The Flynn Case Doesn’t Need “Friends” Like These

Law 360 published the following Expert Analysis on May 15, 2020 under the title With Friends Like These: The Amicus Questions In Flynn Case,” and is posted here with permission.

Law360 (May 15, 2020, 6:36 PM EDT) — Most Law360 readers are familiar with amicus curiae, or “friend of the court,” briefs, especially at the appellate level.

Organizations such as the U.S. Chamber Litigation Center, the Washington Legal Foundation and defense attorney group DRI regularly file amicus briefs that add perspective in U.S. Supreme Court and lower court appeals that raise legal issues important to their missions, members and supporters.

And every year the Solicitor General of the United States files numerous amicus briefs on behalf of the United States — almost always at the invitation of the Supreme Court — in cases where the federal government is not a party but has a direct interest in the questions presented.

Very recently, however, a less-well-known type of judicial “friends” — court-appointed amici curiae — has been in the news.

First, on May 7, the Supreme Court issued a unanimous opinion, authored by Justice Ruth Bader Ginsburg, in United States v. Sineneng-Smith, No. 19-67. In a nutshell, the court held that a U.S. Court of Appeals for the Ninth Circuit panel overstepped its adjudicatory role by appointing, and then adopting the views of, certain amici curiae as to why a federal criminal statute is unconstitutional, and in so doing, by failing to limit its opinion to the issues actually addressed by the parties, violated the “principle of party presentation.”

Then, on May 13, U.S. District Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia, on his own volition, issued an order [click Download above] appointing John Gleeson, a retired judge for the U.S. District Court for the Eastern District of New York, to act as “amicus curiae to present arguments in opposition to the government’s Motion to Dismiss” the criminal proceeding against former Trump national security adviser Michael Flynn.

In other words, Judge Sullivan invited amicus argument on an issue — whether the case should not be dismissed — that neither the United States nor defendant Flynn is advocating. This seems strikingly similar to the “principle of party presentation” issue that the Supreme Court had addressed a week earlier in Sineneng-Smith.

 The Amicus Appointment in the Flynn Case Raises Significant Legal Issues

The Supreme Court occasionally “invites” (in reality, appoints) an amicus curiae to argue a position on an issue in a civil case that neither side is advocating. For example, in Seila Law LLC v. Consumer Financial Protection Bureau, No 19-7, the Supreme Court appointed renowned Supreme Court advocate Paul Clement to argue as amicus curiae in support of the Ninth Circuit’s judgment that the CFPB is constitutional — a position that neither side in that pending Supreme Court appeal is taking.

But Judge Sullivan’s appointment of Judge Gleeson as amicus curiae to address the question of whether the Flynn case should be kept alive — specifically whether the district court should issue a show cause order as to why Flynn should not be held in criminal contempt for perjury — has sparked enormous controversy.

For example, critics of Judge Sullivan’s amicus order have noted that only two days earlier, Judge Gleeson co-authored a Washington Post op-ed arguing that Judge Sullivan has discretion to reject the government’s dismissal motion and proceed to sentence Flynn. Can a court-appointed amicus curiae who already has publicized his strongly held views about a particular case help the court administer impartial justice in that case?

A district court’s authority to appoint an amicus curiae for the purpose of arguing against the federal government’s exercise of prosecutorial discretion to withdraw a criminal proceeding poses additional significant issues. For example, how can an amicus curiae be appointed in a case where there no longer is a constitutionally required “case or controversy” for a district court to adjudicate? And even more broadly, can a federal district court ever appoint an amicus curiae to argue either for or against the defendant in a criminal proceeding?

 The Supreme Court’s Recent Sineneng-Smith Opinion Curtails the Role of Court-Appointed Amici

It is particularly difficult to reconcile Judge Sullivan’s amicus appointment order with the Supreme Court’s opinion in Sineneng-Smith. The defendant in that case was convicted of operating an immigrant consulting firm in violation of a federal statute that prohibits encouraging or inducing aliens to come to the United States under unlawful circumstances.

In the district court, and on appeal to the Ninth Circuit, the defendant, with the assistance of counsel, argued that the statute is unconstitutional as applied under the First Amendment’s petition and free speech clauses.

With the benefit of arguments presented by court-invited amici curiae, however, the court of appeals held that the statute is unconstitutional on a different ground — that the statute is unconstitutionally overbroad on its face. This is a ground that the defendant did not pursue until after the Ninth Circuit panel asked the invited amici to address it.

Justice Ginsburg’s opinion explains that the United States and the defendant submitted their briefs, but:

“The case was then moved by the appeals panel onto a different track. Instead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel, including a question Sineneng-Smith herself never raised earlier; ‘[W]hether the statute of conviction is overbroad … under the First Amendment.’ In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role. The Ninth Circuit ultimately concluded, in accord with the invited amici’s arguments, that [the statute] is unconstitutionally overbroad.”[1]

More specifically, “[w]ith the appeal poised for decision based on the parties’ presentations, the appeals panel intervened. It ordered further briefing, but not from the parties. Instead, it named three organizations … and invited them to file amicus briefs on three issues,” including “[w]hether the statute is overbroad or likely overbroad under the First Amendment.”[2]

The Supreme Court also noted that “[i]nvited amici and amici not specifically invited to file were ‘free to brief such further issues as they … believe the law, and the record calls for.'”[3] Further, the Ninth Circuit panel “gave invited amici 20 minutes for argument, and allocated only 10 minutes to Sineneng-Smith’s counsel.”[4]

The panel agreed with the invited amici that the statute was “facially overbroad under the First Amendment … and was not susceptible to a permissible limited construction.”[5] In so doing, the defendant’s “own arguments, differently directed, fell by the wayside, for they did not mesh with the panel’s overbreadth theory of the case.”[6]

The appellate panel’s relegation of both the United States and the defendant to second-class status, while elevating the advocacy role of the invited amici on an issue that the actual parties did not raise, was troubling to all nine justices (including Justice Clarence Thomas, who filed a concurring opinion). Judge Sullivan’s order inviting retired Judge Gleeson’s views on whether the Flynn case can proceed despite the actual parties’ position that the case should be dismissed is reminiscent of the judicial overreach that the Supreme Court criticized and reversed in Sineneng-Smith.

The Supreme Court held that “the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion.”[7] Under that principle, “in both civil and criminal cases, in the first instance and on appeal …, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”[8] Although the party presentation principle is “supple, not ironclad,” the court found that “[n]o extraordinary circumstances justified the panel’s takeover of the appeal.”[9] The court explained that “a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”[10]

The Supreme Court took the unusual step in Sineneng-Smith of attaching an addendum “list[ing] cases in which this Court has called for supplemental briefing or appointed amicus curiae in recent years.”[11] The court indicated, however, that “none of them bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case.”[12]

The court’s addendum is helpful because it distinguishes the “abuse of discretion” that the court reversed in Sineneng-Smith from the legitimate role of amici curiae, including when they are specifically invited by a court to participate in a case.


As of this writing, the Flynn saga continues to unfold. President Donald Trump may put an abrupt end to it with a full and unconditional pardon. But if the Flynn case proceeds, and, based on Judge Gleeson’s anticipated amicus arguments, Judge Sullivan declines to dismiss the case, an appeal concerning the proper role of court-appointed amici curiae seems inevitable. In that event, the Sineneng-Smith precedent will weigh heavily on the propriety of Judge Sullivan’s actions.

[1] United States v. Sineneng-Smith, Slip op. at 3.

[2] Id. at 6-7.

[3] Id. at 7.

[4] Id.

[5] Id.

[6] Id. at 8.

[7] Id. at 3.

[8] Id. (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008)).

[9] Id. at 4, 8.

[10] Id. at 8.

[11] Id. at 4 n.4; see id. at 10-11.

[12] Id. at 4 n.4.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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