In re: Michael T. Flynn

On Emergency Petition for Writ of Mandamus



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. 1:17-

cr-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. 1:17-

cr-232, ECF No. 199 (D.D.C. May 7, 2020), and he consented

3

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

4

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

1 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.”).

5

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).

6

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)).

7

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.

8

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.

9

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

10

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

11

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)

4 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.

12

(“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

13

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. 20-

5056 (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

14

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

15

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,

6 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.

16

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

17

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

7 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.

18

in the District Court, we trust and expect the District Court to

proceed with appropriate dispatch.

So ordered.

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.

2

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.

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. 20-

5143 (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

2

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. 20-

5143, 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

3

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.

4

(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

5

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. 20-

5143 (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

6

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.

7

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.

8

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.

9

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.

10

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.

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

2

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.

3

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

4

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. 1:17-

cr-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.

5

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

6

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.

7

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.

8

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.

9

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”).

10

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

11

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

12

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

13

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—

14

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).

15

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),

16

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

17

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.

18

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

19

‘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

20

argument cannot make speculative the many clear

representations in the district judge’s briefs.

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.

21

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

22

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

23

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

24

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.

25

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”).

26

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-

27

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

28

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

29

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

30

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

31

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.

For the foregoing reasons, the Petition for a writ of

mandamus is denied. As the underlying criminal case resumes

in the District Court, we trust and expect the District Court to

proceed with appropriate dispatch.

So ordered.