Appeals Court Orders Judge Emmet Sullivan To Explain His Actions In Michael Flynn Case
“ORDERED, on the court’s own motion, that … the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss”
Michael Flynn has asked the Court of Appeals for the D.C. Circuit to order the district court to dismiss the criminal prosecution as requested by the government, and to remove Judge Emmet Sullivan from the case.
Instead of dismissing the case, Sullivan appointed former Judge John Gleeson, who has a documented hostility to Flynn, to argue as ‘friend of the court’ against dismissal and also as to whether Flynn should be held in criminal contempt of court for perjury (presumably for pleading guilty then later denying guilt).
For background on the Petition for Mandamus filed by Flynn in the appeals court and prior proceedings, see these prior posts:
- Michael Flynn Asks Appeals Court to Order District Court to Grant DOJ Motion to Dismiss
- Judge considering holding Michael Flynn in criminal contempt for perjury in connection with guilty plea
- Judge in Michael Flynn case may allow ‘amicus’ briefs on whether to drop case – is there reason for freak out?
- DOJ Drops Case Against Michael Flynn After Considering ‘Newly Discovered and Undisclosed Information’
The D.C. Circuit has issued an order (pdf.) which is as unusual as Sullivan’s own conduct. The appeals court order Sullivan to explain what he is doing:
BEFORE: Henderson, Wilkins, and Rao, Circuit Judges
O R D E R
Upon consideration of the emergency petition for a writ of mandamus, it is
ORDERED, on the court’s own motion, that within ten days of the date of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020 (ECF No. 198). See Fed. R. Crim. P. 48(a); United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016). The government is invited to respond in its discretion within the same ten-day period.
The Clerk is directed to transmit a copy of this order to the district court.
Per Curiam
The Court’s mention of Fokker may be significant, as it was one of the main cases cited by Flynn in his Emergency Petition for Mandamus (pdf.), including the following:
The district court’s failure to grant the Government’s Motion to Dismiss defies this Court’s binding precedent in United States v. Fokker Servs., B.V., 818 F.3d 733, 740 (D.C. Cir. 2016).
* * *
This Court has held that the discretion of the Justice Department under Rule 48(a) is predominant, while the role of the judge is ministerial: “[D]ecisions to dismiss pending criminal charges … lie squarely within the ken of prosecutorial discretion” and “‘at the core of the Executive’s duty to see to the faithful execution of the laws.’” Fokker Servs., 818 F.3d at 741 (citation omitted)
* * *
A district court cannot deny the Government’s motion to dismiss because the judge has “a disagreement with the prosecution’s exercise of charging authority,” such as “a view that the defendant should stand trial” or “that more serious charges should be brought.” Fokker Servs., 818 F.3d at 742-43. Nor should a court second-guess the Government’s “conclusion that additional prosecution or punishment would not serve the public interest.” Id. at 743….
Sullivan is notoriously hostile to Flynn. This Rachel Maddow segment has excerpts from court statements by the judge slamming Flynn:
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Comments
Sullivan is in deep and has little way out.
How fortunate we are to get a panel with 2 of 3 being patriots.
Not necessarily.
Sullivan’s card is that Flynn lied to the court under oath by pleading guilty and that as the presiding Judge, he is obliged to protect the sanctity of the court.
It is that second matter of perjury that may prove problematic for Flynn.
Yes, the FBI framed him but the Judge will argue he asked him multiple times during the course of the trial whether he wished to change his plea and Flynn said no.
Of course Flynn can argue that he was given bad legal advise by his previous lawyers but I don’t know the precedent for that.
Nah. Sullivan can’t make that stick for the simple reason that Flynn was lead to believe he did commit a crime by the Government.
All Flynn has to do is say “IANAL and I was lead to believe I was guilty when I wasn’t.”
“Anal??”
Sally – Assuming that you merely ignorant and not a troll, please note that the acronym used was:
IANAL, not ANAL.
IANAL stands for “I am not a Lawyer”.
Well, Sally, you have company. I am ignorant, too. Ignorant of two things — the first being what that set of lazy substitute for English words means, and second, what good it would do to actually say it to a judge. It IS in quotation marks, after all. I wonder how Flynn should pronounce it.
Likewise, I didn’t know what it meant. And you didn’t deserve the snark.
.
Sadly, we live in a world of 240 characters, where TLA’s* & ETLA’s* reign in order to fit your snark* into that tiny space. Even legal briefs now have word counts to encourage brevity.
*TLA = Three Letter Acronym
*ETLA = Extended Three Letter Acronym
*Snark = considered and fact-based opinion 🙂
You mean it’s not a new Apple device for administering suppositories?
Flynn Unmasking for Reporters.
Kayleigh McEnany Uses Slide Show To School Reporters On Obama Admin’s Flynn ‘Unmasking’ Scandal
https://twitter.com/i/status/1263901535462928386
Flynn was being extorted: Plead guilty or we’ll go after your son, bankrupt your family, and throw you both in jail.
This was a *written* deal, which the prosecution kept out of the plea agreement (immoral at best, illegal most likely).
If I hold you at gunpoint and make you sign a confession to committing a crime, and the prosecution eventually throws out the charges after your plea, the judge has no authority to come back at you for perjury since it was made under duress. I, on the other hand, will go to jail for subornation of perjury among other things. (as I understand it, in my non-lawyer experience)
Then every other person who has ever pleaded guilty to reduce sentencing or for any other reason will he guilty of perjury.
This is not the hill you want to be dying on.
mailman,
I made that same argument here a week or so ago.
Since then, I was reminded that Judge Sullivan took the step of placing Flynn under oath for his plea. I had forgotten about that. Will that be enough? Probably not.
For the same reason, Judge Sullivan is not likely to convince the appellate court that he can in effect serve as prosecution and Judge by appointment of some outside party to ‘rep’ the DoJ.
Not a guarantee but it could be a ‘tell’ in that it was a per curium order to Sullivan that cited Fokker which is very recent and very on point.
Keep in mind, however, that no Leftist can be held to the law or Constitution. One thing the last couple of decades has taught us is that there are multiple systems of law depending on ideology, celebrity, genetics, and wealth all interacting with each other in less than logical ways.
Subotai Bahadur
If the plea was under duress, wouldn’t the oath have also have been, in effect, under duress, and not valid?
This was part of the entrapment of Flynn. By having the general under oath he is in am impossible situation. If he pleads guilty then the judge can hit him with a perjury claim. On the other hand, is there any way Flynn, under oath, could say how he actually felt to be innocent but the FBI and others were unfairly pressuring him into a guilty plea to protect his son and such? Had Flynn done this, then the plea bargain would have been thrown out and his family once again placed in danger.
>
This was simply part of the trap where they painted Flynn into a corner that was impossible to escape and now Sullivan is trying to enforce his portion. I was hoping that someone involved would have pointed this all out so that they could go after Sullivan for his clearly unethical behavior, but so far no one is mentioning it.
Guys,
Fokker is a DC Circuit opinion. Sullivan can’t ignore it. If his district was in another circuit, he would be on stronger ground, but he is in the DC Circuit so…
It was reported that Trump lawyer, Cohen pleaded guilty to something that was not on the statute books
leeman, Sullivan is corrupt, part of a cabal intending to overthrow the current president of the USA. The DC court of appeals ordered him to respond, and to respond before his shenanigans are allowed to play out.
He’s on a short leash here. But there’s always the chance more corrupt courtsters will step in to try and drag this out. I don’t think they will be successful, but I’m mindful of the fact they play dirty, very dirty.
Sullivan is in the crapper for his illegal actions.
In other words he done messed his panties on live TV.
According to the Innocence Project, 41 of 367 exonerees (11.1%) pled guilty to crimes they did not commit. Should these 41 exonerees be returned to jail too ?
Does Judge Sullivan want this as his legacy ?
The so-called criminal contempt of court perjury charge is legal nonsense. Criminal case defendants often plead guilty despite being innocent of the state’s charge and do so many varied, complicated reason other than actual, understood guilt. It is especially inappropriate to suggest a possible criminal contempt of court charge where the defense motion to withdraw the guilty plea is premised in part on prosecutorial misconduct Tantamount to the framing the defendant, and the withholding of exculpatory evidence. There would never be any withdrawals of guilty pleas if the defendant had to then worry about some puffed up judge wagging his finger at you and threatening a contempt of court charge.
Clearly, judge Sullivan has lost his way and allowed his own personal prejudices to infect his official acts. He thinks of himself as a player, not an umpire.
The so-called criminal contempt of court perjury charge is legal nonsense. Criminal case defendants often plead guilty despite being innocent of the state’s charge and do so many varied, complicated reason other than actual, understood guilt. It is especially inappropriate to suggest a possible criminal contempt of court charge where the defense motion to withdraw the guilty plea is premised in part on prosecutorial misconduct Tantamount to the framing the defendant, and the withholding of exculpatory evidence. There would never be any withdrawals of guilty pleas if the defendant had to then worry about some puffed up judge wagging his finger at you and threatening a contempt of court charge.
Clearly, judge Sullivan has lost his way and allowed his own personal prejudices to infect his official acts. He thinks of himself as a player, not an umpire.
If Flynn’s current Legal Team is to be believed Flynn did not just get bad advise from his prior lawyers. The Mueler team secretly sandbagged them and got them to turn against their clients interests. Mueler met with the lawyers, without Flynn’s knowlege, and informed them that he was going to criminally charge them and their families as accessories to Flynn’s imagined crimes. Unless a Guilty Plea was put forward. The Lawyers promptly violated ethics and got Flynn to plead guilty against his own interests, in order to protect theirs.
leeman, by that logic then every defendant who pleas not guilty and is found guilty should also be charged with perjury.
Every time a defendant decides to change his plea, he perjured himself? That’s absurd.
It’s not “a card.” A coerced confession is garbage. Even in the lefty corrupted US legal system of today. Frankly, I’m surprised people are still clinging to such a rotten fig leaf of legitimacy, which is no excuse or justification at all.
What are the chances of Sullivan being sanctioned, better yet, removed?
Basically zero. Judges do not sanction judges so that they will not be sanctioned themselves. And Leftist judges are immune from anything.
Subotai Bahadur
None. But he can be embarrassed. And should be. He is acting as stupid as Biden.
Nanzi’s House would never consider impeaching a loyalist judge.
That is why it is important who the new Speaker of the House is in January!
There is a greater likelihood of him being Arkancided for failing in his assigned mission.
Is this an attempt to allow Sullivan to save face? Because his actions represent manifest narcissism, self-aggrandizement, personal bias and flagrant breaches of judicial ethics, to say nothing of unfairness towards the defendant (which he’s been evincing throughout the entire case, through his unhinged comments indicating personal animus towards Flynn).
I don’t understand why the Court didn’t simply grant the writ, unless they wanted to spare Sullivan some embarrassment and a rebuke, which aren’t sufficiently good reasons for not granting the writ.
Judges, as a class, do not openly rebuke other judges very often. Even when they clearly need to be removed from the bench for an inability to maintain impartiality when they should have recused themsevles.
I understand that it is customary for the higher courts to require a response from the lower court before ruling on a writ of mandamus.
“I don’t understand why the Court didn’t simply grant the writ, unless they wanted to spare Sullivan some embarrassment and a rebuke … .”
Black privilege in action.
Oh Emmett. You see what happens when you take phone calls from Barack.
One AA bro speaking with another AA bro.
When you substitute competence for ideology you get AA justice.
AA = Alcoholics Anonymous, Affirmative Action, African American?
Yes.
For the most part, Affirmative Action = the Peter Principle on steroids. At best, nine out of ten are not competent.
One thing is certain. Barack is not going to protect Emmet; even if he was acting on Barack’s instructions.
This man is unworthy of holding an office of Public Trust under the United States of America.
You really have to hand it to Sullivan — he manages to accomplish an appalling trifecta — judicial narcissism, arrogance and manifest breaches of judicial ethics/propriety/decorum and fairness to the defendant, all in one proceeding. What a total disgrace, but, this imbecile is representative of the self-reverential arrogance and narcissism of Dhimmi-crats who have marinated for too long in cozy D.C. sinecures.
Hmmm. Sullivan screwed up so many times because of his big mouth and outsized arrogance, he has brought the shenanigans of liberal judges back into the spotlight.
I recommend that folks read Flynn’s Motion papers — very well-written and providing ample factual history of Sullivan’s “intemperate” behavior throughout the case (that was the very diplomatic, and, accurate, word invoked).
Emerson — ‘When you strike at a king, you must kill him.’ I bet Sydney is intimately familiar with this quote.
There was a discussion the other day as to who has standing to oppose the Petition. Is it possible that this order from the DC Circuit Court is intended to allow the District Court to oppose Flynn’s Petition? Maybe this is necessary if the District Court does not already have standing to oppose?
Otherwise, if the District Court already has standing to oppose the Petition, this looks like a slap on the wrist — “explain yourself, Judge Sullivan!”
In most (all?) of my state court appeals and writ proceedings, the District/Superior Court is designated as the Respondent. Although I have only seen the “real party in interest” file a brief, it is my understanding that the “actual” Respondent District or Superior Court has standing to defend its rulings.
In which case, the District Judge does not need an invitation to defend his conduct, and this looks like a slap in Judge
Sullivan’s face.
When an appellate court is faced with an extraordinary writ of mandamus or prohibition, unless the basis for and relief requested are inappropriate on the face of the petitioner’s moving papers, it is normal for the appeals court to order the trial judge to directly respond to the filing. It is the trial court judge’s conduct placed at issue and therefore he or she must personally respond. Sullivan’s sua sponte order calling on third parties to file amicus briefs and appointing one, very special amicus to essentially stand in the place of the state itself as prosecutor to oppose the defense’s requested relief is a joke. And Sullivan should know it. No amicus is permitted at a trial court level because the criminal rules do not explicitly allow it. No third party can ‘stand in’ for the power of the State. Sullivan knows that which is why his order expressly states, falsely, that the civil rules of procedure (which do allow participation of amici’s) apply to all district court actions. Or words to that effect. They do not. That was make weight authority for a judge gone off the rails. That Sullivan order was comically inappropriate. A joke. His law clerk should have resigned in embarrassment. For Sullivan to have issued that order is a disgrace. I was a federal court law clerk and have 40 years experience in state and federal trial and appellate courts all over the country under my belt. Sullivan’s actions are inexcusable.
“Sullivan’s actions are inexcusable.”
What you write is correct. Sullivan is corrupt. He doesn’t care as he is doing the work of the commie cabal to overthrow the government headed by President Trump.
Not an invitation. An order.
My money says this goes away quickly, with the least possible noise. It’s already in the history books.
Agreed. It was a solid rebuke while allowing the so called judge the ability to end it.
We shall find out if the “judge” is so compromised he has to carry it further on orders…
For once Judge Sullivan faces a situation where he is just a litigant, and not God Almighty. Betcha he is not liking that feeling very much.
There is an ageless legal term for the likes of Judge Sullivan: corrupt asshole.
Only one Obama in that bunch so there is a chance that justice might be served.
Hunter, judge, and Planner, too?
Why is Mr. Madcow’s photo above?
DC Court of Appeals to Judge Sullivan, “Meet the Fokker’s”. As I have said before, the DC Appeals court will get rid of this quickly. They want no part of a Republican House possibly starting impeachment proceedings against Sullivan. That would bring too much sunlight to the DC court.
Could this be plan to disarm the Democrat narrative? Sullivan has to either dismiss the charges or publicly defend the indefensible. “Trump forced the Appeals Court” will be a very tough sell going forward.
My instinct tells me sullivan’s animus towards General Flynn stems from the strzok/page/rudy contreras/FISC situation. The fbi went to rudy contreras (or at least discussed it) in their effort to railroad the General. Then General Flynn’s criminal case ends up before rudy contreras? That whole situation is suspicious at best, but then contreras gets yanked off the case, which indicates SOMEONE somewhere knew it was a setup. sullivan’s actions from early on seem to indicate he was aware General Flynn HAD to go down one way or another, or a bunch of government malfeasance and corruption would come to light. Anyone know what rudy contreras has been doing since being pulled off the General Flynn case?
Flynn still has to pay his lawyer while the judge gets all his court time for free.
Flynn was set up and railroaded, and bankrupted, by corrupt government officials. His very smart lawyer has already done the math on the size of the enormous payday coming from his soon to be filed wrongful prosecution lawsuit.
It won’t be enough but Flynn should make a tidy profit when all is said and done.
Sure, Sullivan keeps getting paid, but the real money was to flow to his buddy-in-crime “former John Gleeson,” most likely hired without any budget cap, at an astonishing hourly rate (which he will continue to milk until he is ordered to stop). Visions of hundreds of billable hours conducting the discovery he will claim he needs to be ready to complete the tasks assigned to him by Sullivan, and then the work to perform those tasks themselves. There is huge money in that type of appointment, enough even to share some with the appointer.
“The process is the punishment”
I can understand that Sullivan is not a fan of Trump or Flynn.
What I can’t understand is how Sullivan has allowed that dislike to override his hatred for when the government misbehaves in his court room in front of him.
If I were him I’d be furious at what I know now about the Flynn prosecution. I’d go ballistic in the courtroom and all but pull out a crossbow and shoot the government prosecutor. The government, using Mueller, has made a mockery of justice. Just like what happened in the Senator Stevens case in front of this very same judge.
TDS is some strong stuff to cloud Judge Sullivan’s mind.
I think you are giving Sullivan too much credit. He is a leftist deep stater, and his priority is resisting Trump “by every means possible.” That is his and their be all and end all.
It helps to understand when you know that Judge Sullivan and Eric Holder have been close personal friends for over 20 years.
That is interesting, and damming. I assume that in an impeachment that all of this POS phone records would be looked into. Any calls from Holder or Obummer, and their timing related to other events would be telling.
Does that make Sullivan Holder’s “wingman?”
Sullivan is corrupt to his very criminal core.
Why not? It must be fun knowing that there will never be any consequences
Uh, if it serves his master obama all’s good.
When your own attorneys are telling you that you have no defense, when the police are telling you that you committed a crime, when the prosecutors are telling you that you committed the crime of lying to the police, nobody is on your side, it’s not a lie to believe it.
I could see myself believing it. Doubting myself. But always stick to your guns.
Flynn was gaslit by the FBI, DoJ, the court, and his lawyers.
I know myself. I’m not a murderer. I am a killer. This isn’t a brag. How do you want your Naval officers? Not willing to kill? That means I am putting everyone else’s life at risk. It’s a decision I made a long time ago. That doesn’t make me a tough guy. It makes me just like your dad or brother. Actually, it makes me a friend to your dad, brother, nephew, uncle.
https://natgeo.imgix.net/factsheets/thumbnails/IwoJimaHeader.jpg?auto=compress,format&w=1600&h=900&fit=crop
My father (who served in another branch of the service) when asked while he and I were hunting what he did for a living and his response was always “professional killer”. After 3 wars he certainly had earned that job description. The reaction in a goose pit was always fun to watch.
I don’t know enough about Sullivan to opine as to his motivation, but if I recall correctly, he presided over the undoing of the unjust conviction of Senator Stevens of Alaska.
Courts issue orders all the time. Ordering Sullivan to respond would be a typical response. Citing Fokker is what makes it more promising.
Agree wholeheartedly with Zombie: Very surprised Sullivan isn’t ORDERING the prosecutors to a hearing to explain why they shouldn’t be held in contempt of court, criminal contempt, for the various violations.
Perplexing.
“…but if I recall correctly…”
Yes, however it came too late as the corrupt Sullivan knew. It did nothing.
Katy, I agree with most of your post, but ordering Sully to respond is a bit stronger than usual. Most often, the writ is dismissed immediately, or the presiding judge is invited to opine.
It’s not very often at all that the judge is ordered to respond.
It’s the difference between may, and must.
I knew Naval officers who didn’t want to get their hands what they called dirty. Like it was beneath them. That attitude disgusted me.
So this in effect makes Lord Sullivan a party in the case. That would seem to preclude him from presiding. He has to recuse himself.
Maybe it’s just me.
How hard is it not to notice it says “Coast Guard” down the side?
https://www.msn.com/en-us/news/us/naval-ships-sound-their-horns-for-frontline-workers/ar-BB14rcg1?ocid=msedgntp
If only these people could learn to say warships.
Warships. Man O’ War. That would cover everything.
Arminius — dude — are you perhaps responding to the wrong thread, or perhaps the wrong blog?
On an slightly different tack, this is the second time recently that Legal Insurrection has hinted at something and invited me to watch a video to find out what the writer is referring to- First in the Abery case I was asked to watch an hour long podcast. Now in the Flynn case, an 18 minute segment of Rachael Maddow.
I do not want to do spend that much time on either case. I do not have that much time to devote to what are interesting, but non-revenue generating (for me) stories. I would ask that the Editors please consider giving a brief summary of the salient points they are finding in these expositions. It reminds me of the guy in my college class who used to tape the professor’s entire lecture rather than taken notes. If he had a question in his mind about any particular thing, he had to listen to the whole lecture to find the answer. I didn’t think it a good system then, and I am still not fond of it now.
Thank you for your consideration,
Free ice cream, mmm, umm, mmm. Hodge, I’m sure someone will be happy to do that if you’re willing to pay…
Barry, “Free Ice Cream” indeed, if I spend an hour in the freezer, gathering the ingredients and making it myself.
I don’t wish to seem ungrateful as I do find Legal Insurrection very informative, but I also think that, as bad a person as I obviously am, I have done nothing evil enough that I should be forced to watch Rachel Maddow for 18 minutes.
I’ll drop the subject now, and get back to lurking silently.
As I say, I don’t watch either. I don’t have the time it takes to watch video, I prefer written by far. But I’m not going to complain about not getting an extra scoop 🙂
By the way, I don’t listen/watch either.
The Coast Guard is a part of the Navy during wartime or other periods of emergency, as designated by the President. I guess I wasn’t really wrong. Here’s to the Coast Guard.
My dad has been dead for 5 years. I miss him.
Affirmative Action hires always learn that it takes real work to keep from looking the fool. Then they just sort of become place holders as everyone around them snickers behind their backs what a lousy job they do. Then the work just keeps on coming and the next thing you know they just stop doing anything hoping they can’t be fired. It must suck going through life that way but the paycheck keeps things rolling. Miserable incompetent fools in positions of authority over others are the worst. Ever who first thought of affirmative action must be burning in hell by now.
According to Wikipedia that would be Saint JFK.
simply don’t understand how, when the government’s entire case is based on illegal/dishonest efforts by law enforcement/doj, and this is known/acknowledged by all sides, that ANYTHING Flynn did in response could be criminal–he was deceived, period–doesn’t presumption of innocence trump all this other nonsense?–how can ANY judge ignore the DOJ(no less) dropping the prosecution?–can some idiot like sullivan, on his own initiative, simply ignore what the government(doj) has acknowledged was a concerted effort(and unethical/illegal in the bargain)to trap flynn and proceed on a false premise anyway?–isn’t this banana republic stuff?
I know “fruit of a poisonous tree” has a specific legal meaning, but it sure seems like the entire case made by Obama’s minions are nothing but poisonous fruit, and how the hell can anyone defend themselves from that.
These guys are missing the defining characteristic of Calvinball: everybody who plays along only becausde they choose to, for fun.
Oh, my. Net:
Explain to us why you’re not making new law here. We’ll wait … but not too long.
He’s proving to be quite a jerk.
It’d be interesting to look back at this caseloads to see if this asshole is knows what he is doing.
The Appeals Court has no business going off on a tangent to attempt to shield Sullivan.
That was not what the Appeals court was requested to do.
These people are making this up as they go along.
So, now TWO COURTS need to be shut out of this case.
This is strange. Since when is it okay for a judge to hire his own outside lawyers and experts to produce his own evidence on a case? Isn’t he just supposed to preside over the presentation of evidence offered by both sides in the trial and rule on its admission? This whole thing makes no sense to me.
Sullivan has destroyed his credibility as a judge. He should be impeached or resign. He is a disgrace. Of course it won’t happen and he will continue his biased ways.
This is an excellent example why judicial immunity must be repealed. With JI backed by an unprincipled, impeachment-proof Congress, it’s open season for fraud by court.