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Judge Emmet Sullivan to Appeals Ct in Flynn Case: It’s Premature To Order Me To Dismiss The Case

Judge Emmet Sullivan to Appeals Ct in Flynn Case: It’s Premature To Order Me To Dismiss The Case

“There is no basis for ‘directing the district court to grant’ the government’s motion to dismiss … before the district court has considered and decided it.”

The last we checked in on the Michael Flynn court proceedings, The Appeals Court Orders Judge Emmet Sullivan To Explain His Actions In Michael Flynn Case:

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)….

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….

For background on the Petition for Mandamus filed by Flynn in the appeals court and prior proceedings, see these prior posts:


All along, it was clear that one issue would be whether it was premature to seek an Order of Mandamus, since Judge Sullivan had not yet refused to dismiss the case or found Flynn in contempt. In effect, Flynn was seeking an Order compelling Judge Sullivan to do something he had not yet refused to do.

Yesterday both the Department of Justice and Judge Sullivan filed Briefs, and both addressed the issue.

The Brief for USA supports the request that the Court of Appeals order the case dismissed, and was signed by the Solicitor General:

The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes. Exercising that Article II power here, the Executive filed a motion to dismiss the indictment, and petitioner consented. Despite that exercise of prosecutorial discretion, and the lack of any remaining Article III controversy between the parties, the district court failed to grant the motion and bring the case to a close. It instead appointed an amicus curiae to argue against dismissal and to consider additional criminal charges.

This Court should issue a writ of mandamus compelling dismissal. Federal Rule of Criminal Procedure 48(a) provides that “[t]he government may, with leave of court, dismiss an indictment.” That language does not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading of the Rule would violate both Article II and Article III. Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own. Instead of inviting further proceedings, the court should have granted the government’s motion to dismiss. And given the court’s infringement on the Executive’s performance of its constitutional duties, a writ of mandamus is appropriate, as this Court held in similar circumstances in United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016).

Here is the section on whether Mandamus is premature:

The only distinction between the cases is that, in Fokker and In re United States, the district court had entered an order denying the motion, while here the district court has entered an order providing for further proceedings and contemplating additional, court-initiated criminal charges. That distinction makes no legal difference. This Court has emphasized the “settled constitutional understandings under which authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.” Fokker, 818 F.3d at 741 (emphasis added). Courts have “no power” under Rule 48(a) “to scrutinize and countermand the prosecution’s exercise of its traditional authority over charging and enforcement decisions.” Id. at 742-743 (emphasis added). Indeed, the threat of intrusive judicial proceedings and criminal charges—and potentially even evidentiary proceedings if the court-appointed amicus has his way—only makes the separation-of-powers problem worse. The district court plans to subject the Executive’s enforcement decision to extensive judicial inquiry, scrutiny, oversight, and involvement. Under the Supreme Court’s and this Court’s precedents, it is clear and indisputable that the district court has no authority to embark on that course.

In his own Brief, represented by attorney Beth Wilkinson, Judge Sullivan focused heavily on the timing. Here are excerpts from the Brief for Sullivan:

The unique facts of this case warrant evaluation by the trial judge before any review by this Court.

It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he commit-ted the crime. It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.

These reversals presented Judge Sullivan with several substantial questions….

There is no basis for “directing the district court to grant” the government’s motion to dismiss (Pet. 1) before the district court has considered and decided it. Mandamus is an inappropriate vehicle for resolving a pending motion….

These settled principles resolve Mr. Flynn’s petition. Judge Sullivan has not ruled on the government’s motion to dismiss or any issues regarding contempt. If either issue is resolved unfavorably for Mr. Flynn, he can pursue review in this Court. See, e.g., United States v. Hamm, 659 F.2d 624, 625 (5th Cir. Unit A Oct. 1981) (en banc) (reversing district court’s Rule 48 ruling after judgment). And if such circumstances arise, this Court will be better equipped to evaluate the issues with the benefit of any determinations Judge Sullivan may make.

The fact that Judge Sullivan has decided nothing yet distinguishes this Court’s decision to grant mandamus in Fokker…. Because no decision has been made here, Mr. Flynn does not face any comparable harm. Indeed, his petition largely elides the “no other adequate means” criterion. See Pet. 27–28. To the extent Mr. Flynn, who has been released on his own recognizance throughout the proceedings, Dkt. 5, claims harm from the pendency of his criminal case, that does not suffice….

Mr. Flynn likewise errs in seeking mandamus on the basis that further proceedings in the district court “will subject [DOJ] to sustained assaults on its integrity.” Pet. 28. Judge Sullivan has not disparaged DOJ’s integrity in any way. And although the government has attacked the investigation of Mr. Flynn, it has not asserted any misconduct by the career prosecutors who pre-viously oversaw the case. In any event, given the serious allegations in Mr. Flynn’s most recent sworn statement, further proceedings in the district court will ensure the integrity of the judicial process and serve the public interest.

I think the prematurity issue is serious, and if Flynn loses on the Mandamus petition, that will be the ground. That said, what Judge Sullivan has done is so unusual in a criminal prosecution context, I don’t see Judge Sullivan ultimately winning on that.


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Who is so afraid of Flynn?

    txvet2 in reply to MarkS. | June 2, 2020 at 8:29 pm

    The entire Obama Administration. That’s why they went after him in the first place.

      Tom Servo in reply to txvet2. | June 3, 2020 at 9:07 am

      Sullivan’s defense of his action’s comes down to “I’M RICK JAMES, BIYOTCH!”

      His actual plan, which is now obvious to all, is to try and drag out this process through endless hearings and “considerations” until hopefully (For Sullivan) Joe Biden can be elected in November and install a new team that we re-instate the Prosecution. That’s the real game that’s being played here, it is all ABOUT Time.

        Edward in reply to Tom Servo. | June 3, 2020 at 9:25 am

        Even if not hoping for a Biden win, he obviously hopes to use the case to influence the election.

        JohnC in reply to Tom Servo. | June 4, 2020 at 6:18 am

        Found elsewhere:

        Cliff’s Notes version of Judge Sullivan’s brief:
        “I find it unusual that a defendant railroaded into a guilty plea should find themselves in a position to withdraw that guilty plea”.
        “We made him cross his fingers and hope to die, stick a needle in his eye, eat a horse manure pie, should he tell a lie by threatening to put him or his family in jail if he didn’t.
        So, no take-backs.”
        “The lawyers who made it possible to do all of this were totslly awesome and the defendant agreed after we made him say as much.”
        “I really don’t like this guy. But that is irrelevant because the defendant said himself, that he is very unlikable.”

Dantzig93101 | June 2, 2020 at 6:32 pm

Even if they know they’ll lose, the Communists and deep state scum will make us fight for every single inch of territory. They never quit, though of course it helps that they can pay their own salaries with our tax dollars.

If they weren’t evil, their tenacity would be admirable. They truly believe that America must be destroyed. Stalin himself couldn’t have wished for greater loyalty to the cause.

Looks like the new lawfare trend, as seen in the 2nd AMT cases dismissed as moot, is to abuse the procedure rules.

Sullivan’s stunt is designed with three goals in mind 1. Let the former judge hack a rant about the erosion of the rule of law under Trump (and maybe Sullivan will get a rant in too). 2. Paint Flynn as a liar (perjurer as Obama suggested) for backing out of his guilty plea, and 3. Drag all this out to inflict maximum pain on Flynn (which should alone get the judge disbarred). Each of these goals will be achieved if the writ of mandamus is denied, even if judge Sullivan ultimately dismisses the case. Although Sullivan’s true goal is to hold Flynn guilty of one of the two crimes, even if he will get reversed on appeal, just to give the FBI shenanigans legitimacy.

    rabidfox in reply to Dr. Ransom. | June 3, 2020 at 7:03 am

    The thing is, that if Flynn is convicted of perjury he cannot be considered a viable witness in any court proceedings going forward. The deep state HAS to shut Flynn down one way or the other to keep him from testifying in the future.

    bean spout in reply to Dr. Ransom. | June 3, 2020 at 9:15 pm

    It’s not perjury. The plea bargain was imposed on Flynn by corrupt Obama prosecutors who knew damned well Flynn had neither lied nor done any other worse crime for which the plea was being portrayed as being cut, to the corrupt media. In my view, Sullivan wants to get to the facts of THAT corruption, which is why he doesn’t want this case to be tossed now. The corrupt way in which fake, false plea bargains are imposed is something that should be explored in court and with fact findings that will only help Flynn get recompense. Including in a malicious prosecution civil suit later.

“I think the prematurity issue is serious, and if Flynn loses on the Mandamus petition, that will be the ground.”

Could be, but if Sullivan is acting beyond his jurisdiction in appointing Gleeson and having him investigate the circumstances of the DOJ’s motion to dismiss, wouldn’t it make more sense to stop him now? If the appeals court declines to act now and lets Sullivan continue on this course, they are essentially telling Sullivan he can go ahead with his judicial inquiry into the appropriateness of the dismissal motion, despite the fact that the trial court has no constitutional authority to conduct such an inquiry. Seems like the appeals court either has to shut down Sullivan now, or else they are giving tacit approval to him acting beyond his jurisdiction.

    McGehee in reply to Observer. | June 2, 2020 at 6:58 pm

    This. The American judicial system does not contemplate judges — especially not TRIAL judges — acting without law or evidence.

    In this case, the law does not authorize the judge to keep a charge alive when both parties have moved to dismiss.

    Barry in reply to Observer. | June 2, 2020 at 8:51 pm

    This 2.

    It’s a farce.

    Rick in reply to Observer. | June 2, 2020 at 8:57 pm

    So, I take it, if Sullivan rules that he may burn down the courthouse, the appeals court cannot act because Sullivan has not yet decided?

    Joe-dallas in reply to Observer. | June 3, 2020 at 8:52 am

    “Could be, but if Sullivan is acting beyond his jurisdiction in appointing Gleeson and having him investigate the circumstances of the DOJ’s motion to dismiss””

    Sullivan’s inquiry (or attempt to begin an inquiry) is directed to whether Flynn committed perjury with a hint as to whether there was undue political influence in the dismissal.

    Unfortunately, Sullivan’s filing has almost zero reference to any misconduct by the FBI – which is where the inquiry should be directed. The appointment of Gleason tends to indicate Sullivan has zero interest in any FBI/DOJ misconduct, with the exception that the dismissal. Apparently Sullivan’s considers the DOJ’s dismissal to be the DOJ’s misconduct.

      Edward in reply to Joe-dallas. | June 3, 2020 at 9:33 am

      Not to mention that Sullivan has shown Zero interest in the Bureau very obviously failing/refusing to honor his much vaunted order of complete and honest discovery with all Brady material turned over to both the Defense and the Court. At this point he is studiously ignoring the implications of the SCO/Bureau’s conduct with regard to the lack of predication of the criminal investigation and subsequent prosecution of LTG Flynn.

      sidwhite in reply to Joe-dallas. | June 3, 2020 at 9:52 am

      (I haven’t read all comments so these may have been covered.)

      Something I’m wondering is whether the appeals court will even consider the brief from Ms. Wilkinson. The brief was written in third person and not signed by Sullivan. She explained legal theories. The Judge is yet to explain what he did in light of the case referenced by the appeals court in its order for the brief. Court could say “still waiting on Sullivan’s brief we ordered”.

      She did make a fundamental error stating that the judge had found Fllynn’s “false” statements “material”. Court records show that Sullivan specifically stated he didn’t yet get that and needed to hear more on the “material” aspect of the statements, then never revisited that subject. DOJ eventually determined that any Flynn statement was not “material” to any ongoing investigation.

        Joe-dallas in reply to sidwhite. | June 3, 2020 at 11:03 am

        As noted above, I have my complaints with Sullivan’s response, primarily its failure to address the misconduct by the FBI & DOJ and Sullivan’s attempt to portray that such misconduct is either non-existent or irrelevent to Flynns change in plea / perjury.

        That being said, Sullivan doesnt need to sign the response once the reply brief states that the attorney is the counsel for the respondent.

        Observer in reply to sidwhite. | June 3, 2020 at 5:51 pm

        If you read the Sullivan brief that Wilkinson wrote, it says (on page 25) that after the Court of Appeals ordered Sullivan to file a response to the mandamus petition, Sullivan was authorized by the Administrative Office of the U.S. Courts to obtain counsel for himself, under 28 U.S.C. sec. 463.

        So yes, the appeals court will consider the brief filed by Sullivan’s counsel as his response.

          Barry Soetoro in reply to Observer. | June 5, 2020 at 1:22 am

          “Whenever a … judge … of any United States court is … required to defend acts taken … in his official capacity, and the services of an attorney for the Government are not reasonably available pursuant to chapter 31 of this title, the Director of the Administrative Office of the United States Courts MAY pay the costs of his defense. The Director shall prescribe regulations for such payments subject to the approval of the Judicial Conference of the United States.”
          -28 USC §463 (emphasis added)

          Sullivan is apparently a member of the Deep State in good standing, but there may well be many more such members in the federal judiciary working to ensure Flynn’s credibilty stays destroyed.

      Observer in reply to Joe-dallas. | June 3, 2020 at 5:43 pm

      No, Wilkinson’s brief spends about 15 pages arguing that Sullivan had every right to hire Gleeson to conduct an investigation into whether the DOJ’s motion to dismiss “serves legitimate prosecutorial interests” and “adequately protects the public interest.” It is quite a bit more than “a hint,” in fact, it is the bulk of her argument.

      She only devotes a couple of pages to the argument that Gleeson needs to look into the possibility of contempt charges against Flynn.

    bean spout in reply to Observer. | June 3, 2020 at 9:18 pm

    No, it is the facts that Flynn has alleged, the corrupt plea bargain imposed on him, that the judge is interested in finding. You toss the case now you cannot nail the prosecutors for their malice in imposing an entirely false plea that also does not reflect any step down from any other more serious crime they could have charged. The only way Flynn manages to clear his name fully is if Sullivan continues this case and inquires into the facts of the corrupt plea.

Does anyone who’s a legal expert know why Strzok hasn’t been charged with any crimes?

It seems to me that Strzok changed the 302 and lied early and often about what Flynn had actually said. I believe he also hid the motives for interviewing Flynn and for not telling him he was a suspect and should have an attorney with a tape recorder.

    McGehee in reply to OldProf2. | June 2, 2020 at 7:02 pm

    In practical terms, the likely reason is prosecutorial discretion — the very thing Judge Sullivan is attempting to undermine by delaying dismissal in the Flynn case.

    Maybe if Sullivan gets away with it, he can then overrule DOJ’s failure to prosecute Strzok next (yeah, that’ll happen).

      Tom Servo in reply to McGehee. | June 3, 2020 at 9:11 am

      Also, in Practical Terms, before charging Strzok, Barr has to know that he has a reasonable chance of NOT drawing a Judge like Sullivan, who would immediately dismiss all charges because Eric Holder ordered him to on the phone.

    rebelgirl in reply to OldProf2. | June 3, 2020 at 9:31 am

    He hasn’t ‘yet’ been charged. It seems likely that the DOJ would like this Flynn case off the books before they proceed…although Durham may have this under his purview.

    Edward in reply to OldProf2. | June 3, 2020 at 9:47 am

    In part it depends on where and how he had claimed all the things he has. IF his statements were under oath, he has to be worried about Durham. If not under oath, he has little to worry about for those statements. Altering the 302 (and his girlfriend also “editing” the 302) may open him (and her?) to a charge of falsifying a government document.

    I was stunned to read that the 302 written by the case agent (Joe what’s his name?) was subsequently changed by the above two, particularly the girlfriend. Are the Bureau S/As such poor writers that both Bureau superiors and DoJ lawyers must edit (change) them? I worked for a different agency which also used the 302. When I conducted an interview I kept minimal notes, stopped at a DQ after leaving the interview and wrote my draft 302 there. When I returned to the field office (usually the following Monday after a week on the road) I typed the 302, rarely deviating from the draft and never in any meaningful way (i.e. punctuation would usually be the only change). I sent it to my Assistant Special Agent in Charge (ASAC) who approved it and it went to the case file in hard copy. My ASAC never edited 302s, though I do know he sometimes offered grammatical suggestions to other S/As, but the S/A had to agree and make the change, he did not.

If Sullivan is even capable of refusing to dismiss when both sides move for it, the logical result is that a judge can send officers to arrest someone without an indictment or any information from an executive branch agency, and put that person on trial without evidence or testimony developed independently of the judge’s direct authority.

That’s banana republic stuff.

If Sullivan is NOT capable of refusing to dismiss when both sides have moved for it, any action he undertakes to avoid or delay that dismissal is outside his authority and mandamus is appropriate.

I know judges don’t like to hear this, but we are a nation of laws, not judges.

    ray in reply to McGehee. | June 3, 2020 at 12:31 am

    The militia may need to step up and remove Sullivan through Natural Law.

    Edward in reply to McGehee. | June 3, 2020 at 9:55 am

    The common explanation for why a Judge would use the Senate added* language for Judicial discretion in Rule 48a is that a Judge may find the Prosecution is attempting to break a defendant by bringing prosecution and dismissing prosecution multiple times to cost the defendant all his funds in defense. Seems like a stretch, but could be possible. LTG Flynn lost all his money and home to his original conflicted lawyers, so it doesn’t take multiple prosecution cases.

    * The Court had no discretion under the language of the Rule the Chief Justice sent to the Senate for approval and the Senate (staffers) provided no explanation or directions for the added provision.

    Milhouse in reply to McGehee. | June 3, 2020 at 11:45 am

    No, that doesn’t follow logically. Even if Fokker had been decided differently, and a judge could refuse a motion to dismiss that is supported by both parties, the case would still have to be properly before him in the first place, as it is here. What you are talking about is the main constraint on judges’ power, which prevents them from turning into dictators, which is that they have to wait for cases to be brought to them and can’t just initiate them sua sponte. And that would remain even if, once a case is before the judge, he didn’t have to let it go.

stevewhitemd | June 2, 2020 at 7:00 pm

Ms. Wilkinson writes:

And although the government has attacked the investigation of Mr. Flynn, it has not asserted any misconduct by the career prosecutors who previously oversaw the case.

Now THERE is an interesting point, perhaps the single good point made by Judge Sullivan. The government has yet to assert explicitly any misconduct by the former prosecutors (van Grack, etc.), nor by the previous defense counsel. Nor has it charged Mr. Strzok and others who are now said to have changed the 302 forms, etc.

In other words, the DoJ wants General Flynn’s case to go away, as do most all of us, but perhaps for different reasons — we because we have come to see that the General is innocent and was being railroaded, and the DoJ because they don’t want to have to prosecute the ones who were doing the railroading.

It’s as if Ms. Wilkinson is daring the DoJ — oh, you want to drop the case because of the misconduct? Very well, explain the misconduct. In writing.

    McGehee in reply to stevewhitemd. | June 2, 2020 at 7:04 pm

    Unfortunately, Judge Sullivan is unlikely to be so inclined.

    Observer in reply to stevewhitemd. | June 2, 2020 at 7:40 pm

    We know about some of the misconduct by van Grack, the line prosecutor. According to the IG who investigated the handling of the Flynn case for AG Barr, van Grack failed to turn over numerous exculpatory Brady materials to Flynn, despite repeatedly assuring the court that he had done so.

    There was also the matter of the side deal (between the Obama DOJ and Flynn’s first lawyers at Covington) not to prosecute Flynn’s son (for failing to register as a foreign agent) in exchange for Flynn’s guilty plea. That side deal was a material agreement that was required to be disclosed to the court at the time the plea deal was submitted. Van Grack signed a statement, under oath, that there were no side deals that had not been disclosed. IOW, he perjured himself.

    I haven’t read all the court filings in the case, but I believe that Flynn’s new lawyer Powell has pointed out these things in previous filings. I recall reading that when the IG was discovering and turning over the wrongfully-withheld Brady materials (the FBI case notes, etc.) to Flynn, Powell was filing multiple motions using each of the documents as further grounds for withdrawing the guilty plea, and Sullivan got annoyed with the piecemeal approach and ordered her to wait until she had all the documents and file a consolidated motion at that time.

    In any event, there has been extraordinary government misconduct in this case, by both the Obama DOJ and the Obama FBI. Just because none of the bad actors have been criminally charged yet doesn’t mean the conduct didn’t occur, or that there isn’t substantial evidence of it. We have seen, among other documents, the withheld (by van Grack) FBI case notes about how the agents were trying to lay a perjury trap for Flynn and/or get him fired, and the letter to van Grack from the Covington lawyers, verifying the side agreement not to prosecute Flynn’s son.

    The evidence of the DOJ’s misconduct is in the record, and it is substantial and undeniable.

      prtomr in reply to Observer. | June 8, 2020 at 7:20 pm

      Exactly! Sidney Powell has her guns locked and loaded on both the government prosecutors and Obama’s sidekick’s law firm Covington & Burling. I see civil suits at the least against C & B and possible criminal penalties for Weissmann et al.

    That turns the rule of law on its head. In order to prosecute somebody (in theory), the DOJ has to document up a detailed description of every step in the case, every movement of evidence, every statement of fact, so there is not the shadow of a doubt about the guilt of the perp.
    (Note: I am specifically ignoring that the DoJ in this case *hid* every single bit of evidence from the original 302 form to the actual transcript of the call)

    In order to *drop* a charge, the DoJ merely has to state that it no longer can prove its case. The judge seems to think the DoJ is now require to prove Flynn’s innocence beyond a reasonable doubt, which is just nuts.

    denizen in reply to stevewhitemd. | June 2, 2020 at 9:55 pm

    It’s hard to fathom how the prosecutors could have complied with their Brady obligation to turn over exculpatory information. They have an obligation to do an independent investigation to make sure that happens; they can’t just rely on FBI agents to tell them about it.

    Once again it seems DOJ does not want to go after bad actors. How does one not conclude that Barr may be part of the problem and another bad appointment by Trump – along with Sessions, Rosenstein and Wray?

    puhiawa in reply to stevewhitemd. | June 3, 2020 at 1:38 am

    The FBI/DOJ cabal appears to be a nest of corruption on a parallel with organised crime going back perhaps since its inception. Never has anything in my lifetime convinced me that these attorneys are anything other than corrupt. Surely not in recent years.

    Edward in reply to stevewhitemd. | June 3, 2020 at 9:58 am

    Perhaps an alternative explanation is US Attorney Durham’s team is still in the investigation stage for all the potential criminal acts which might have been involved. IF that is the case (and it may not be), then no confirmation of it would usually be forthcoming until the Grand Jury issues an indictment (and assuming the Indictment isn’t sealed).

So what that Sullivan, this case’s AA judge, hasn’t made a final order. Given the facts in their totality – that the parties have all agreed on all points and therefore there is no longer any case or controversy – what remains for him is purely ministerial (minstrel may be more apt) in nature. Seems to me that the appeals court should recognize that.

I guess that this is the same principle prosecutors argue that 5 years is still a “speedy trial” under the constitution.

Timing? Premature? Asking for amici, appointing a second prosecutor, and the rest?

If that fails, can he keep asking of another round, than another until 2030?

If there were any gray areas, e.g. the prosecution wanted to drop one of many charges, there was something serious at issue (e.g. this was a violent, not process crime), or something else I might understand.

Justice delayed is justice denied.

Delay, delay, delay.

Ok, thanks for confirming we have no working justice system and are now officially a banana republic.

thad_the_man | June 2, 2020 at 7:08 pm

You did not reference the part DOJ’s response, which states Cheney on timeliness:

“Before a court may issue the writ, three conditions must be
satisfied: (i) the petitioner must have ‘no other adequate means to attain the relief he desires’”


‘The Court explained that the mandamus petitioner—there, the government—lacked adequate alternative means to obtain relief, because “interlocutory appeal [wa]s unavailable, and appeal after final judgment” would have been “inadequate.” Id. at 747. ‘

The point here being that waiting till final judgment is inadequate.

This struck me as almost prescient of Sullivan’s argument that mandamus can wait till final judgment.

Also the fact that the Solicitor General signed this, which is a strong argument that the government is willing to take it to SCOTUS, if necessary.

    Edward in reply to thad_the_man. | June 3, 2020 at 10:02 am

    Indeed, it is very unusual for the Solicitor General to be involved in a case, perhaps particularly a criminal case, not before the SCOTUS.

      Edward in reply to Edward. | June 3, 2020 at 10:05 am

      But then it is very unusual for a District Judge to have a Circuit Court order an explanation of conduct on the bench and for that District Court Judge to hire a lawyer (at taxpayer expense no less) to write the FU to the Circuit Court’s demand.

If he rules against Flynn, let’s all go riot. Only half kidding.

The process is the punishment.
This activist judge is playing on every possible technicality to prolong this punishment. He does not belong in the bench, unethical POS.

bobinreverse | June 2, 2020 at 7:26 pm

This case ceased being US v Flynn and morphed into Barry v DJT quite a while back. So Sully and Ms Gregory both know they can take their Sweet time. To obfuscate delay here. they know that eventually case is going to sup ct no matter what and robby Roberts will protect Barry just like with Barry care. he Robby came up with the tax dodge.

    Edward in reply to bobinreverse. | June 3, 2020 at 10:09 am

    If the Circuit Court requires Sullivan to dismiss or, better yet, removes Sullivan from the case and orders a real Judge to dismiss the case, there can be no appeal. When the government loses in a criminal case there is no appeal of the loss. It’s over. In this case the government has joined the defendant in opting for dismissal, why would the DoJ want to appeal even if they could?

Brave Sir Robbin | June 2, 2020 at 7:36 pm

“The point here being that waiting till final judgment is inadequate.”

Yes, since “final judgment” means after all appeals are exhausted.

But the judge wants to do more than simply withhold judgement, he wants to conduct an open ended investigation into something he has no power to investigate or act upon. In the end, the president can simply pardon Flynn. So all this is simply playacting for no purpose than to further undermine the rule of law. I hope it does not stand.

    rabidfox in reply to Brave Sir Robbin. | June 3, 2020 at 7:11 am

    A Presidential Pardon assumes guilt on the part of the pardoned party. A President Pardon would say that “Yes, General Flynn deliberately lied to the Government investigators.” A pardon would mean that General Flynn would have no recourse against his former lawyers – the ones that sold him down the rivers to keep their own activities in the FARA documentation from being examined.

    Even if Sullivan is allowed by the Circuit Court of Appeals to continue a while longer, there is little doubt that Sullivan will lose at the end in the Circuit Court. At that point it is all over. Period, the end. All Sullivan is trying to do is keep LTG Flynn twisting in the wind, costing him the price of his now excellent defense by Sidney Powell. As others have noted, the process is the punishment because that is all the Socialist-Democrats have.

      ConradCA in reply to Edward. | June 3, 2020 at 1:55 pm

      Seems to mean that someone should organize a gofundme campaign for General Flynn’s defense.

Previously, I had posted that Sullivan’s decision to retain counsel was simply to request an extension of time as a delaying tactic. Well, I was half right. Sullivan’s attorney filed an answer that results in delay, while not actually asking for one. The purpose is to push this as far into the future as the procedural rules will tolerate.

I’ve been waiting to hear what everyone has to say. My opinion is Sullivan is delaying to punish Flynn some more, cover for some bad prosecutors, hope that Trump loses in Nov and a new AG takes over.

DC Circuit Court scheduled oral arguments on the writ of mandamus for Friday June 12, 2020, at 9:30am EDT.

    Edward in reply to Tel. | June 3, 2020 at 10:33 am

    :I know they are trying to show how carefully they are considering the issue, but orals are a waste of the taxpayer’s money (I now their salaries are paid no matter what, but Sullivan’s lawyer is on the taxpayer’s dime (OK, thousands of dollars to be accurate) and would otherwise no longer being paid by the taxpayers but for preparation and appearance at the oral arguments.

The premature argument is a ridiculous red herring. In the first place, the prosecution has admitted that the actions of the previous prosecutors were horribly if not criminally flawed. The defendant has stated, through his attorney, that he only pled guilty because the prosecution ws threatening his family with legal action. Right there, is sufficient grounds to dismiss the case. On top of that, the prosecution has stated it is withdrawing the complaint against the defendant and that it is not seeking to try him in the future. The natural act of the judge, in such a case, would be to dismiss the case against the defendant and to publicly castigate the prosecution for its actions. That the judge chooses to ignore the actions of the prosecution and seeks to continue this case is the most unusual aspect of the whole thing. How do you spell judicial bias? Sullivan.

Randy in Arizona | June 2, 2020 at 8:06 pm

Any chance Flynn might be tossed in the jug for contempt of court?

IANAL. Please explain exactly what Sullivan is doing? From the legal perspective. no snark, no politics, just law.
From what I know, Sullivan has no options. The notion that Barr is corrupt, from a legal perspective is moot. Exactly how is Sullivan going to pursue his suspicions? He has no power to compel testimony. Sullivan has no mechanism to hear testimony and do cross examination. Sullivan has no pathway to do any examination of fact, not already adjudicated.
Unless I’m missing something, his calling for amici yield zero infomation to base any decision.

    denizen in reply to iowan2. | June 2, 2020 at 9:58 pm

    He could order an evidentiary hearing on the motion and demand witnesses unless the D.C. Circuit stops him.

      iowan2 in reply to denizen. | June 2, 2020 at 11:31 pm

      How would Sullvian pick witnesses? The judiciary lacks any investigative tools. How is Sullivan going to carryout and adversarial process, he demands? I’m lost and need the nuts and bolts explained to me.

        rabidfox in reply to iowan2. | June 3, 2020 at 7:17 am

        Iowan, there really is no legal basis for what Sullivan is doing. He is usurping the function of the DOJ – an Administrative function – from his bench – a Judicial function. The Judiciary Branch is kept separate from Administrative Branch for a reason – so that they are independent of the group that is bringing charges. What Sullivan is doing is breaching that separation.

      denizen in reply to denizen. | June 3, 2020 at 4:18 pm

      The easiest thing to do would be to order the Government to show cause (present witnesses) why its motion to dismiss should be granted. Then it would be up to the Government to figure out who it wanted to present. If Sullivan wanted particular witnesses to testify, he could lean on the Government to present them. Even if the court doesn’t have a formal power to subpoena witnesses—I’m not sure—it could probably get them there informally unless the Government adamantly refused.

      None of this would be appropriate, but I think Sullivan has the practical tools to hear from witnesses unless the D.C. Circuit stopped him.

    Edward in reply to iowan2. | June 3, 2020 at 10:21 am

    As I, and others, have said already in the case of LTG Flynn Sullivan is using the judicial process as a punishment. He knows there will be no conviction which will stand appeal. He knows that the SCO prosecutors have ignored his order for complete Brady disclosure to both the defense and the court. He doesn’t care that DoJ has now honestly obeyed the order (with Sidney Powell dragging them kicking and screaming until the AG ordered another US Attorney to investigate and report to him) and there is zero HONEST reason to continue court proceedings. Ergo there remains only the effort to punish LTG Flynn in the only way Sullivan can.

MoeHowardwasright | June 2, 2020 at 9:32 pm

Let me preface, I am not a lawyer. I did not play one on TV. I didn’t stay at a Holiday Inn Express. I did watch Perry Mason and Matlock. /sarc.
This will not go past the Appeals Court. They and the SC do not want the scrutiny that would follow any attempt at not releasing Gen Flynn from this mess. The R’s May not have the House, but they do have the Senate. The Federal courts do not want to have to answer in a public forum for this mess. Law fare can contrive and claim all sorts of esoteric BS. It ain’t gonna fly! As McGarret often said, “Book it Dano”!

The issue of whether the petition for Mandamus was premature, aside, isn’t a larger issue looming, that of Sullivan’s utterly unethical and inappropriate usurpation of the prosecutor’s role, to the defendant’s detriment? Since when does a criminal defendant have to be subjected to a judge’s capricious, self-aggrandizing condemnation, in which the judge brings in third parties to the courtroom, to vilify the defendant?

This is evil and totalitarian, the stuff of Soviet show trials.

    Edward in reply to guyjones. | June 3, 2020 at 10:26 am

    Both Defense and Prosecution have been subjected to the capricious acts of Federal Judges at least for the last 105 years if not since the founding of the Judicial Branch. Sullivan has taken it public and far beyond the norm of the worst Judges I’m aware of.

This guy is such a blantant schmuck.

How many people suffered from incredible injustice before his court because of his dumbness and arrogance? (They always seem to go hand in hand these days.)

If I defied a court Ixd be charged with something…right? But Sullivan rules the entire DOJ I guess…

inspectorudy | June 3, 2020 at 12:30 am

Can this all be the new insurance that Strozk wished he had? First, the impeachment fails badly. Then the pandemic and then ALL of the leftist Dr.’s tell everyone to lockdown in their homes for months ruining the economy. Then one instance of police brutality sets off a nationwide riot that includes prepositioned brick piles! Meanwhile, Sullivan decides to drag out a losing hand after a mysterious “Leaked” phone call between obama and some of his evil allies in the msm where he charges that Flynn committed perjury. Sullivan then comes up with a new angle of not dismissing the case due to possible perjury claims. Can this really all be one big coincidence? Or is this a case of trying to keep the horrors of our country going until November?

    You are spot on. Obama originally made the accusation that Flynn committed perjury. At the time, I was confused about his logic. Shortly after, Judge Sullivan repeats it. There are no coincidences in this elaborate takedown of America.

If he had a reason for his actions, Sullivan wouldn’t need a lawyer to defend his position. If he had sufficient neutrality, he wouldn’t care–beyond presenting his own reasoning–what the higher court decided.

If the circuit court does not grant the writ of mandamus, on the basis of timing. They should at least order Sullivan to rule on the motion within 10 days. Sullivan is just trying to stall and muddy up the waters in desperate attempt to extend this past the November election. He hopes Dementia Joe will get elected.

“…what Judge Sullivan has done is so unusual in a criminal prosecution context, I don’t see Judge Sullivan ultimately winning on that.”

If the court agrees that Sullivan’s actions would be objectionable should those actions go against Gen. Flynn, then why wait for that to happen? Alternatively, why wait for Sullivan’s actions to be resolved in Flynn’s favor in Sullivan’s court? Either outcome would be in Flynn’s favor. The only reason to keep this circus going would be if, and only if, the outcome is unfavorable to Flynn and would not be stricken in a review by a higher court. Otherwise, git ‘er done.

Oral arguments in 10 days.

IMO. See no reason for THIS ignorant thing to be on the bench. HIS opinion of self worth & JUDICIAL prudence is way to high for his Knowledge of the law. IGNORANCE IS BLISS, You know.

It boils down to one single proposition. Imagine if a prosecution had charged an individual with a particular crime, railroaded the individual into pleading guilty to that crime in order to avoid worse consequences, and then the government admitted that their case was untenable because they had no jurisdiction (e.g., the crime had not been committed in the district and, the statute of limitations having been exhausted, the defendant could not be recharged elsewhere), and the defendant had also realized that and was asking to withdraw his plea. The judge might be furious that his court had been used, but same motion would be made as has been made in this case. Now, suppose that the judge invoked his discretion to refuse to dismiss. The higher court would almost certainly grant a motion of mandamus ordering him to dismiss. That is because there is no doubt whatsoever that a jurisdictional flaw makes it impossible to force a defendant to endure a trial, let alone convict the defendant. What the Court of Appeals must decide here, and what might ultimately have to be decided by the US Supreme Court, is whether the decision by the executive not to prosecute is on the same footing. On the one hand, Judge Sullivan is undoubtedly correct in observing that it is a murkier issue than my hypothetical and that the rule, on it’s face, leaves him discretion. But that is an instance of missing the forest for the trees, since the Supreme Court has made it abundantly clear that the decision of whether to prosecute lies entirely with the Executive.

My guess is that the Court of Appeals, en banc if necessary, will allow Sullivan to hold his hearing on June 12, but if he does not dismiss the proceedings at the conclusion of that hearing, the Circuit will quickly order him to do so.

I would prefer, strictly as a matter of jurisprudence, to see this resolved earlier with an order of mandamus on the basis that once the Executive has decided not to charge, as a constitutional matter or as a gloss on the rule the judge has no discretion despite the words of the rule, but 10 days is sufficiently short for Flynn that the Circuit may feel that this one can be resolved without the heavy artillery mandamus if Sullivan comes to his senses and dismounts from his high horse.

    Edward in reply to RRRR. | June 3, 2020 at 10:39 am

    The only way this reaches an en banc hearing, or the SCOTUS, is if the current Circuit Court panel agrees with Sullivan, Sullivan actually ignores the DoJ request and sentences LTG Flynn. Sidney Powell appeals to the Circuit Court and loses, Sidney Powell requests an En Banc and loses or just goes to the SCOTUS. Otherwise, the government can’t appeal a loss in a criminal case.

There is also an extreme possibility that even an order of mandamus might not resolve this. There is some chance that Judge Sullivan, if ordered to dismiss the case or to transfer it to another judge, would try to appeal that order to the United States Supreme Court. Very little good could come out of that. On the one hand, it would not be necessary for the Supreme Court to resolve the discretion question as a matter of law, as the Court could simply deny the appeal with a bare order, but, if the Supreme Court did want to deal with the issue, it would protract these proceedings further. The Supreme Court building may resemble an ivory tower, but the Justices are acutely aware of political considerations, and it would be a jurisprudential disaster and embarrassment of enormous proportions should this drag on long enough for there to be a change in administration and a new decision by a Democrat DOJ to prosecute Flynn after all. So the Supreme Court would be faced with the unappealing choice between calendaring the case for expedited resolution or passing up what, in normal circumstances at least 4 of the Justices would see as an important need to resolve the scope of a judge’s discretion in circumstances like this.

To a certain degree, Judge Sullivan is also testing the limits of the rules of the courts. The chief judges of the District and of the Circuit and the Chief Justice of the United States may have the inherent authority to remove Judge Sullivan from the list of judges to whom cases can be assigned. Nobody can take away his lifetime tenure without an impeachment, but lifetime tenure guarantees only that he collects his salary, not that he actually gets assigned to hear any cases. I am not aware of circumstances where this has happened, although I recall one situations where, in order to allow courts to function properly, a chief judge was rumored to have cut back on the assignments of a senior judge who had lost 10 or 20 miles per hour from his fastball and was habitually unable to move cases along and often had to be reversed or at best affirmed on alternative grounds.

    Edward in reply to RRRR. | June 3, 2020 at 10:49 am

    I’ll bite, on what grounds can a District Court Judge appeal an order from the Circuit Court of Appeals to the SCOTUS? What is the precedent for such an act (not saying Sullivan doesn’t have the ego to try it though)? Particularly where the issue is set in recent precedent decisions by both the Circuit and the SCOTUS and Sullivan (OK, his taxpayer paid lawyer) is ignoring those decisions and claiming a 1973 decision is the governing precedent.

If I’m understanding this correctly, my refusal to comply with a court order will not initiate a criminal contempt citation provided I claim I didn’t inform the court I’m not complying?

    Milhouse in reply to George S. | June 3, 2020 at 12:09 pm

    He hasn’t refused any order. The court hasn’t yet decided whether to issue the order, and he’s arguing that it shouldn’t, because the proper procedure is for it to first wait for his decision, and then if it doesn’t like what he decides it can order him to change it.

“I think the prematurity issue is serious, and if Flynn loses on the Mandamus petition, that will be the ground.”

On the other hand, a judge’s decision to maintain as pending a case that judge has no jurisdiction to hear is a decision. So, the mandamus order is, arguably, not premature.

    I tell my kids sometimes “Failure to make a decision is in itself a decision.” (Normally when giving them a choice in some decision)

I agree that the prematurity issue is serious. Sullivan wants to find the facts, as district courts are supposed to do, on the plea bargain. Yes the case is over so far as the DOJ is concerned, but Flynn’s contention is that the plea bargain was corrupt and that it did not reflect any reduction in a potential criminal charge against him, and Flynn deserves to clear his name in a court of law on that point. I don’t understand why Sidney Powell is asking for Sullivan’s removal as I don’t really think she has any reason to believe that Sullivan is biased against Flynn. Gleeson might be, but that would only align his dislike and interests with the side he would be arguing, so that is correct.

The Appellate Court could order Sullivan to recind his order appointing amicus curie by 4:00 pm Thursday because there is no legal basis for entering such an order. If he refuses to withdraw that order he’s in contempt of court and it’s sufficient insubordination to ask the chief judge of the DC District court to appoint a new judge in the matter. The Circuit justices could also ask the DC Chief to look into the extreme prejudice shown by Sullivan toward Flynn and remove him from the case. It’s quite clear by now that Sullivan is a racist who hated white defendants.

I disagree that it was premature. The DOJ dropped the charges, the defendant agreed, there is nothing remaining for Sullivan to do but sign off on that.

Instead, Sullivan contrived a pile of bullshit. Now, stupid oral arguments and amicus too by the Circuit Court’s order.

Bruce Hayden | June 7, 2020 at 5:17 pm

Most of a week late, but…

Normally, Sullivan might have an argument that the petition for mandamus was premature. But one distinction here is that, ignoring a couple of small exceptions, not relevant here, federal courts have very limited jurisdiction. Most notably, ignoring those few exceptions, they are limited to Cases and Controversies. With the Defense joining the United States here, agreeing to dismiss the charge, there is no longer a Case or Controversy, and Sullivan, thus, no longer has jurisdiction under Article III of the Constitution.

My expectation is that the Writ of Mandamus will be issued by this panel. Republican nominated judges outnumber Democrat nominated by 2-1 on the panel, with the newest being a Trump nominee, an Asian female likely on the short list for the Supreme Court.

The provision in the rules that provide a district court judge any discretion in approving motions to dismiss by the government was implemented to protect defendants from malicious dismissals and refilings of cases by prosecutors. This is inapplicable here, since the Defendant agrees with the dismissal AND it is a dismissal with prejudice, meaning that the government couldn’t legally refile the case, even if they wanted to (and, of course, they don’t)

Another thing to keep in mind, the top two names on the government’s brief are those of the Solicitor General and the US Attorney for DC. Not their assistants or lower level attorneys. They are speaking for the DOJ, as AUSA Brandon Van Grack (removed lead Mueller prosecutor on the case) could never do. Their brief makes clear that the DOJ considers this a serious Separation of Powers issue (attempted appropriation of a core Article II power of the Executive by an Article III judge). I think that the addition of the SG on the brief says to the panel that the next step is SCOTUS, if they don’t win here. Give the choice of deciding the case on Article III jurisdiction, or Article II vs Article III Separation of Powers, I think the easy response is to issue the Writ based on jurisdiction – plus, of course, they can just cite their previous cases as controlling.