Appeals court mulls making Hillary Clinton testify on emails


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.

The Justice Department also rolled out the legal bazooka of mandamus on behalf of Trump himself, seeking to shut down a lawsuit that the governments of Washington, D. C., and Maryland brought alleging that he is illegally profiting from foreign and state government business at his D.C. hotel.

In a court filing in April, Freeman offered a bit more explanation about why the Justice Department wasn’t coming to Clinton’s rescue as it had for Trump, Commerce Secretary Wilbur Ross and, earlier, Cheney.

Freeman said the order for Clinton’s deposition was not as objectionable as other demands seeking testimony for the “impermissible purpose of probing internal government decisionmaking regarding official policy.” Instead, Judicial Watch’s fact-gathering is focused on compliance with the Freedom of Information Act.

The arguments on the Clinton email case on Tuesday, held via telephone because of the coronavirus pandemic, stretched to more than an hour and a half. That was nearly three times more than the court had scheduled.

At least two of the judges assigned to the case seemed to suggest an uphill battle for the former secretary, first lady, senator and two-time Democratic presidential candidate by stressing just how infrequently mandamus is granted.

“Mandamus is an extraordinary remedy,” said Judge Nina Pillard, an appointee of President Barack Obama.

“Mandamus is extraordinary. It’s a rare device,” added Judge Thomas Griffith, who was appointed by President George W. Bush.

The only judge currently assigned to both the Clinton case and the Flynn one, Obama appointee Robert Wilkins, didn’t offer the same kinds of generic observations on the legal tactic common to both cases. However, all the D. C. Circuit judges could eventually be asked to weigh in on the Flynn case.

Judicial Watch, which has strongly backed Flynn’s bid to deep-six his prosecution, nevertheless urged the appeals court to be very wary of using mandamus to quash the Clinton deposition. A lawyer for the group, Ramona Cotca, accused Clinton and Mills of... (Read more)

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