Will The DC Circuit Court Order Sullivan To Dismiss The Flynn Case? It All Comes Down To One Judge

The Federalist ^ | June 12, 2020 | Margot Cleveland

[Kaslin]

At the end of the day, Judge Henderson may decide, based on the long and sordid history of this case, that it isn’t just Judge Sullivan’s amicus who is intemperate.

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Over the course of nearly two hours, a three-judge panel of the D.C. Circuit Court of Appeals quizzed attorneys for Michael Flynn, the Department of Justice, and Judge Emmet Sullivan. The questions posed during oral argument suggest the court is hesitant to order Sullivan to dismiss the criminal case against Flynn — at least at this time. How the court will rule, however, likely rests in the hands of Judge Karen Henderson.

Here’s why, along with some other key highlights.

But first, the background:

The special counsel’s office had charged Flynn in late 2017 with making false statements to FBI agents. At the time, Flynn pleaded guilty to the charge, but after hiring a new attorney, Sidney Powell, Flynn moved to withdraw his guilty plea, arguing prosecutors threatened to improperly target his son unless he pleaded guilty to the offense and that his prior attorneys were ineffective. While that motion was pending, Attorney General William Barr directed an outside U.S. Attorney, Missouri-based Jeff Jensen, to review the Flynn case.

Jensen’s review revealed evidence previously undisclosed to Flynn and Sullivan, the federal judge presiding over the case. After turning over that material, the local U.S. attorney filed a motion to dismiss the charge against Flynn. While that should have been a routine motion, Sullivan refused to dismiss the criminal charge and instead invited amicus curiae, or friend of the court, briefing from outside parties, and appointed a retired judge, John Gleeson, as an amicus curiae to argue against dismissal.

Powell promptly sought assistance from the D.C. Circuit Court, asking for an order, called a writ of mandamus, directing Sullivan to dismiss the case. In an unusual move, the federal appellate court ordered Sullivan to respond to the petition, and also invited the Department of Justice to respond.

Sullivan hired an outside attorney, Beth Wilkinson, to represent him, and Wilkinson argued the federal judge’s position this morning, while DOJ attorney Jeff Wall argued on behalf of the government. Of course, Powell took to the podium to present Flynn’s position.

The argument began promptly at 9:30, live-streamed on the court’s YouTube channel, when presiding Judge Karen Henderson, a George H.W. Bush appointee, called the court to session, flanked by fellow judges Obama-appointee Judge Robert Wilkins and a recent Trump judge, Neomi Rao. The three-judge panel peppered the attorneys with questions for nearly two hours.

One key area of inquiry concerned the power of a federal judge to question federal prosecutors on their motive for seeking dismissal. What is the “leave of court” standard? Rao asked, noting it was more than a rubber stamp, but surely not a deep-dive into the executive branch’s decision-making.

Wilkins pushed the same line of inquiry, but with the goal of cornering the Trump administration into a fateful admission: What if the government decided to drop an excessive force charge against a white police officer where the victim was black? Could the court question the Department of Justice’s decision? Would the court be required to dismiss that prosecution?

Wall, who argued for the DOJ, deftly handled the inflammatory question, noting that the DOJ would never act in such a way and that he has never seen such conduct, but if such a situation occurred, it would present an equal protection issue — something far afield of the case before the court. And there would be other remedies for racist-based failure to prosecute a case, Wall assured the court.

While the attorneys fenced with the judges on the issue of the standard for dismissal, Judge Henderson focused on the question of remedy. With mandamus being “an extraordinary remedy,” what would be the harm in going ahead with “regular order” and allowing Sullivan to issue a ruling on the government’s motion to dismiss? the longtime appellate judge queried. Henderson then added that she had found no case in which the court had issued a writ for mandamus prior to the district court issuing an order.

Henderson noted that while Sullivan had appointed an “intemperate amicus,” referring to John Gleeson, who recently filed a 70-plus-page anti-Trump screed, Sullivan is “an old hand” and “we don’t know” that he will deny the motion to dismiss, Henderson stressed. Instead, he might well say, “You know I asked for advice, but I’m ignoring it, and I’m granting the motion to dismiss.” Given that mandamus is a “drastic remedy,” and there is no precedent for granting before an order, why not wait until Sullivan considers the question on July 16? the Bush appointee queried.

Powell forcefully reminded the court that this case is over. There is no controversy, and while the government is paying for everyone else’s attorneys, three years into this fight, it is a burden on Flynn and his family, where the outcome is a foregone conclusion.

Wall, for his part, stressed the more global harm to the executive branch, noting that Sullivan invited an amicus who politicized the process and has accused Trump and Barr of malfeasance. The filed amicus brief and Sullivan’s brief filed before the D.C. Circuit also suggest the court’s intent to explore the DOJ’s decision and motives — something clearly beyond the judiciary’s power, Wall maintained. There is a true harm to the government, beyond the “intemperate amicus,” as it invades the executive branch’s deliberate process and creates a conflict between two branches of the government.

Why then did the DOJ not seek mandamus? Wilkins asked. Wall explained that the DOJ had been considering the appropriate course to take, unsure how Sullivan intended to proceed, when Powell filed her petition for mandamus. But the DOJ attorney added that if the court thought it was important, the DOJ would file for leave to file a petition for mandamus because this case presents significant and concrete constitutional separation of powers issues.

At that point, Wilkins chided Wall for suggesting yet another extraordinary departure from “normal procedures” by seeking leave to file a mandamus petition after the fact. Wall countered that the DOJ was appearing in support of Flynn’s petition, and that its position is regularly considered in such cases, and should be considered here as well, even without a mandamus petition.

Whether the D.C. Circuit will agree with the DOJ’s position in this case, however, is impossible to accurately predict. Rao’s concerns, that there is no adversary and that the judicial branch cannot create a criminal case where the executive branch has concluded that continued prosecution is inappropriate, suggest she will side with Flynn. Wilkins’ one-sided questioning and his chiding Wall for not filing a mandamus indicate he will rule that Sullivan has both the right and the obligation to inquire further into the dismissal. That leaves Henderson with the decisive vote.

Here, it is significant to note that in questioning Wall about the propriety of mandamus, Henderson noted that there was a “clear and indisputable right,” meaning that dismissal would be required in this case. But she faltered on the question of remedy. Her comments from the bench indicate she wants to let Sullivan have a chance to do the right thing — which, based on her various questions, means dismissing the criminal charge.

Don’t we want the Article 2 branch to self-correct? Judge Henderson asked at the end of the hearing. The bad faith in this case occurred in the original prosecution, she added.

Yes, Wall noted, stressing that the Department of Justice provided three independent reasons for dismissal of the charge against Flynn, and that Sullivan and the amicus supporting his perspective ignored the final rationale: The DOJ believed continued prosecution was not in the interest of justice given the extraordinarily improper circumstances surrounding the interview of Flynn. No one disputes that making such considered judgments is a core Article 2 power. This alone requires the district court to grant the motion to dismiss, Wall added.

How these points will play out for Judge Henderson are unknown, but Wall also offered an appealing compromise: Direct Judge Sullivan to limit further proceeding to the pending Rule 48 motion to dismiss — and thus order him to abandon his pursuit of a perjury claim — and then allow Sullivan to rule on that motion, but only based on the rationales provided in the DOJ’s motion to dismiss.

Framing this directive, however, may prove challenging, as Rao noted. At the end of the day, Judge Henderson may decide, based on the long and sordid history of this case, that it isn’t just Judge Sullivan’s amicus who is intemperate.

[ocrp1982]

Both of your assertions are valid but, you left one out. If the case is dismissed under the circumstances and reasoning outlined by Sydney Powell, Flynn would have a rock-solid case to sue all involved. Both the Gov’t agencies and the individuals involved personally.
They wouldn’t have a leg to stand on in defense of themselves.

[Sacajaweau]

I don’t believe there was a gag order for Flynn.

[GAGOP]

In my opinion, the swing vote on this all but stated that Sullivan better abandon whatever plans he had or they would step in and dismiss the charges. I couldn’t help thinking during the hearing that they were giving him “an out”. Whether he is smart enough to receive the message remains to be seen.

[GAGOP]

In my opinion, the swing vote on this all but stated that Sullivan better abandon whatever plans he had or they would step in and dismiss the charges. I couldn’t help thinking during the hearing that they were giving him “an out”. Whether he is smart enough to receive the message remains to be seen.

[marktwain]

I don’t believe there was a gag order for Flynn.

You are likely correct.

Several other posters have referred to a gag order, so I thought there was one.

But, searching for one, I am not finding one.

Of course, what he may prudently say in public is limited by the charges against him.

[fortheDeclaration]

The SC has ruled 9-0 on this kind of case. If it get kicks up to them, it is a slam dunk.

[tsomer]

H...Wall also offered an appealing compromise: Direct Judge Sullivan to limit further proceeding to the ... motion to dismiss...order him to abandon his pursuit of a perjury claim...then allow Sullivan to rule on that motion, but only based on...the DOJ’s motion to dismiss.

Framing this directive...may prove challenging, as Rao ((Trump appointee)) noted. ... Judge Henderson ((Bush appointee)) may decide, based on the long and sordid history of this case, that it isn’t just Judge Sullivan’s amicus ((Gleeson, arguing the perjury angle)) who is intemperate.

I've tried to cull the superfluous verbiage from these last two paragraphs and --in double parenthesis-- added details details about the players-- reminders, if you will. The cast of characters is confusing to me.

Even more confusing is the authors conclusion; who is he alluding to that Henderson may decide has been "intemperate?" Is it the original prosecution, the FBI, the Justice Dept, or Sidney? What effect will it have on her final decision?

[Alas Babylon!]

Everyone seems to forget this part:

Powell forcefully reminded the court that this case is over. There is no controversy, and while the government is paying for everyone else’s attorneys, three years into this fight, it is a burden on Flynn and his family, where the outcome is a foregone conclusion.

[conservatism_IS_compassion]

to keep General Flynn under a gag order

. . . which seems like a tort. THAT should have been the rebuttal to the question of why it matters if the case drags on for a while longer. In addition to the money issue, which is sufficient in its own right.

[tsomer]

...the swing vote on this all but stated that Sullivan better abandon whatever plans he had or they would step in and dismiss the charges.

Thanks for that, I think I get the authors insinuation in the last paragraph.

[milagro]

THAT just might be what will be taken into serious consideration by this panel—not because of any reasoned jurisprudence, but because of possibly causing damage to their image: i.e., sheer EGO!

[Sacajaweau]

He has spoken out several times. A good man. Damn Comey...

[Nifster]

This proceding was outrageous

[be-baw]

The article says she was a GHW Bush appointee.

[volunbeer]

The panel is only supposed to decide what is in the motions before them.

We all know Flynn was targeted by a conspiracy of government officials to falsely charge him with a crime.

However, the motion before the court is simple on the legal merits. The government (DOJ) has told the court that they want to dismiss the case with prejudice because they do not believe they could prove the case at trial and they do not believe there was any crime committed.

They did not go into the fact that Flynn was a victim of a crime by the government. They purposely tried to avoid that just as the “court” is trying to avoid the politics of the case.

Barr is old school. If (or when if allowed) Sullivan wants to drag this out much longer I think Barr is obligated to notify the court that there are many more legitimate reasons to dismiss the case because DOJ now possesses information (Durham) that would be deemed exculpatory.

DOJ has tried to avoid “going there”, but they may be left with no choice because Sullivan does not want to give up on the coup. Remember, Flynn was the “crown jewel” of the Mueller crew... the biggest name on the board.

I think the conduct was so egregious based on what we now know that DOJ will likely move to vacate all of the cases prosecuted by Mueller. If they leave a case alone it would likely be Manafort, but even that one should be vacated for the blatant partisanship and bad acts in my opinion.

We will have to wait another month, but my suspicions are that Barr will address the court if this is not dismissed. I think he will have to.

[Chewbarkah]

The supposed swing vote Judge Henderson admits that Sullivan appointed an “intemperate amicus”. She has read the intemperate screed Mr. Amicus submitted. She knows that Sullivan hired Hillary Clinton’s lawyer to represent him.

Given the above, how on Earth can she pretend to expect Sullivan to rule objectively if allowed? Every appearance is that Sullivan desires to sentencing Flynn to the maximum, so that he will have to appeal the sentence, thus making the case drag on past the election.

[Verginius Rufus]

Given his track record I will be very surprised if he dismisses the case against Flynn. He wants to inflict maximum damage on Trump and on Barr. I doubt he will impose a 10-year sentence but he might impose a shorter one, trying to corner Trump into pardoning Flynn before the election, or just to drag things out further (assuming the sentence would not start until the appeals are over). He knows that the media will praise what he does and that a large part of the public will just accept the media’s version.

[Bratch]

Understanding Likelihood of DC Circuit Denying Petition for Writ of Mandamus….

Posted on June 12, 2020 by sundance

After listening to oral arguments in the DC Circuit Court for the Flynn petition for a Writ of Mandamus (appeals court intervention); it seems very likely the panel of three judges will deny the Flynn defense and DOJ request, here’s why….

For the past decade CTH has been accurate in predicting these judicial events based on one overarching principle.  The issues at hand are political arguments being made in the sphere of legal proceedings.  As a consequence, all judicial proceeding continue -regardless of legal merit- until such time as they run into the final barrier of legal standing.

This same principle played out in the George Zimmerman case (Trayvon Martin).  This same principle played out in the Baltimore Six case (Freddie Gray).  A modified version of this principle played out in the Darren Wilson case (Michael Brown).

In the assembly of each prosecution there was no legal basis for the underlying case to proceed into the judicial branch, and yet those proceedings continued.  They continued because the case travel is based on politics, not law.  This is the essence of Lawfare.

As soon as the political runway of the case runs-out; then, and only then, does the case itself run into the law, and the case collapses.  The Michael Flynn case is still on the political runway; and the DC Circuit will not intervene as long as the runway still exists.

Again, these are political cases being tried in the judiciary.  Most lawyers who review these cases, and follow the underlying aspects, continually view the activity through the wrong prism, because they do not accept that politics is the driving force.  Not law, politics.

In each example, based on the fortitude of the defendant; which assumes the pressure is withstood and acquiescence to a plea does not happen; there does -eventually- come a time when statutory law and the underlying factual evidence is confronted.  When those end-of-runway moments are reached, the cases collapse on their lack of merit because they were built upon false political foundations.   Notice it is only at the moment the political runway terminates that we find ourselves witnessing the legal collapse.

Thus we saw George Zimmerman found not-guilty because the underlying case was devoid of merit and built upon political fraud.  Thus we saw the Baltimore Six found not-guilty and remaining cases dispatched because the underlying case(s) were devoid of merit and the public evidence was built upon political fraud.  Thus we saw a Grand Jury no-true bill finding in the Darren Wilson case because it was devoid of merit and the underlying (public) evidence was built upon political fraud.   Same. Same. Same.

In the oral arguments today the DC Circuit panel recognized there was still a great deal of political runway to travel as they questioned why they should intervene prior to a ruling by Judge Emett Sullivan on the unopposed motion to dismiss.

Behind their arguments, unspoken but visible, was a familiar position. There is still distance on the political runway before Sullivan’s July 16, 2020, District Court hearing and ultimately a ruling on the unopposed DOJ and Defense standing motion for dismissal.

Judge Sullivan’s lawyer, Beth A. Wilkinson, argued Judge Sullivan’s request for an amicus briefing is moot to the interests of superior court intervention because the DC Circuit cannot evaluate Judge Sullivan’s intent until after he issues his ruling on the unopposed motion to dismiss.  That argument is what the panel wanted; that’s what the panel needed; that’s what the panel received. Thus, there’s plenty of political runway yet to be traveled.

Each of these political cases has a similar, perhaps identical, trajectory.  Each case seems to use the same airport; albeit with different lengths of runway; and each case travels that runway regardless of merit or legal standing for the underlying case.

Standing on the sidelines, viewing cases through the prism of the rule-of-law, while watching cases traveling on the runway of politics is frustrating.  Accepting the political motives of each case will lower blood pressure and save energy for the moment that really does matter, when the political runway is exhausted and legal statutes and principles do indeed apply.

Until the moment the value of politics expires, all judicial activity is an exercise in futility…. unless a target happens to come across a judge who will not support the politics of it (ie. Judge Andrew Hanen), but that is increasingly rare.

As long as a superior court judge, or panel of judges, can find a scintilla of legal space to justify political continuance, they will.   After two decades of this political metastasis, and despite the efforts of some lower courts trying to block it, even the U.S. supreme court is now infected.

If you find yourself as a target for one of these political cases, don’t hire a lawyer well versed in the legal aspects of your case; start first with a lawyer well versed in politics.  One that is not afraid to take your case loud and public.

[Trump Girl Kit Cat]

Barr and Durham NEED to arrest the bastards responsible for framing Flynn and Trump NEEDS to pardon him NOW!! There is no case charges have been dropped and these political hacks in black robes can still harass someone with NO CHARGES!!! WTH has this country come to!!! To bad Flynn is not BLACK!!!

[MortMan]

That is neither surprising nor improper. The prosecutorial malfeasance was not before the court, yet.