Politico reports as a federal appeals court grappled on Tuesday with a politically charged dispute that long ago faded from the headlines, one of the most urgent and politically polarizing legal fights of the moment seemed to lurk just below the surface.
The official topic of Tuesday’s arguments before the D.C. Circuit Court of Appeals was Hillary Clinton’s bid to avoid giving an in-person deposition to a conservative group about the subject that dogged her during her 2016 presidential bid: her use of a private email account and server during her tenure as secretary of state.
However, some of the comments by judges and attorneys on Tuesday called to mind the ongoing battle royal over the Justice Department’s effort to abandon its prosecution of Michael Flynn, President Donald Trump’s first national security adviser, on a false-statement charge, despite Flynn’s guilty plea in the case.
Both the Clinton deposition dispute and the Flynn case imbroglio involve an obscure type of legal mechanism that is not currently a household word but may soon be, at least in Washington: mandamus. It’s a process that can be used to force a judge’s hand when an ordinary appeal isn’t available for some reason or just won’t do the trick.
None of the lawyers or judges explicitly mentioned Flynn on Tuesday, but as the participants jousted over Clinton’s request, at least some seemed to be offering arguments shaped by the blockbuster fight over the attempt to unwind the guilty plea that Flynn offered to special counsel Robert Mueller’s prosecutors more than two years ago.
While the Justice Department weighed in Monday with a full-throated endorsement of Flynn’s mandamus petition to shut down his prosecution, the department essentially sat on its hands after Clinton and her longtime aide Cheryl Mills filed similar petitions to block depositions that a judge ordered at the request of the conservative group Judicial Watch.
Last month, the appeals court judges assigned to the Clinton email case invited the Justice Department to appear at Tuesday’s arguments to explain its position. Department lawyers politely declined. Two days later, the D.C. Circuit panel affirmatively ordered the government to show up.
Some legal scholars suggested the Justice Department’s reticence was strange and perhaps even a political dodge aimed at diverting attention from the fact that it opposed a deposition from Clinton in U.S. District Court.
Justice Department attorney Mark Freeman was vague on Tuesday about exactly why it wasn’t backing Clinton’s move, but suggested that the rare rebuke to a judge was appropriate only in truly exceptional cases.
“We take very seriously the decision about when to come to this court and ask the court to issue the extraordinary writ of mandamus and we chose, in the interests of the executive branch, balancing the pros and cons, not to do so here,” Freeman said.
Of course, the government does file for mandamus to block judges in some cases and has not been bashful about doing so recently. In 2018, for example, the Justice Department filed such petitions to block court orders demanding testimony and records from Trump administration officials in connection with the adding of a citizenship question to the census. The George W. Bush administration also made a similar legal maneuver to block public access to details about Vice President Dick Cheney’s energy task force.
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