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Appeals Court Order To Dismiss Flynn Case Stayed Pending Ruling On Judge Sullivan Petition for Rehearing

Appeals Court Order To Dismiss Flynn Case Stayed Pending Ruling On Judge Sullivan Petition for Rehearing

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.

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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Brave Sir Robbin | July 10, 2020 at 7:26 pm

If the Appeals Court takes issue the En Banc, I see a negative outcome for Flynn. The opinion of the Appeals Court already addressed the issue of Sullivan not having been allowed to rule to dismiss the case himself saying the Judge has moved, and in so doing failed to dismiss, and indeed, threatens to add new and additional charges never brought by the prosecution. The power grab by the courts in such a result would be breathtaking.

    The Supreme Court just vacated the sentence of a literal toddler rapist and effectively ruled that the State of Oklahoma doesn’t even exist as we know it.

    At this point I put nothing past the insanity of power-made pieces of shit in black robes.

    Given his whole grievance appears to be that they didn’t give him a chance to rule on the motion, he appears to believe the court, en banc, will rule in his favour.
    Technically he is right. Mandamus should only be used at the end of the line when everything has been finalized by the judge and the fact that he had not yet ruled on the motion is what he is taking issue with. He is a sly old fox.
    The appeals court order to dismiss took issue with the way he was going about reaching a final decision and that is a grey area as there is no law or precedent dictating how long a judge can take or the manner in which he employs to consider the motion.
    He knows the precedent is for him to grant the motion but he also knows there is no rule or precedent on how he reaches that inevitable conclusion.

      Brave Sir Robbin in reply to leeman. | July 11, 2020 at 11:33 am

      “Mandamus should only be used at the end of the line when everything has been finalized by the judge and the fact that he had not yet ruled on the motion is what he is taking issue with.”

      The Court Appeals addressed this in its opinion. It noted that Sullivan did in fact move, and his movement was to not dismiss, but rather to seek to prolong a vacated or settled dispute, and to create new disputes of which he seeks to become both a party to and the arbiter of, which is an unethical position, to say the least.

        Yes.but that is what he is arguing.
        His argument is that the rule does mean they drop everything and just rubber stamp the dismissal.
        He believes a judge has a right to hold a hearing on the motion in order to add to and complete the record.
        The appeals court in their decision are not disputing the judge can hold further hearings following a motion to dismiss, they took issue with the way and manner he went about it.
        Sullivan on the other hand is arguing that the nature of court hearings means he had to employ an amicus and approach the hearing in an adversarial manner.
        That is what the issue is.

Dantzig93101 | July 10, 2020 at 7:35 pm

For any social or legal system to function, most participants must act in good faith most of the time. Recently, a segment of the participants have not done so. Whether or not a remedy can be found within that are based on the good-faith assumption is not clear. It would be very nice if that were so.

More proof that agents of the state have the authority to mistreat us when it suits them.

    fscarn in reply to Tiki. | July 10, 2020 at 8:14 pm

    As others have said, the process is the punishment. Even if in the end you “win,” your so-called win is really measured by not having lost as much as you coulda lost.

    And the really good in all of this: DOJ, Mueller and his crew, all have qualified immunity. And in the case of the judges, including this AA judge, they all have absolute immunity.

You try to put yourself in the mind of someone like Sullivan, and rationalize his idiocy. Then you realize: he’s really an idiot.

BierceAmbrose | July 10, 2020 at 8:13 pm

And if it drags on into 2021 and Biden is president, well, who knows. Judge Sullivan may be playing the long game.

Sullivan is not the only one playing a “long game.” Like the last presidential, there’s a lot here to vote against.

    If Hidin’ Biden is elected President and this is still going on, Flynn will get pardoned as Trump is going out the door.

      Walker Evans in reply to jb4. | July 11, 2020 at 11:30 am

      In my highly biased opinion, should President Trump fail to be re-elected, he absolutely must issue a “blanket” pardon to General Flynn for any and all perceived misdeeds connected, however nebulously, to any of this. If not done, the puppeteers pulling Stammerin’ Joe’s strings will do everything in their power to make the General’s life miserable: interminable investigations, attempts to reclassify his retirement status in order to strip Uhim of retired pay – illegal certainly, but legality doesn’t seem to be a consideration to these vultures – and anything else they can concoct to damage him.

      Looking at those who are arrayed against the General a good case could be made for reinstituting Fool Killing!

Emmet Sullivan: judge, jury, prosecutor. He knows that’s not how any of this works, but there’s a political payoff for him – possibly in the Biden administration or in the high dollar weeds of K street. Who knows? The swamp is deep and fetid.

Meanwhile, justice is delayed for Flynn – which means denied. And Sen. Lindsey (LINDSEY!) Graham(R) with his worthless kabuki theater Judiciary Committee is playing pocket pool in the coat room with which ever lobbyist can grease up his bank account the most (wink nudge) instead of leading the charge against this hack-in-black (not racial!), Sullivan.

Oh, and guess which SCOTUS justice has the allotment assignment for the DC Circuit court? Chief Justice Roberts.

A pox on them all.

BierceAmbrose | July 10, 2020 at 8:34 pm

We’re in “The Flight 93 Timeline.”

As the well-known piece said, last presidential was “The Flight 93 Election.” Well, we’re on an alternate timeline, now: we took the cockpit. The plane’s flailing, there are bad guys still grabbing for control, n plenty of people freaked by the chaos.

Is Sullivan an opportunist, a useful idiot, or an apparatchek? It doesn’t matter. His hands need to be pried off whatever they’re on: leggo that drink cart n sit down. Don’t even think of touching the window blind.

Conveniently as each attempt is stifled, the next layer of enablers n allies reveal themselves. This was Sullivan – just support staff until the guys on point failed. Now we know. Who else sitting in economy isn’t there to take a trip, but to

We’re on The Flighg 93 Timeline. The plane ain’t down, but that just bought us the chance to do the rest of the work, if we can.

    Dantzig93101 in reply to BierceAmbrose. | July 11, 2020 at 12:45 am

    We could yell “Trick or Treat!” at the terrorists to see if they’ll give up the plane, but we’ve been doing it for three years and it’s never worked yet. They seem unmoved by rational argument and appeals to common decency.

stevewhitemd | July 10, 2020 at 8:48 pm

I think this is just procedure right now. Courts are (correctly) sticklers for procedure. Flynn gets a chance to respond, the government may respond if it wishes, and the order is stayed while this happens. Then the court will decide whether to have an en banc review.

The less cynical me thinks that in the end the appeals court will order that Sullivan enforce their previous writ. The alternative is a drip-drip-drip of more information from the government and, possibility, more embarrassing revelations. If I were Sydney Powell, that’s what I’d be very quietly threatening.

    WashingtonLawyer in reply to stevewhitemd. | July 11, 2020 at 12:56 am

    I am cautiously optimistic you are right about this.

    Joe-dallas in reply to stevewhitemd. | July 11, 2020 at 8:28 am

    Courts are generally stickler for procedural details. t

    The original 3 judge panel was conflicted with getting the procedural rules correct vs how to handle Sullivans complete dismissal and disregard of the substantial misconduct of the FBI and DOJ in the prosecution and Sullivan’s attempt to continue the prosecution.

    The 3 judge panel original ruling circumvented some of the procedural hurdles in the interest of justice. Its a tricky minefield to navigate.

    If the CA DC hears the case en banc, a ruling likely wont be issued for several months.

MoeHowardwasright | July 10, 2020 at 9:06 pm

As I have stated before, the DC appeals court does not want this continue. They know that to allow Sullivan to continue this crap will diminish the courts in the eyes of Americans. Sullivan is pissing off those above him. Believe me when I’m say that they do not want this to continue.

    I disagree. Assuming judges listen to their critics (a dubious proposition) I think Democrat judges – and Obama judges in particular – relish sticking it to the Deplorables and the resulting public firestorm. The more criticism these terrorists in black robes get, the more they feel like righteous martyrs. In their minds they are so close to getting their jackboots permanently on the throats of “racists” they can almost taste the blood.

    OTOH, numerous GOPe judges (such as Roberts, Kennedy, Gorsuch) have revealed themselves to be slaves to the voice of the Washington glitterati. They can be browbeaten with a few disapproving media stories, or made to sit up and beg like dogs at the prospect of a bored compliment from the MSM/DNC axis.

    No, I would be flabbergasted if the DC court gave a hoot in Hades at what the public will think. Lifetime appointments tend to produce a lifetime of greed and arrogance.

I understand the judge is technically a party but he’s only a nominal party. He needs leave of the court to address the petition but now may file for en banc review as if he were a full party litigant? Maybe there’s precedent for this but it just seems an odd posture for a judge.

Trump can pardon him and just end it. With the guilty plea, Flynn can just take it and walk away.

I wish Stone could have hung in there longer and got his appeal and he could since he is still technically guilty.

    txvet2 in reply to MarkSmith. | July 10, 2020 at 9:59 pm

    If he takes a pardon, he’s convicted for life, which likely ends any usefulness in the future. I’d much rather have him tough this out, sue for massive damages, and reincarnate as NSA or another high-ranking slot where he can do the most damage to his persecutors.

Let’s see what the WH does next. This stay, which was expected, occurred after POTUS commuted Roger Stone’s sentence today.

Perhaps the presidential clemency Stone merited is prologue of a sort for the general’s story:

Maybe, then, because of the DCDC’s recent petition of the DCCCA to rehear LTG Flynn’s two-week-old Petition for Mandamus en banc, with all the understandable grief and stalled momentum that would likely attend that indefinite, further delay, the time has come for — what are seen accurately by many of Trump’s electorate, regardless of party or affiliation, as old, lingering, and highly frustrating Mueller-related, process cases — their disappearance from the news cycle and thus the minds of the voters forthwith.

The practical and plain reason being: there are simply other, bigger fish to fry in these socially complicated, critical times, and the time to vote is steadily getting closer.

If so, with and this whole enchilada being Plan B, Biden & Co gets just a few of all the formerly available political points for having to pardon LTG Flynn and wiping his charge-slate clean, etc, while Roger Stone’s charges stick but his sentence is effectively served and he gets to go home, a free man.

The aim now is justice for these citizens, neither denied, nor delayed: to have the respective outcomes fit the integrity and validity of the respective charges, yet help both defendants — who, in Stone’s case, was clearly mistreated by the judge, and in Flynn’s case, was, we finally learn, maliciously and unlawfully treated by both the DoJ and the judge.

Plan A, the ideal scenario in which only Stone is convicted, but no one is incarcerated over time, must be given up as a complete political bonus for Trump in order to benefit from the clean-slate advantage attached to the present Plan B.

Therefore, in executing Plan B, watch for POTUS’s reasonable and fully warranted, absolute (or specially qualified) pardon of LTG Flynn — with charges being cancelled and expunged from his record, and punishment obviated — over the weekend or by Tuesday at the latest.

In doing so, LTG Flynn’s legal expenses are finally halted; he can at last start to recoup his huge financial and other losses to-date; and he can finally get the justice he so surely deserves.

No less meaty and tasty, the out-of-control DCDC judge and associates, Sullivan and all his hacks, have simply got to be put to bed. Their lights need to be out, and much sooner, rather than much later.

Anyway, that’s my lay thinking and guesses on these matters, for what it’s worth.

notamemberofanyorganizedpolicital | July 10, 2020 at 10:39 pm

General Flynn To The ‘Silent Majority’: “Wake Up! America’s At Risk Of Being Lost”

Authored by General Michael Flynn (ret.), op-ed via,

I was once told if we’re not careful, 2 percent of the passionate will control 98 percent of the indifferent 100 percent of the time.

The more I’ve thought about this phrase, the more I believe it. There is now a small group of passionate people working hard to destroy our American way of life. Treason and treachery are rampant and our rule of law and those law enforcement professionals who uphold our laws are under the gun more than at any time in our nation’s history. These passionate 2 percent appear to be winning……

Prof. Jacobson The cynical me says Sullivan is a skilled litigator

That is very confusing.. I thought he was a judge…
Then again, I guess that is the whole point.

I wish he would just stick to his branch.

How has Mueller not been arrested? The Brady Violations alone are appaling. And he had to know. He had the obligation to know. He engaged in a conspiracy to take down the Nations highest Inteligence Officers for personal political reasons. Put him in the cell. Bankrupt him. Threaten his family with arrest. And then force him to roll over on his co-conspirators.

    Dantzig93101 in reply to griffeydog. | July 11, 2020 at 12:47 am

    It would be interesting to find out if Mueller’s Joe Biden routine is just an act.

    Subotai Bahadur in reply to griffeydog. | July 11, 2020 at 1:49 am

    Mueller works FOR the enemy, therefore he cannot be prosecuted for anything. Welcome to what some call the 4th Turning.

    Subotai Bahadur

It’s always amazing to find out just how many non-adults there are in the system.

The best part of the Age of Trump is that people self0identify

Lucifer Morningstar | July 11, 2020 at 12:30 pm

So let me see if I’ve got this right. Even if it is later proven that you are set-up by corrupt federal prosecutors once you accept a federal plea agreement and plead guilty you cannot withdraw that plea for any reason. And if you try to withdraw the plea you will be threatened with perjury charges by an activist federal judge.

Did I get that correct?

Seems to me that this is telling anyone facing any kind of criminal federal charges to simply tell the federal prosecutors to fuck off on any plea deals and force them to take each and every defendant to trial to preserve the rights of the accused so that if later it is discovered the federal prosecutors acted in a corrupt/illegal manner they can challenge the verdict and sentence.

As a retired DEA agent, I am appalled by the abuse of power of this judge. I am not a lawyer, and there may be some legal point that allows him to do this, but is this in the spirit of the law?

    Edward in reply to garyfouse. | July 13, 2020 at 9:36 am

    As another retired GS-1811 I agree wholeheartedly. Not just this judge, but the entire system which has abused the intelligence and criminal systems in an effort to overthrow the duly elected President of the United States and, failing that, disrupt his administration and punish people involved with the President. I’d like to say that I can’t believe the Bureau and DoJ would violate Brady for years, but sadly it is a fact and my opinion of the Bureau was such that I found it easy to believe of those in HQ.

Again, Paul Cassell and Michael Luttig, two eminent jurists with impeccable conservative credentials, both think the panel got it wrong and that for the sake of the law it should be reversed. I think their arguments should be given great weight.

    Edward in reply to Milhouse. | July 13, 2020 at 9:26 am

    But, beyond yourself and perhaps the two lawyers you cite, who cares what you think about what is primarily a political issue and abomination involving the system of “Just Us”?

Andrew McCarthey respectfully disagrees with Luttig’s summary and conclusion. I agree with McCarthy, not with Luttig.