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Michael Flynn Asks Appeals Court to Order District Court to Grant DOJ Motion to Dismiss

Michael Flynn Asks Appeals Court to Order District Court to Grant DOJ Motion to Dismiss

“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:

Flynn has just filed an Emergency Petition for  Writ of Mandamus (pdf.) in the D.C. Circuit Court of Appeals. Here is the Jurisdiction statement:

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.


USA v. Michael Flynn – D.C…. by Legal Insurrection on Scribd


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healthguyfsu | May 19, 2020 at 4:40 pm

Please throw the book at this useless judge

To make this complete and well rounded, I would add an order to fire and disbar Judge Sullivan.

If Obama had a Judge…….


What are the odds the D.C. Circuit Court of Appeals will grant this? Having become a thoroughgoing cynic about all things related to ‘Russia, Russia, Russia’, the Obama admin, and the DC swamp I would guess near zero.

Then what? SCOTUS?

    fishingfool55 in reply to JHogan. | May 19, 2020 at 5:44 pm

    So would I except for the DC court’s own precedent and the 8-0 USSC ruling written by RBG.

      Katy L. Stamper in reply to fishingfool55. | May 19, 2020 at 6:00 pm

      I believe that case was 9-0?

      Am i incorrect?

        Milhouse in reply to Katy L. Stamper. | May 19, 2020 at 6:24 pm

        Sort of. The decision was 9-0, but Thomas wrote his own concurring opinion, so maybe that’s why fishingfool wrote that RBG’s opinion was only 8-0. But I don’t think that’s right, because Thomas didn’t disagree with anything RBG wrote, he just wanted to add that he’s no longer sure the overbreadth doctrine on which the 9th circuit relied is even valid.

      leeman in reply to fishingfool55. | May 19, 2020 at 6:09 pm

      It’s all about the interpretation of the Judge or Judges who are assigned the case.
      Even if the precedent was set by themselves or the supreme court, they will easily find a reason or loophole to argue that it does not apply to this case if they want to.
      After all the law is an Ass.

Shortly after the recent document production, RedState had an article about Sullivan went on record during a court setting questioning or stating that he was not convinced about the “material” test of the lying charge. This was in a hearing where he required Flynn to be sworn in to restate the guilty plea. He then accepted a “Restated guilty plea”. Then later, after accepting the plea, repeated on the record that he still needed convincing of the materiality of Flynn’s statements. RedState claimed this mistake itself was a reversible error which negates that plea.

Someone on another website was wondering why the DOJ couldn’t issue the same kind of writ. Their request to drop the case is being ignored,, they have a dog in this fight.

    amwick in reply to amwick. | May 20, 2020 at 7:15 am

    Lou Dobbs just asked Sidney Powell this very question.. She said that she believed the DOJ would join them.. but they were able to move faster. Hope it’s true..

Katy L. Stamper | May 19, 2020 at 5:57 pm

Folks, OT, but Mr. W.R. Chandler went back to this thread and added several federal code sections under which Obama could be prosecuted.

Just an FYI. I don’t know if he practices in federal court, but here you are:

Katy L. Stamper | May 19, 2020 at 6:12 pm

The release of the unredacted version of Susan Rice’s January 20th, 2017 email should put paid to this, no matter who looks at it.

If we lived in a decent world.

MoeHowardwasright | May 19, 2020 at 6:43 pm

The DC Appellate court can end this now. If they’re smart. Because they know that if the Republicans gain the House and hold the Senate, impeachment of these political judges will start forthwith.
They may not unseat them, but it will damage them and put the federal court system under a microscope. You can bet SCOTUS does not want any part of that!

    “Because they know that if the Republicans gain the House and hold the Senate, impeachment of these political judges will start forthwith.”

    Making funny are we? Republicans are going to impeach a corrupt commie judge? Wishful thinking.

Sulivan needs to be removed from the Court. When was the last time we impeached a Federal Judge? Oh right it was the guy that then went to Congress and was part of Pelosi’s expert “Impeachment Team”. Alcee Hastings.

And he just ruled that he will accept all briefs and scheduled oral arguments for July 16

Gonna keep kicking that can all the way to November

Blaise MacLean | May 19, 2020 at 8:37 pm

I think Flynn and counsel have an uphill fight at this stage. She seeks Mandamus (quaere: why not prohibition?) but any prerogative writ against a court is going to be a struggle. I think Sullivan FDCJ provided some ammunition when he went so far as to suggest a possible “perjury” charge relating to the guilty plea averments. There is overreach and then there’s OVERREACH!

Who is going to oppose Flynn’s motion? Not the DOJ, obviously, and there is no other party. Sullivan FDCJ can’t be a party can he?

I hope the District Court of Appeal comes down hard on Sullivan.

thad_the_man | May 19, 2020 at 8:37 pm

The most recent news is that Judge Sullivan has scheduled oral arguments. Strange I thought that after filing the wit, the Judge would grant the motion, just to get ahead of the Appeals Court. If he wanted to get back at Powell, he could just hint that she didn’t wait long enough.

The thing that really interests me here is who is going to file a response to the motion for a writ?

If the Appeals Court grants the writ, who can appeal the ruling?

    aNanyMouse in reply to thad_the_man. | May 19, 2020 at 10:43 pm

    No one can appeal, if they weren’t part of the original litigation contest, before Sullivan or the Circuit.

    I can see Gleason trying to argue, that he became part of the original litigation, once Sullivan brought him in.
    But, I’d be staggered if the Supremes bought that line.

Sullivan teeters between a clown and a legal imbecile.