maj. Op. 11 & nn.4–5. Yet the district judge’s filings belie
counsel’s statements and in fact set out numerous specific questions
to be answered in the proceedings. See supra 16–19.

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proceedings may be a “still-unfolding process,” Maj. Op. 10,
but the content of the process has been clearly delineated. The
harms occur from subjecting the Executive to this judicial
inquiry because a district court has no authority to oversee or
to superintend the prosecutorial decisions of the Executive
Branch. See Fokker Servs., 818 F.3d at 741 (noting “systemic
costs” of judicial supervision over prosecutions) (quoting
Wayte, 420 U.S. at 608).
In reaching this conclusion, I note that it takes nothing from
the substantial judicial power to recognize that a single district
court cannot step into the shoes of the Attorney General. As
John Marshall explained, “[T]he nation may at will stop [a]
prosecution. In this respect the President expresses
constitutionally the will of the nation; and may rightfully …
direct that the criminal be prosecuted no farther. This is no
interference with judicial decisions, nor any invasion of the
province of a court. It is the exercise of an indubitable and
Constitutional power.” See 6 ANNALS OF CONG. 615 (1800). To
state what should be obvious, finding a harm justifying
mandamus is not a commentary on the wisdom of the
Department’s prosecutorial decisions regarding Flynn. Rather,
a grant of mandamus in this case would recognize that the
district court abused its discretion and usurped the Executive
Branch’s exclusive constitutional power to dismiss a
prosecution.
B.
The majority does not grapple with these harms, but instead
argues that Flynn and the government have an adequate
alternative remedy, namely, pursuing relief after the district
court decides the motion to dismiss. The majority establishes a
novel and effectively categorical rule that “a petition for
mandamus filed in anticipation of a district court argument is

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almost invariably premature.” Maj. Op. 11. Such a rule,
however, flies in the face of Supreme Court and circuit
precedent, which recognize that a writ of mandamus must issue
when a district court sets out a course that will result in an
unwarranted intrusion on the Executive Branch, irrespective of
whether the district court has already held a hearing or decided
a particular motion. The majority maintains that appeal is an
adequate alternative remedy only by disregarding the harms to
the Executive Branch. The mandamus standard, however,
treats the harm and adequate remedy as two sides of the same
coin.
Upon finding a district court has encroached on the
executive power, we have granted mandamus as a matter of
course, even if it stymied further proceedings, factfinding, or
discovery by the district court. For instance, in In re Cheney,
we noted that the district court had not yet ruled on a motion to
dismiss, but we nonetheless granted partial mandamus to
modify a discovery order to prevent “interrupt[ion]” of “[t]he
duties of high-ranking executive officers.” 544 F.3d 311, 314
(D.C. Cir. 2008). Similarly, in In re Sealed Case No. 98-3077,
we held that a district court’s “procedural orders” subjecting
the independent counsel to “discovery and an adversarial
hearing” would cause irreparable injury to the government. 151
F.3d 1059, 1065 (D.C. Cir. 1998). Because the discovery
period and hearing would “divert petitioner’s focus … from
directing the grand jury investigation at a crucial juncture,” id.
at 1066, this court granted the independent counsel’s petition
and vacated “the procedural aspects of the district court’s
orders,” id. at 1077.
Likewise, in Cobell, we held that mandamus was
appropriate to vacate the appointment of a “court monitor” to
oversee the Department of the Interior’s compliance with a
court order. 334 F.3d at 1139–40. We concluded that the

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district court had no inherent authority to make such an
appointment over the government’s objection that “the
appointment violated the separation of powers.” Id. at 1141–
42. Finally, in Nixon v. Sirica, this court held that separation of
powers concerns could justify mandamus even if “direct
appeal” was available “as an alternative basis for review.” 487
F.2d 700, 707 & n.21 (D.C. Cir. 1973). The court held that
appeal after judgment or non-compliance with an order was not
adequate because the “central question that the President
raises—whether the District Court exceeded its authority in
ordering an in camera inspection of the tapes—is essentially
jurisdictional.” Id. at 707. Thus, waiting for direct appellate
review was “a clearly inadequate remedy” because the
Executive need not submit to actions beyond the district court’s
jurisdiction. Id. (quoting Bankers Life & Cas. Co. v. Holland,
346 U.S. 379, 385 (1947)). The majority is simply wrong that
we have never issued the writ before a district court has
concluded its proceeding.
In the face of alleged incursions on the executive power,
the irreparable harm inquiry focuses on the substance of the
district court’s actions, not the timing of whether it has ruled
on a motion. Here, the district court’s actions substantially
harm the Executive. Although the government and Flynn both
support the motion to dismiss, the district court contemplates
an adversarial hearing, with amicus appointed to maintain a
manufactured adversity in a criminal prosecution. See Maj. Op.
12 (noting that district court “appointed amicus to ensure
adverse presentation of the issues”).12 Cf. In re Sealed Case No.
12

The majority finds no intrusion into the executive power with the
appointment of amicus in part because the Supreme Court sometimes
uses amici to assist “in similar circumstances, including in criminal
cases and even when the movant is the government.” Maj. Op. 10.
Yet the only cases cited by the majority are inapposite because they

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98-3077, 151 F.3d at 1065–66. Moreover, the district court
asserted an “inherent authority” to appoint the amicus, Order
Appointing Amicus Curiae, Flynn, No. 1:17-cr-232, ECF No.
205, at 1 (D.D.C. May 13, 2020), but in Cobell we explained
that “[a] judicial claim to an ‘inherent power’ is not to be
indulged lightly, lest it excuse overreaching ‘[t]he judicial
Power’ actually granted to federal courts by Article III of the
Constitution of the United States, and the customs and usages
that inform the meaning of that phrase,” 334 F.3d at 1141. The
district court’s pursuit of additional facts outside the motion to
dismiss is analogous to an overbroad discovery order, because
the district court seeks disclosure of information to which it is
not entitled—such as information about the Executive
Branch’s internal decisionmaking process.13 Although the
usual rule for contested discovery orders is to disobey them and
then appeal any adjudicated contempt, In re Sealed Case No.
98-3077, 151 F.3d at 1063–66, we have frequently held that
mandamus may be justified in those cases where such a process

involve appointment of amici to address a purely legal question
defending the constitutionality of a statute. Id. (citing Dickerson v.
United States, 530 U.S. 428, 441 n.7 (2000), and Pepper v. United
States, 562 U.S. 476, 487 (2011)). In this case, however, amicus was
not retained to present purely legal arguments, but to oppose the
government’s motion to dismiss and the exercise of prosecutorial
discretion at the heart of that motion.
13

As the Acting Solicitor General noted at oral argument, the internal
decisionmaking process could have included information not
presented to the district court. “I just wanted to make clear that it
may be possible that the Attorney General had before him
information that he was not able to share with the court. And so what
we put in front of the court were the reasons that we could, but it may
not be the whole picture available to the Executive Branch.” Oral
Arg. Tr. at 64:11–16.

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would not be an appropriate remedy, cf. In re Hillary Rodham
Clinton, No. 20-5056, slip op. at 7–8.14
The majority appears to recognize that the district court’s
“disposition” or “other order” could intrude upon the
Executive, and if such harm occurs, the Executive has the
“possibility of future mandamus relief.” Maj. Op. 12. The
majority’s reasoning suggests that mandamus later is an
adequate remedy to mandamus now. But the district court has
already taken actions that, in the government’s view, “violate
the separation of powers.” Id. It is not clear what precise harm
the majority is waiting for or what more the Executive would
have to allege. Counsel for the district judge suggested that if
the hearing focuses on impermissible factfinding, the
government could raise objections and even seek appellate
review then, including presumably before the district court’s
final decision on the motion to dismiss. Oral Arg. Tr. at 123–
125; 142–145.
But the Executive need not resort to multiple mandamus
petitions to challenge each separate intrusion during a process
of factfinding. Instead, the Supreme Court has made clear that
mandamus can and should issue before a proceeding spirals out
of control. In Cheney, the Supreme Court rebuked this court for
downplaying “the burden that would arise from the District
14

See also In re Kellogg, 756 F.3d at 761 (noting that “forcing a party
to go into contempt is not an ‘adequate’ means of relief” when the
information is potentially privileged) (citing In re Sealed Case No.
98-3077, 151 F.3d at 1064–65); In re SEC ex rel. Glotzer, 374 F.3d
184, 187–88 (2d Cir. 2004) (observing that “there is a marked
difference between requiring a private litigant to submit to a
contempt order before seeking appellate relief and requiring
executive agency officials to do so”).

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Court’s insistence that the Vice President winnow the
discovery orders by asserting specific claims of privilege and
making more particular objections.” 542 U.S. at 389 (citations
omitted). Postponing mandamus to allow an intrusive hearing
process to play out leaves the Executive with the “sole option”
of asserting piecemeal objections and sets the “coequal
branches of the Government … on a collision course.” Id. The
path cleared by the majority will force the Executive to make
specific objections to each question or request for further facts
about the Department’s internal decisionmaking—questions
the district court steadfastly maintains are necessary. This
approach places courts “in the awkward position of evaluating
the Executive’s claims of confidentiality and autonomy” and
“balancing the need for information in a judicial proceeding
and the Executive’s Article II prerogatives.” Id. The All Writs
Act mandamus was designed to prevent such “constitutional
confrontation[s]” between the Judiciary and the Executive. Id.
at 389–90 (cleaned up).
Wishful waiting cannot forestall the irreparable harm to the
Executive Branch. Because there are no adequate alternative
means to prevent judicial incursions on the executive power—
harms that also directly impact the individual liberty of
Flynn—mandamus must issue.
C.
Finally, we must determine whether, in the exercise of our
discretion, issuance of the writ “is appropriate under the
circumstances.” Id. at 381 (citing Kerr v. U.S. Dist. Court for
N. Dist. of Cal., 426 U.S. 394, 403 (1976)). Mandamus under
the All Writs Act is understood as a supervisory and
discretionary power. The final prong of the Cheney test rests in
part on our judgment and requires us to look at the “totality of
the circumstances.” In re Hillary Rodham Clinton, No. 20-

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5056, slip op. at 19. Because the district court’s actions indicate
a superintendence of prosecutorial discretion that goes beyond
the judicial power and any reasonable inquiry to grant “leave
of court” under Rule 48(a), issuing the writ at this juncture is
appropriate. See Cheney, 542 U.S. at 382 (“Accepted
mandamus standards are broad enough to allow a court of
appeals to prevent a lower court from interfering with a coequal
branch’s
ability
to
discharge
its
constitutional
responsibilities.”) (citing Ex parte Peru, 318 U.S. at 587).
Upon a finding of irreparable harm to the Executive, we
readily conclude that mandamus is appropriate, often without
further analysis. See Fokker Servs., 818 F.3d at 750. Because
the majority does not grapple with the harms to the
government, it also glosses over the appropriateness of
mandamus. While our cases rarely discuss this prong in detail,
our recent decision granting a writ of mandamus to Clinton
provides an instructive discussion of the appropriateness
analysis. We explained the appropriateness of issuing
mandamus when necessary to prevent trial courts from
committing similar errors in the future. In re Hillary Rodham
Clinton, No. 20-5056, slip op. at 19. We found it relevant that
the district court had a “deeply flawed view” of the law,
specifically, the Freedom of Information Act (“FOIA”) and
Rule 26, and had issued a discovery order that “traveled far
afield from the narrow issue” in the case. Id. at 20. We further
explained that the district court “may not order discovery to
probe any subject that piques curiosity,” id., and that “mere
speculation” about the existence of certain materials could not
support the further discovery ordered by the district court, id.
at 21 (cleaned up). Although the majority attempts to
distinguish our recent decision from the case at bar, nearly
identical considerations make mandamus appropriate for
Flynn—indeed, even more appropriate because the harms at
stake involve the individual liberty of a criminal defendant and

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the constitutional prerogatives of the Executive Branch, rather
than a discovery request made in civil FOIA litigation.
To begin with, there can be little question that the district
court must ultimately grant the government’s motion to
dismiss. “In fact, it would be highly unusual if it did not, given
the Executive’s constitutional prerogative to direct and control
prosecutions and the district court’s limited discretion under
Rule 48(a).” Concurring Op. 2 (Griffith, J.). If the district court
denies the government’s request, this case will be in exactly the
same posture as Fokker Services, where we granted mandamus
to “correct” the district court’s intrusion on the Executive
Branch’s prosecutorial discretion. 818 F.3d at 747. For the
district court to deny the motion would be unprecedented: No
party has been able to identify a case in which a court of
appeals has upheld the denial of an unopposed Rule 48(a)
motion, and the circumstances here hardly warrant a break
from this practice. The ultimate result is not in doubt, which
underscores the appropriateness of the mandamus remedy to
stop the intrusions into the Executive Branch. Cf. Cheney, 542
U.S. at 382 (“[T]he action of the political arm of the
Government taken within its appropriate sphere [must] be
promptly recognized, and … delay and inconvenience of a
prolonged litigation [must] be avoided by prompt termination
of the proceedings in the district court.”) (quoting Ex parte
Peru, 318 U.S. at 587).
Furthermore, speculation and “pique[d] curiosity” cannot
justify judicial supervision of the Executive Branch. In re
Hillary Rodham Clinton, No. 20-5056, slip. op. at 20. The
district court has pointed to nothing that overcomes the
presumption of regularity to which the government is entitled
regarding its motion to dismiss. Rather, by maintaining that it
must ferret out additional facts to uncover any “malfeasance,”
the district court has “traveled far afield,” id., from its limited

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role in reviewing unopposed motions to dismiss. Moreover, as
explained above, the district court here has advanced “a deeply
flawed view” of Rule 48(a) and the relevant constitutional
background. Id. Mandamus is thus appropriate to “forestall
future error in trial courts,” id. at 23 (citation and quotation
marks omitted), when considering unopposed motions to
dismiss under Rule 48(a). See also Fokker Servs., 818 F.3d at
750 (“In short, the novelty of the District Court’s … ruling,
combined with its potentially broad and destabilizing effects in
an important area of law, justify granting the government’s
petition for a writ of mandamus.”) (cleaned up). The majority’s
unwillingness to grapple with the manifest harms to the
Executive muddies our mandamus standards and the directions
we send to the district courts.
Mandamus is also appropriate to allow the Executive to
self-correct the myriad law enforcement and prosecutorial
errors the Department has candidly confessed. In its motion to
dismiss, the Department details problems with the
investigation and prosecution, including: the FBI’s reopening
of the investigation despite having found an “absence of any
derogatory information”; the lack of “a substantial federal
interest in penalizing a defendant for a crime that [the
government] is not satisfied occurred”; the lack of a properly
predicated investigation; the FBI’s rogue investigation
undertaken without DOJ approval; and the circumvention of
protocol in conducting Flynn’s White House interview. Motion
to Dismiss Information, at 3–12 (internal citations omitted).
Despite this parade of horribles in the prosecution of Flynn, the
district court speculates that perhaps the real “malfeasance”
might have occurred with the motion to drop the prosecution.
The essential judicial power to determine guilt and innocence
does not authorize a similarly vigorous role in granting “leave
of court” to dismiss a prosecution. To the contrary, in our
system of separated powers, the Judiciary has no inquisitorial

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role in maintaining prosecutions the Executive chooses to
dismiss.
Finally, the harms to Flynn also weigh in favor of the
appropriateness of the writ. The majority takes consolation in
the fact that Flynn is not “in confinement,” Maj. Op. 8, but
Flynn cites numerous harms stemming from protracted
litigation, including his continued submission to weekly
reporting requirements; the government’s custody of his and
his son’s property, including his passport; and his inability to
travel. I have focused my analysis on the harms to the
Executive Branch because our cases maintain that “the burdens
of litigation are normally not a sufficient basis for issuing the
writ.” In re al-Nashiri, 791 F.3d at 80. We have recognized,
however, that “at some point, even the temporary subjection of
a party to a Potemkin jurisdiction so mocks the party’s rights
as to render end-of-the-line correction inadequate.” United
States v. Microsoft Corp., 147 F.3d 935, 954 (D.C. Cir. 1998).
Our recent grant of mandamus to prevent the burden of sitting
for depositions of broad “scope and complete irrelevance,” In
re Hillary Rodham Clinton, No. 20-5056, slip op. at 9,
reinforces the appropriateness of mandamus for the far more
severe burdens on Flynn’s liberty from the proceedings before
the district court.
***
This case highlights the essential connection between the
Constitution’s structure of separated powers and the liberty
interests of individuals. While modern administrative
government often blurs the separation of powers, at least in
criminal cases courts have steadfastly policed the separation of
powers, ensuring that a criminal defendant may lose his liberty
only upon action by all three branches of the government. By
allowing the district court to scrutinize “the reasoning and

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motives” of the Department of Justice, En Banc Pet. 13
(quotation marks omitted), the majority ducks our obligation to
correct judicial usurpations of executive power and leaves
Flynn to twist in the wind while the district court pursues a
prosecution without a prosecutor. The Constitution’s
separation of powers and its protections of individual liberty
require a different result. I respectfully dissent.

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