...While Sullivan’s entire response is weak and screams of bias, his final point actually proves Powell’s case for mandamus. In closing, Sullivan argues the D.C. Circuit should deny Flynn’s petition for mandamus because he has yet to rule on the government’s motion to dismiss. Here, Sullivan stresses that mandamus is rare and is only appropriately granted when no other remedy is available. He then posits that, since Flynn could appeal any future denial of his motion to dismiss, there is no reason for mandamus now.
This point cannot withstand scrutiny, however, because as the brief filed yesterday by a group of U.S. senators argued, there is no longer a live “case or controversy” in the Flynn case. The senators’ amici curiae brief makes this brilliant point, overlooked by many: Sullivan is not merely violating Article II of the Constitution, which grants prosecutorial discretion solely to the executive branch. He is also violating Article III of the Constitution by attempting to rule in a case where there is no “case or controversy.”
Because both parties agreed to dismissal of the case — the federal government on one hand and Flynn on the other — there no longer remains a live dispute subject to a federal court’s jurisdiction. Article III provides that the judicial power of the United States extends only to cases and controversies.
Without a live dispute, any decision Sullivan renders (or purports to render) would consist of an improper advisory opinion. Thus, by arguing that mandamus should be denied because he has yet to rule on the motion to dismiss, Sullivan has proved the need for mandamus: to prevent him from issuing an advisory opinion...
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