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D.C. Circuit Vacates Order Directing District Court To Dismiss Flynn Case, Full Circuit Will Reconsider

D.C. Circuit Vacates Order Directing District Court To Dismiss Flynn Case, Full Circuit Will Reconsider

“The parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired.”

The D.C. Circuit Court of Appeals has vacated the prior order of a panel directing Judge Emmet Sullivan to dismiss the case against Michael Flynn. Sullivan requested the full Circuit court consider the case (“en banc”).

Here is the full Court Order.


Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate, it is

ORDERED that this case be reheard by the court sitting en banc. It is

FURTHER ORDERED that the court’s order filed June 24, 2020, be vacated. It is

FURTHER ORDERED that oral argument before the en banc court be heard at 9:30 a.m. on Tuesday, August 11, 2020. The parties should be prepared to address whether there are “no other adequate means to attain the relief” desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).

A separate order will issue regarding the allocation of oral argument time.

The Court’s focus on “whether there are ‘no other adequate means to attain the relief’ desired” seems to be a clear sign that Sullivan’s argument that the panel order was premature, and that he should have been allowed to rule on the government’s motion to dismiss, is viewed as a problem by many if not most of the appeals court judges.


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


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Lawlessness masked as lawfulness, that’s all the courts are these days.

    notamemberofanyorganizedpolicital in reply to Dr. Ransom. | July 30, 2020 at 1:26 pm

    Remember everything the Nazis did was 100% “legal.”

    Who said the law is an ass?

    With winks and nods from John Roberts. So, put it in his lap now
    by going to Roberts for a stay pending a full review by SCOTUS, thus bypassing the Circuit panel.

    Judge Sullivan has no standing here, yet the majority of the Circuit granted this BS.

      Tom Servo in reply to Don. | July 30, 2020 at 5:12 pm

      The entire point of this game is to keep it going, keep it going, past the November election, and then they hope President Biden will reinstate the prosecution and make this all moot.

Can’t wait for the revolution that will seek to destroy the so-called ‘blind’ justice system… Let us be done with these ‘black robes’ who believe that they are the law…

Dantzig93101 | July 30, 2020 at 12:41 pm

Our country’s enemies are nothing if not tenacious. They won’t give up an inch of territory without a pitched battle, and then another one, and another one. If they weren’t evil, it would be admirable.

So many others…

And BARR, what the heck are you doing

Unleash the Kraken, bring the charges and do it immediately

What a load of cr… Sullivan has had months to consider and rule upon the governments motion to dismiss.

And they wonder why people ask “is this an Obama judge?”

    The Friendly Grizzly in reply to Valerie. | July 30, 2020 at 1:14 pm

    It is also further reason for me to believe that we have no justice system whatsoever. The average defendant has better luck in a gambling casino.

Maybe this is evidence that this court wants to put an end to this convincingly. “En banc” would crush the argument that a three-judge panel ruling did not reflect what the full court would have ruled. Now we’ll find out.

    mailman in reply to Pasadena Phil. | July 30, 2020 at 12:59 pm

    Some time in 2025??

    Dusty Pitts in reply to Pasadena Phil. | July 30, 2020 at 1:00 pm

    That would be nice, but they could have achieved the same result by simply denying Sullivan’s petition.

      gonzotx in reply to Dusty Pitts. | July 30, 2020 at 1:04 pm

      Deny a Black man his day?

      Maybe in 2019, but this is 2020 sir and we don’t do racist anymore, unless you are White, then they can do whatever they want whenever they want with impunity…

      If they simply deny the petition, they lose the opportunity to grandstand.
      – The Obama judges are drooling over the possibility of putting a Trump administration official in jail for anything they possibly can, and are willing to warp the facts to fit their arguments.
      – The self-important judges are looking at the possibility of writing a Very Important Decision that will be studied by lawyers for decades.
      – The sane judges may be going along with this just so they can put nails in the coffin lid once and for all. (Darnit, we set a precedent, and it should stick)
      – And the Never-Trumpers are more than happy to see this abomination drag on through the election season.
      (Be aware, some of these sets have intersections)

        Barry in reply to georgfelis. | July 30, 2020 at 9:56 pm

        “And the Never-Trumpers are more than happy to see this abomination drag on through the election season.
        (Be aware, some of these sets have intersections)”

        LOL, as in “neverTrumpers” = progs 100%. There’s your intersection.

    This move allows them to delay it until the election. And maybe until the swearing in of a new President. When it will get un-dismissed.

    We really need severe personal consequences for these wannabe kings when they violate the clear rule of law and the Constitution.

      snopercod in reply to GWB. | July 30, 2020 at 2:04 pm

      Trump should…dare I say it?…play his Trump card, end this charade, and just pardon Flynn.

        Accepting a pardon is admitting guilt.

          rabidfox in reply to Pasadena Phil. | July 30, 2020 at 4:39 pm

          Further more, since the charge was ‘perjury’, Flynn’s testimony would be worthless in any upcoming trial. I think that is the real reason why the left is doing all of this – to permanently block any and all testimony from Gen Flynn about the activities he witnessed.

          While it is not time for a pardon, accepting one is not an admission of guilt.

        GWB in reply to snopercod. | July 31, 2020 at 8:36 am

        I don’t think pardon is the answer, and not just because it leaves Flynn’s reputation in doubt. Mainly I dislike it because it provides no consequence for the judge. At least an actual order of “Dismiss the damn thing, already” is a record smacking down the judge from the judicial system.

        If the full circuit reverses the panel, there is unfortunately not likely to be even the barest hint of recorded justice anywhere in the rest of the proceeding. No one will suffer for their unjust rulings, and no one will provide restitution to Flynn for his defense.
        That’s a travesty, no matter what.

    Observer in reply to Pasadena Phil. | July 30, 2020 at 3:05 pm

    No, they’ve already signaled in the order how they’re going to rule. They’re going to say that the appropriate procedure was for Flynn to wait until Sullivan had ruled on the government’s motion to dismiss before seeking relief in the appeals court. So they’ll send the case back down, Sullivan will screw around with more delays and then eventually hold his hearing (during which there will be lots of political grandstanding, mainly by Sullivan), and then he’ll grant the motion, because there are no legitimate legal grounds for refusing to grant it, and everybody knows it. Meanwhile, Flynn gets to remain gagged for many more months, and his attorney fees continue to escalate, as he is forced to continue to defend himself from a blatantly political persecution mounted by crooks in the Obama administration who have already admitted that they knew all along that Flynn never committed any crime.

    This is what passes for “justice” in our legal system now.

      The Friendly Grizzly in reply to Observer. | July 30, 2020 at 3:24 pm

      In short, justice is for those who can afford it.

      Zumkopf in reply to Observer. | July 30, 2020 at 4:34 pm

      You are absolutely right in all respects. I was going to give you a thumb’s up, but that seems a weird gesture in light of the fact that an innocent man’s civil and constitutional rights are being continuously violated on the basis of ego and politics.

      Months from now, it will be dismissed, no matter who is president at that point; the facts cannot sustain an ongoing prosecution. Emmet Sullivan (I refuse to call him “Judge”; he has neither the temperament nor the wisdom) has no real choice, but by God he’s going to make everyone who challenged him suffer.

      leeman in reply to Observer. | July 30, 2020 at 4:40 pm

      The issue is not whether Sullivan will grant Flynn the dismissal he desires but rather the fact that a judge without a live controversy before him is ordering a private citizen around like he has jurisdiction over him.
      Surely the separation of powers issue comes into play.
      Both the government and defense agree there is no longer a case.
      That should be the end of it.
      A minor hearing to complete the record and close the case is all that is required.
      Not hiring an amicus to take the place of the government and force Flynn to spend money and time answering to baseless charges.
      The law indeed is an ass.

        leeman in reply to leeman. | July 30, 2020 at 5:00 pm

        at the very least if they are going to rule in favor of Sullivan, they should take him of the case and reassign it to a different judge.

      Barry in reply to Observer. | July 30, 2020 at 5:29 pm

      “Meanwhile, Flynn gets to remain gagged for many more months…”

      No, he’s under no gag order.

        JusticeDelivered in reply to Barry. | July 30, 2020 at 6:59 pm

        He is effectively gagged, in that only a fool will take a high public profile while litigation is pending.

          He may choose to stay quiet, but he is not under a gag order as is widely and incorrectly reported.

          A rose by any other name… Applies to ‘gag orders’ too. Sure it’s not an official, real, written out and applied to the defendant, filed with the court type gag order, BUT no lawyer worth beans is going to let her client say anything that would not be permitted under a real gag order, because Sullivan has proven to be highly vindictive in the recent past.

          I’m sure we’ll know just what he wants to say when the book comes out. And there will be a book. I’d put cash money on it.

    No, if the court wanted to put an end to it, it would via the three judge panel. There are enough judges en banc that want Flynn disposed of

2smartforlibs | July 30, 2020 at 1:03 pm

Shows we have a lot of swamp to drain yet.

Drop the Mandamous file a Motion to remove the Judge. He is a party and no longer impartial. I’m sure there is presidence.

Delaying the inevitable dismissal.

The National Registry of Exonerations puts the total number at 20 percent since 1989 of innocent people are routinely coerced into pleading guilty to crimes they did not commit.

“American prosecutors are equipped with a fearsome array of tools they can use to extract confessions and discourage people from exercising their right to a jury trial. These tools include charge-stacking (charging more or more serious crimes than the conduct really merits), legislatively-ordered mandatory-minimum sentences, pretrial detention with unaffordable bail, threats to investigate and indict friends or family members, and the so-called trial penalty — what the National Association of Criminal Defense Lawyers calls the “substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a trial.””

‘no other adequate means to attain the relief’ desired
Isn’t dropping the charges the most adequate means available? He didn’t do anything wrong, so we’re sorry about even charging him and stop the persecution prosecution?

The other means I can think of involve a rope and a lamp post and a black robe.

    Dusty Pitts in reply to GWB. | July 30, 2020 at 1:41 pm

    Prompt dismissal would have been the only adequate means, IMHO.

    The Friendly Grizzly in reply to GWB. | July 30, 2020 at 3:27 pm

    The other means I can think of involve a rope and a lamp post and a black robe.

    And the wearer of thst robe.

    SDN in reply to GWB. | July 30, 2020 at 7:02 pm

    My guess is that the phrase should read “if Trump thinks he’s innocent, Trump can pardon him.”

Sullivan wishes to be the final arbiter in the case. This is nothing new just more out in the open and blatant. Seen that first hand in judges using their position to protect the powerful and connected. For a social justice warrior, the outcome is everything and what happens up to the verdict as proscribed by law is irrelevant.

Not surprising. The Federal judiciary is an open sewer of favoritism and corruption. Here is one more example.

In addition to making up law based upon their personal whims and desires, Federal judges now get to play the role of prosecutor as well. How long before Federal judges do away with hearings altogether and defendants are sentenced without bothering with trials? Read up on the Soviet troikas during the Stalin era and then try to convince yourself that is not the goal of Communist leaders here.

. . . [Puke].

“the parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired”

As an example of some other adequate means,

“Give this job to Clemenza. I want reliable people, people who aren’t going to be carried away. I mean, we’re not murderers, in spite of what this undertaker thinks”

Not guilty does NOT equal the legal effect of a dismissal–a dismissal in the interest of justice is considered a nullity, as in, “it never happened”. Not guilty just means that it was not proved.

Dismissal is what this case DEMANDS.

I can’t wait for the en banc order that allows Judge Sullivan to add amicus curae to the case so that he can consider perjury charges against Flynn. I would not be at all shocked if that happens.

The two-tiered system of justice in blinking neon lights right in front of our eyes.

Rationalize all you want, the Constitution is no longer a living, or working, document.

When Judge Sullivan responded to Flynn’s mandamus petition in the Circuit Court, he was responding to the Circuit Court’s direction. But, when Judge Sullivan requested an en banc review of the Circuit Court panel’s order, he was affirmatively disagreeing with the panel’s decision and seeking his own relief. At that point, he was no longer an independent, neutral judge but a real party in interest advancing his own goals. That, of itself, should be grounds for his disqualification.

    Dave in reply to Guahan. | July 30, 2020 at 2:31 pm

    The full Circuit has apparently rejected the notion that Judge Sullivan is not a neutral party and bought the argument that he and he alone should be allowed to act in any way he sees fit, Rule 48(a) be damned.

    In a just system both the DOJ and Ms. Powell would petition SCOTUS to uphold the earlier decision and get relief. Wishful thinking, I know.

This is what happens when Barr plays by a book no Democrat reads.

    MarkS in reply to puhiawa. | July 30, 2020 at 4:02 pm

    Barr is useless and refuses to prosecute any Trump critic for anything. YouTube has a clip of a guy throwing a bomb at the Federal court house in Portland, identified by his grandmother, and he has not been arrested or even sought

Hotep.Maqqebet | July 30, 2020 at 2:49 pm

Assume that Sidney Powell told Flynn that this was coming. Straight up.
Watch Trump. I expect a full pardon followed by a re-hiring of Flynn. Nothing else will suffice.

Unfortunately there are two separate and distinct issues

1) First is the procedural issue. The appeals court was premature to require the dismissal of the case before Sullivan ruled on the mamadus. But again that is procedural issue.

2) The second issue and much bigger issue is with Sullivan A) At this point he knows full well the extent of the corruption in the FBI & DOJ including the FBI admission along with the well documented innocence. B) Additionally is Sullivans attempt to become the prosecutor.

    Hotep.Maqqebet in reply to Joe-dallas. | July 30, 2020 at 2:51 pm

    Sullivan is a white-hot burning chunk of coal with hatred of Trump.
    So are the other DemoNcrat judges on the appellate court.
    F’ them all.

      Joe-dallas in reply to Hotep.Maqqebet. | July 30, 2020 at 4:13 pm

      I am torn on the issue because the 3 judge panel probably got the procedural issue wrong, (in their attempt to correct the error at the trial court).

      That being said, Sullivan has clearly tried to act as prosecutor for new and unindicted crimes he hasnt been charged with along with full knowledge of the FBI corruption in the original prosecution.

    leeman in reply to Joe-dallas. | July 30, 2020 at 5:21 pm

    Premature? By that logic a judge can do whatever he wants and take as long as he wants just to keep a case alive when the controversy is over.
    The Mandamus was against the procedure Sullivan had set up.
    Appointing an Amicus and ordering Flynn around as if he had a live controversy.
    The Mandamus was procedural correct and specifically pointed out the separation of powers issue under the US constitution.

This is total bullshit.

ThePrimordialOrderedPair | July 30, 2020 at 2:57 pm

Congress needs to take an active role in impeaching and tossing federal judges and justices who make a mockery of the Constitution and the Rule of Law. Lifetime appointments require extra-strict scrutiny of performance and the judges’ fidelity to their oath. If you are going to hand out lifetime positions then you have to be vigilant in weeding out those who abuse it. This impeachment and conviction power of the Congress is the real oversight that Congress has over the federal Judiciary. Congress has to defend the COnstitution against judicial abuse. It is a travesty that Congress has never seemed to understand this.

This last decision by the appeals court is a total joke. And we all know what the Empathetic, Wise Latina said about that … “Court of Appeals is where policy is made.”

    The House of Representatives has to vote articles of impeachment for Sullivan. The chances of that happened are LESS than zero.

      ThePrimordialOrderedPair in reply to Zumkopf. | July 30, 2020 at 7:47 pm

      This House, yes. I was speaking in general. The GOP, when they controlled the House and Senate never even tried to impeach any judges or justices, even as they made jokes of the law and came out with decision after decision that were, simply, insane, in addition to being anti-American and un-Constitutional.

      No .. this House is not what I am looking to – it is run by America-hating traitors. I was emphasizing the general point of how lifetime appointments have to be held to a level of scrutiny that is commensurate with the “lifetime” part.

buckeyeminuteman | July 30, 2020 at 2:59 pm

They’re now making up rules as they go. I honestly cannot even following anymore what is going on with Flynn. And that is probably the point.

I feel for Michael Flynn on this prolonging of his legal journey, but the upside is that we get to see which members of the DC Circuit aren’t worthy of the black robes they wear.

The best part of the Age of Trump is that people self-identify

At what point can Flynn start a civil suit against his former lawyer Covington. Let’s get the show started. Flynn obviously suffered financial distress because of his first representation. They don’t want the civil suit to start because everything will be exposed. Can he sue the prosecutors too?

    MarkS in reply to r2468. | July 30, 2020 at 4:05 pm

    The way I understand it, if his case is dismissed he can, but if trump pardons him, he can’t

To a logical, but no legal, mind. It’s hard to see why there is any question here. The prosecution wants to drop the case. It always worked on Perry Mason.

This decision brings disgrace upon the US court system. They have denied Flynn justice under any conceivable notion of the term.

This act is evil.

William Jacobson: Could you also link Flynn’s reply brief in opposition to the en banc hearing.

I read it and I think it gives great perspective on why the DC circuit court of appeals is rogue on its face for ruling in favor of the en banc hearing

MoeHowardwasright | July 30, 2020 at 4:51 pm

Ok…The President and his campaign staff could use this to great advantage. The “courts” are now persecuting an individual to settle political scores. They need to implore voters to elect Republicans to Congress to impeach these runaway judges. People are smarter than most give them credit for. Put Sullivan’s face in a series of ads explaining in 30 seconds how he is complicit. Then tie the runaway judge to the political hacks put in by the bamster. Other than Sullivan don’t mention anyone else by name. There are more than enough people regardless of race that have been screwed by unethical judges. They want war, go for it. Besides they can’t fight back. SCOTUS will force the issue to protect they system. Good, then still apply the pressure. It’s our only chance to pull the plug on a runaway federal judiciary.

    healthguyfsu in reply to MoeHowardwasright. | July 31, 2020 at 12:42 pm

    Not sure it’s a mainstream enough issue. Flynn doesn’t resonate over a large swath of the country, and for another swath, the narrative of Flynn’s guilt has already been decided by media trial.

Based on the order, it seems like the en banc court wants to try and drag this out by arguing that Flynn still has some other “remedy” that he needs to try before seeking a “writ of mandamus”. They probably want to force Flynn to go through the useless exercise of further hearings and further assaults on his character by Sullivan appointed friends of the court, appeals of those proceedings, and then and only then possibly file for a writ of mandamus. Hopefully, the Supreme Court will grant certiari and order the case dismissed once the en banc DC Court issues its improper orders in this case.

The whole thing is to try and drag out Flynn’s dismissal beyond the November election in the hope that President Trump won’t be re-elected and Flynn will then have to get a pardon rather than have the case dismissed. The difference being in once case he claim he was improperly charged and never did anything wrong and is a victim versus the other where the liberals can claim he was guilty of sin and had to be pardoned to get out of trouble. That is what this is really all about.

    “..once the en banc DC Court issues its improper orders in this case.”

    You’re arguing two different things
    1) That the whole purpose of this is to drag things out into and past the Presidential election.
    2) That they are going to issue an improper order.

    The one does not imply the other. The end order could be 24-1 in favor of Flynn, but it won’t be released or revealed until that 1 gets done writing his/her dissent, which could easily be 2021. Not sure how it goes, but I would not put it past several of the judges to dissent until after the election, then when Trump turns out to be the winner, to flap in the breeze and do a “I meant to rule in favor of Flynn all along.” (Or if the worst happens, proudly slam Trump and Flynn in their rambling dissent)

They are just pissing Americans off even more

What a petty move. About all the deep staters can hope for is a Trump pardon. This will never be reviewed by the next AG.

Didn’t Sydney also ask for Sullivan to be removed from the case but that was not granted by the 3 judges. Is that part of this Aug hearing or just the Writ of mandamus instructing Sullivan to drop the case?

Sir Walter Scott nailed it: tangled webs. That Judge Sullivan is a spider with an agenda, and it is not justice.

While I certainly appreciate this fine post and the comments, I just cannot wrap my poor brain around what is happening here.

Sidney Powell’s tweeted response was “WOW”, because she is too nice to use vulgarity.

If antifa is looking for another courthouse……..

It’s past time for Judge Lynch to teach these Leftist “Judges” what “The Law” really means.

The shamelessness of it all is stunning. Really, though, nothing should surprise me after Rose Bird let the mask drop. She had no judicial experience when governor “moonbeam” appointed her chief justice of the Kali Supreme Court in 1977. She thought, and acted, like she had become royalty (she required appeals court judges to basically kiss her ass if they wanted to see her on official business.

Governors appoint Supreme Court justices in Kali, but voters have to reconfirm them periodically. She became the first and only chief justice of the Supreme Court to be voted out of office (overwhelmingly I must add) in 1986. If memory serves that was the first chance voters had to fire her worthless behind.

She claimed during the run-up to the election and afterwards that the only reasons she was opposed at all were “sexism, ” “bigotry,” and “right wing ideology” and blamed then-AG Ed Meese for fanning the flames of misogyny and hatred against her.

Not even her supporters could stomach that line of B.S. It was so obviously B.S. because AG Meese had never taken a position on whether she should be reconfirmed or not. Even her supporters, who were staunch opponents of the death penalty, knew the real reason voters opposed her.

She heard 64 death penalty cases during her nearly 10 years on the court, and every time she ruled that the lower courts had wrongly decided the case and vacated the death sentence.

Voters also sent two other justices, who sided with her every time, packing. She needed at least 3 other justices to side with her to prevail, and she often got 3 other justices to agree with her but that third justice survived the purge; more on why that is shortly.

She and the other two justices who were voted out made it no secret that they didn’t care what the law said or the people of the state wanted. She made no bones about the fact she would never uphold a death penalty case. I believe the last straw was the case of a murdering child-rapist named Theodore Frank. He kidnapped, raped, murdered, and then savagely mutilated the corpse of a two-year old girl.

Check out her rationale. While she agreed the state had proven beyond a reasonable doubt that he kidnapped the child, that he raped her, and then stabbed her something like two dozen times, the state hadn’t proved he intended for all that stabbing to result in the little girl’s death. Therefore he hadn’t committed first degree murder and couldn’t be executed.

Her ruling appalled even strong opponents of the death penalty, who had to admit the death penalty was a law on the books and if ever a crime called for it to be applied that was the crime. And Rose Bird didn’t care just how obvious she was about how her personal opinions trumped any law on the books when she disagreed with it. And anyone who didn’t like it could go to hell because she was the highest law in the state.

Even her supporters called this, “Rose flipping the voters of California the Bird.” Not only did she make it clear that her vote counted more than millions of people, but she told them to go pack sand and if they didn’t meekly say, “OK, you’re the boss” and go pack sand it proved they were vile knuckle-dragging subhumans. Which of course meant she was correct to spit on them.

The one judge who survived the house cleaning also opposed the death penalty, no doubt as strongly as Rose Bird. But unlike Rose Bird he noted that he had taken an oath to uphold the law as written, not how he would have liked it to be, and he would do his sworn duty no matter how he disliked doing it.

Kali was a different world back then. It was Reagan country. And judges were a different breed. They’re all Rose Birds now, giving the American people the finger whenever they get a wild hair up their butts to do it. With a smile on their face. I’m surprised any of their rulings are longer than 8 words. “F*** you, America, I’ll do what I want.”

Leftist judges haven’t just let the mask slip like they did forty years ago when they still cared about keeping up pretenses. They’ve taken the mask off, doused it charcoal lighter, threw it on their BBQ grill, made a video of the destruction, and posted the video on youtube. So it’s time to acknowledge that we are no longer a self-governing people, with a government based on the consent of the governed.

    GatorGuy in reply to Arminius. | August 3, 2020 at 5:03 am

    A great history lesson showing the influence a single person (Bird) can make on an important institution (Kali Supreme Court) and the Left’s unoriginality and mass cult-like qualities to enshrine her bizarre, idiosyncratic, lawless buffoonery into a practice-style and purpose emulated today by hundreds of activist judges, like the present derelict on the DCDC bench, pretending to work for the law while raping its very essence and substance.

    A great read and courtesy, thank you.