Posted on 07/30/2020 10:01:08 AM PDT by Pete from Shawnee Mission
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 20-5143 September Term, 20191:17-cr-00232-EGS-1Filed On: July 30, 2020In re: Michael T. Flynn,Petitioner
BEFORE:Srinivasan, Chief Judge, and Henderson, Rogers, Tatel, Garland,Griffith, Millett, Pillard, Wilkins, Katsas*, and Rao, Circuit Judges US Court of Appeals Columbia District
O R D E R
Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate, it is ORDERED that this case be reheard by the court sitting en banc.
It is FURTHER ORDERED that the court’s order filed June 24, 2020, be vacated.
It is FURTHER ORDERED that oral argument before the en banc court be heard at 9:30a.m. on Tuesday, August 11, 2020.
The parties should be prepared to address whether there are “no other adequate means to attain the relief” desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).
A separate order will issue regarding the allocation of oral argument time.
My guess....Sullivan will suddenly retire. You think all those judges will go out on a limb for Sullivan. I don't think so.
The pleadings make all that clear, but understood they are dense and not many people take the time to find and read them.
A key term in there is "the relief he desires." What is the relief or remedy sought? That object is highly variable, and the outcome can turn on how "the relief" is stated.
What Flynn is seeking is close to summary "close the file" on the criminal case. But the trial judge wants to conduct hearings and take arguments why Flynn should not be charged with criminal contempt, which is an odd thing because it is a charge leveled by a judge, not by the executive, not by a prosecutor.
So, the issue at this moment is not dismissing the "lied to the FBI" charge. That charge is gone.
The relief requested is as I outlined, the difference between dismiss, vs. being subjected to a show cause why you shouldn't be under criminal contempt. The only way to get that relief is to tell the trial judge he can't have the hearing he's set up.
Sullivan and the dissent in the appeals case said that it's premature to order Sullivan to do anything, because he hasn't made a decision yet. That's BS. He decided to order a show cause event.
You asked how people could think that we are going to win through the legal system. One way I can conceive of people being able to think that is through having warped their judgment through drugs.
The constitutiuon expressly denies pardon power to cases of impeachment. This is because impeachment is not an executive department power, it is a Congressional power.
View the Flynn case as two cases. One, the "lied to the FBI" case. This is gone. The government dropped it and Sullivan can't resurrect it. There is no point in issuing a pardon here.
Two, a judge-made charge of criminal contempt. This, like impeachment, is NOT brought by the executive branch. It is an odd legal widget where a court has the power to be both prosecutor and judge. I don;t know of any precednet for a presidentiual pardon of judge-brought criminal contemt, and there is a good argument that this is out of POTUS power.
I am emphatically not defending Sullivan. He and the Court system are out of control and abusing their power. It would be righteous if the people rejected the authority of the court. It is out of its lane, and it is a clear and preesnt danger to the republic.
Thank you for that clarification. It sounds like you’re a lawyer and have taken the time to read the pleadings. I’m a lawyer, but have not read the pleadings. In any event, this certainly has become a kangaroo court. Each day I am finding it more and more difficult to have respect for, and confidence in, the system.
I think that people are not catching up to what the justice system has devolved into. They think it is 50 years ago in that regard.
“no other adequate means to attain the relief”
Yes, not “just,” only “adequate means to attain the relief.”
Does a Judge, qualify as a party who receives relief?
Shouldn’t that only apply to a Plaintiff or Defendant?
(Here J Sullivan has assumed for himself the role of Plaintiff/Prosecutor.)
So why take the case?
The people on the inside know the warts.
And too, every experience is "local." One judge can be good, one courthouse can be good, and down the street the courthouse is owned by organized crime.
The system protects itself, and dishonest systems too. Lots of trade on some imagined goodwill, people are supposed to trust the courts (and the objective press, and Congress) because ethics.
But I think the prevailing sentiment is "who cares, we have the power even if we are dishonest hacks." Completely true. They have the power, and everybody who can do something about it is either too busy, in denial, or you're a kook.
Sullivan is a hack. Everybody knows it. Nobody is going to do anything about it. He'll retire, and they all move on.
Ponder this. The FBI, CIA, DOJ, State Department, Congress and the press worked together, advancing a story they fabricated and knew to be false, for the purpose of swinging an election. when that failed, they use the same hoax and false accusations to appoint a Special Counsel.
That's the system. that's our government - telling us the Russians are trying to interfere and fear the Russians.
No. I fear my government. It is a state of revolution, and Sullivan is part of that revolutionary action.
Great Times! I would pay good money for this sort of excitement -- oh wait, I do, 40% of my income pays for this.
Between Kavanaugh, the Russia collusion coup attempt, the outrageous Barr hearing this week, the Flynn fiasco, the Democrat-supported riots and the Democrat plandemic I have, sadly, lost faith in the system. My one hope is that the American people see through all of this and deliver victories to the Republicans in November. If that does not happen, this country as we know it is finished.
In the Flynn case, the Court of Appeals en banc proceeding will focus on that distinction, asking why the trial court in the person of Judge Sullivan should not be permitted to hold a hearing and complete its judicial process before the Court of Appeals gets involved. The best reason for why an extraordinary writ is required is that Judge Sullivan clearly intends to inquire into why the Department of Justice decided to dismiss the charges against Flynn.
As a matter of settled federal law, charging and dismissal decisions are considered the exclusive domain of the Department of Justice. That ordinarily puts such decisions and the reasons and deliberations behind them beyond judicial inquiry. Indeed, since the government and the defendant both agree on the dismissal, it can be said that there is no longer a case or controversy for the trial judge to adjudicate.
Rockingham, it sounds like you're a lawyer as well.
If what Cboldt says is the case - that the lying case is over and they're fighting about the contempt charge, which is a charge brought by the Judiciary Branch not the Executive Branch - there would be no separation of powers issue. The DC Court of Appeals would thus not be bound by its recent decision in Fokker. I have not read the pleadings, but cboldt seems to be up to speed on this. In any event, the Dims are likely going to achieve their goal of muzzling Flynn until after the election.
I'm a cynic's cynic myself, but I don't think DEM takeover is necessarily a death sentence. Sometimes the bear has to be poked really hard to wake up.
That said, I offer it just a point of possibilities. I don't have faith in the public, and I view Trump as an 8 year reprieve, then back to the salt mine. The system is fatally damaged, and the people are without a clue.
Hope I'm wrong. I do know I am not depressed about this, I'm an old fart, and history shows regimes fall, and my life is not really "of this earth." I educate those who will listen that freedom is worth fighting and dying for. IOW, I do what I can, and better to be a happy warrior than a downer!
Yeah, this case is all about the limit of the court’s power, and how the court should assess and respond to an unopposed motion to dismiss the criminal charge. The criminal charge is gone so the separation of power’s issue is, IMO, a phantom anyway. The rights being impinged are Flynn’s, and the court is doing all the damage, all by itself.
I think the public is mostly ignorant that Sullivan is holding Flynn while he (Sullivan) ponders taking on the role of prosecutor against Flynn.
I think the public doesn’t really appreciate that the DC Circuit thinks maybe this is okay. maybe a Court should have the power to hold a defendant in suspense for months after the government has decided to dismiss the charges - indeed, aft the government has demonstrated to the trial court, that no crime was committed. This isn’t a question of sufficiency of evidence, this case collapses because there is no victim. No harm. None.
Except the supposedly impartial and justice driven court system thinks maybe this fellow ought to held in criminal contempt. Not that he is, just that this is a reasonable inquiry to make under the circumstances, and its okay to let Flynn hold in suspense while the Court plays rhetorical footsie.
These people are sick puppies. Our judges are dangerous to liberty, and Congress thinks this is hunky dory. That’s what it is, and to be honest, there is nothing the public can do other than “get the picture,” and understand that the court is a bunch of hacks, legitimate only on its own say so, not because it is wise, or just. It is a contemptible institution. It’s fooling some people, maybe most - but not all, not all.
Oh, Flynn is not muzzled by any court order. He is free to talk.
And he will, when the time is right. At this point, he is taking notes. Not much point in piping up, his lawyer is doing a good job of that.
I'm not very sympathetic to the "held in suspense" argument. It was Flynn's team's choice to file the writ of mandamus.
Absent that there's no doubt Sullivan would have ruled by now.
They gambled they could steamroll Sullivan and they lost. Living in suspense is the price Flynn's paying.
How does one have a sentence without a prosecution? Does the judge send you to jail just because he wants to? I am not understanding the judge’s endgame legally.
Understood.
And we know courts are unpredictable. That's the way rule of law works, inherently unprediuctable. Depends on the parties and on the judges.
I have lots of sympathy for Flynn. There is no way to get a just outcome in that cesspool. No matter which way he goes, he loses.
In a contempt charge on those grounds, Judge Sullivan would have to aim to punish an innocent man whom the prosecution induced to falsely plead guilty. Yet courts have long prioritized getting to the truth of guilt or innocence instead of trying to penalize a defendant for a false guilty plea.
Indeed, prosecutors often come in for sharp criticism when they threaten a defendant or witnesses with perjury charges in order to maintain a questionable guilty plea or verdict. It is hard to see how a judge can engage in such conduct without correction by the appellate courts or suffering judicial misconduct charges.
It turns out the judge does have that power when it comes to contempt of court. For that the judge is also the de facto prosecutor.
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