Notice & Comment

D.C. Circuit Review – Reviewed: Mandamus Watch

It is hard to not be intrigued by a writ of mandamus — one of “‘the most potent weapons in the judicial arsenal,'” and “a ‘drastic and extraordinary remedy reserved for really extraordinary causes.'” It is no small thing for a court, in the middle of proceedings, to order someone “to properly fulfill their official duties,” especially when it is an appellate court sending such an order to a trial court. And the procedure itself is bold. “Instead of appealing directly, the party simply sues the [court], seeking a mandamus compelling the judge to correct his earlier mistake.” No wonder mandamus “should only be used in exceptional circumstances of peculiar emergency or public importance.”

As I’ve explained before, because of drama inherent in mandamus, I almost started a series of posts called Mandamus Watch. Instead, I went with D.C. Circuit Review — Reviewed. But I’m always interested when mandamus comes to the D.C. Circuit. This week, the D.C. Circuit issued a new opinion about mandamus: In re Roger Stone. Judge Wilkins, joined by Judges Millett and Pillard, dismissed the petition because Stone and his family “failed to avail themselves of adequate alternative remedies.”

Here is an abbreviated version of backstory, the full details of which are available in the decision — or via a google search. Earlier this year, “a grand jury returned a seven-count indictment charging Stone [a political consultant who has worked in U.S. politics for decades] with: one count of obstruction of proceedings, in violation of 18 U.S.C. §§ 1505 and 2; five counts of false statements, in violation of 18 U.S.C. §§ 1001(a)(2) and 2; and one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(1). The indictment, signed by Special Counsel Robert Mueller, alleges that Stone obstructed investigations by Congress and the FBI into foreign interference in the 2016 presidential election.” Stone has pleaded not guilty. The district court has imposed limits on out-of-court statements. Those limits have been in the news. Eventually the district court “declared that during the pendency of the case, Stone is prohibited from posting ‘on Instagram, Twitter or Facebook in any way, on any subject,’ and that this ban ‘includes, but is not limited to, forwarding, liking, re-posting or re-Tweeting anyone else’s posts or Tweets.'” The ban also covers “‘indirect’ discussion of the case through ‘surrogates, family members, spokespersons, representatives, or volunteers.'”

This ban obviously raises First Amendment questions — how far does a court’s power go? But the district court process is still happening. So Stone and certain of his family members decided to petition for mandamus on the ground that the district court’s “orders constitute an unconstitutional prior restraint on their speech.” (Again, this is an abbreviated version of the story.)

The D.C. Circuit did not reach the merits of the First Amendment arguments. Instead, it held that the petitioners could have appealed directly, thus negating the need for mandamus. For instance, “Stone could have appealed under 18 U.S.C. § 3145(c), which expressly provides for judicial review of a detention order,” including — under D.C. Circuit precedent — “conditions of release.” And Stone’s family members could have appealed via the collateral order doctrine: “Though they lack the same appellate rights Stone has under 18 U.S.C. § 3145(c), our Circuit has long allowed nonparties subject to a restrictive order to appeal that order under the collateral order doctrine. …. For purposes of collateral-order appellate jurisdiction, we see no distinction between an appeal brought by nonparty relatives of a party who wish to speak publicly about a case and nonparty reporters who wish to receive information about a case. In both instances, the alleged injury is to First Amendment rights during the pendency of a case. And an aggrieved nonparty with Article III standing can appeal an order that affects her interests.” Thus, no mandamus. At least as to Stone’s family, however, the Court sketched a path to appellate review — “they may move the District Court to reconsider or modify the conditions of release and, if unsuccessful, appeal the denial of that motion.”

And that is this week’s Mandamus Watch.*

* The Court decided one more case this week: California v. EPA. I didn’t work on the case, but Kirkland & Ellis LLP is one of the law firms involved. Because I’m of counsel, I will withhold commentary. Here, however, is a good summary:

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