On June 24, 2020, a panel of the D.C. Circuit Court of Appeals ordered Judge Emmet Sullivan to grant the government’s motion to dismiss the criminal case against Michael Flynn. That Order would have become effective, requiring Sullivan’s compliance, 21 days after that date (July 15).

In an attempt to forestall compliance, on July 9, Sullivan filed a Petition for Rehearing En Banc, seeking a ruling by all 11 active judges on the appeals court.

The appeals court just issued a stay of the panel Order pending decision on the Petition, giving Flynn and the government 10 days to file their  opposition to the Petition for Rehearing En Banc by Flynn and the government.

Upon consideration of the petition for rehearing en banc, it is, on the court’s own motion,

ORDERED that, within 10 days of the date of this order, petitioner file a response to the petition for rehearing en banc, not to exceed 3,900 words. The government is invited to respond in its discretion within the same ten-day period. Any response from the government may not exceed 3,900 words. Absent an order of the court, a reply to the responses will not be accepted for filing. It is

FURTHER ORDERED that the effectiveness of this court’s order issued June 24, 2020, will be stayed pending disposition of the petition for rehearing en banc. See D.C. Cir. Rule 41(a)(3) (order granting writ becomes effective automatically 21 days after
issuance in the absence of an order or other special direction of this court to thecontrary).

I wouldn’t read too much into this Order. It does not appear to be on the merits or necessarily reflect that the court will hear the case en banc. That’s the non-cynical me speaking. The cynical me says Sullivan is a skilled litigator who thinks he will win on this.

Ultimately the charges will be dismissed against Flynn, but Judge Sullivan wants it to be slow and painful. And if it drags on into 2021 and Biden is president, well, who knows. Judge Sullivan may be playing the long game.

Today more records were finally released showing that the FBI did not think Flynn lied.

The U.S. Justice Department this week handed over 14 new pages of documents that show misconduct by prosecutors who suppressed evidence that would have helped him, Flynn’s lawyer, Sidney Powell, said in a filing Friday with the U.S. Court of Appeals in Washington.

“These documents establish that on January 25, 2017 — the day after the agents ambushed him at the White House — the agents and DOJ officials knew General Flynn’s statements were not material to any investigation, that he was ‘open and forthcoming’ with the agents, that he had no intent to deceive them, and that he believed he was fully truthful with them,” according to the filing.

Flynn pleaded guilty to lying to two FBI agents about his phone calls with Russia’s ambassador to the U.S. in the early days of the Russia probe. Even so, he appeared to overcome the case in May when the Justice Department filed a surprise motion to dismiss, citing FBI failures and arguing that Flynn’s lies to the two agents weren’t “material” to the investigation.

For background on the Sullivan-Flynn litigation, see these prior posts:


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