“Confidence in the rule of law, and the willingness of federal judges to administer it impartially, will continue to erode, if this Court fails to put a swift end to this spectacle.”
Judge Emmet Sullivan has opened up the District Court criminal prosecution to an outsider, former Judge John Gleeson, to argue why Sullivan should not dismiss the case against Michael Flynn even though the Department of Justice wants to drop the case based on FBI and prosecutorial misconduct. Gleeson has a documented history of hostility towards Flynn.
Not only that, but Sullivan wants Gleeson to argue whether Flynn should be held in criminal contempt of court for perjury, presumably for swearing under oath that the was guilty, but now denying that guilt.
It’s a high stakes game not only politically, but also because the sad reality is that people sometime plead guilty to crimes they did not commit in order to avoid potentially long prison sentences, or in Flynn’s case, to save his son from prosecution. See these posts for the unusual background:
- 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’
This petition seeks an order directing the district court to grant the Justice Department’s Motion to Dismiss its criminal case against former National Security Advisor to President Trump, Lieutenant General Michael T. Flynn (Ret.) (“Motion to Dismiss”). ECF No. 198. The Government moved to dismiss the Information charging a violation of 18 U.S.C. §1001 after an internal review by United States Attorney Jeffrey Jensen unearthed stunning evidence of government misconduct and General Flynn’s innocence.
This Court has jurisdiction pursuant to the All Writs Act, which authorizes federal courts to issue writs “in the aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). 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). The district court’s sua sponte appointment of an amicus to oppose the Government’s motion and its Minute Order to issue a schedule for additional amici are at loggerheads with the unanimous Supreme Court opinion in United States v. SinenengSmith, No. 19–67 (U.S. May 7, 2020).
Here is the Relief Sought:
Petitioner respectfully requests that this Court order the district court immediately to (1) grant the Justice Department’s Motion to Dismiss; (2) vacate its order appointing amicus curiae; and (3) reassign the case to another district judge as to any further proceedings.
And the Issue Presented:
Whether the district court exceeded its authority and egregiously abused its discretion by failing to grant the Government’s Motion to Dismiss the Criminal Information and, instead, appointing an amicus to oppose the motion and to propose contempt and perjury charges against General Flynn, while inviting additional amici.
More from the argument in the Petition:
In granting Mandamus, this Court noted in Fokker Servs., “numerous decisions of the Supreme Court and this court made clear that courts generally lack authority to second-guess the prosecution’s constitutionally rooted exercise of charging discretion.” Fokker Servs., 818 F.3d at 750. Impairment of the Government’s authority to make prosecutorial decisions suffices to make this an appropriate case for mandamus, but there is much more.
First, Petitioner, through no fault of his own, has been drawn into a Kafkaesque nightmare that is a cross between The Trial and In the Penal Colony. He has been subjected to deception, abuse, penury, obloquy, and humiliation. Having risked his life in service to his country, he has found himself the target of a political vendetta designed to strip him of his honor and savings, and to deprive the President of his advice. He has been dragged through the mud and forced, through coercion and the artful withholding of information crucial to his defense, to confess to a crime he did not commit—indeed, to a crime that could not exist. Having at last, through the relentless determination of his current counsel, brought the truth to light, he now learns that the judge who is charged with adjudicating his case impartially has, in Judge Posner’s words, decided to “play … U.S. Attorney.” The equities demand an end to this nightmare and restoration of General Flynn’s freedom and peace of mind.
Second, the reputation of the judiciary is in jeopardy. As the Chief Justice memorably stated at his confirmation hearings, the function of a judge in our system of government is to “call balls and strikes, and not to pitch or bat.” The district judge in this case has abandoned any pretense of being an objective umpire—going to0 far as to suggest that a criminal defendant who succumbs to a coerced and unfair plea bargain should be prosecuted for contempt.
In the midst of a national election season, with unprecedented acrimony on all sides of the civic debate, the district judge has dragged the court into the political hurricane—cementing the notion that judges are politicians in robes who use their authority to thwart what they consider the “corruption,” “impropriety,” and “improper political influence” of another one of the political branches.
Confidence in the rule of law, and the willingness of federal judges to administer it impartially, will continue to erode, if this Court fails to put a swift end to this spectacle.
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