The D.C. Circuit Court of Appeals, ruling en banc (full court), has ruled against Michael Flynn’s attempt to force District Court Judge Emmet Sullivan to grant the government’s motion to dismiss criminal charges.

In the Opinion (pdf.) the Court held, among other things, that it was premature to force Sullivan to rule a particular way:

We first address Petitioner’s request to compel the District Court to grant the Government’s Rule 48(a) motion and vacate the appointment of amicus. We conclude that mandamus is unavailable because an “adequate alternative remedy exists.” …

Here, Petitioner and the Government have an adequate alternate means of relief with respect to both the Rule 48(a) motion and the appointment of amicus: the District Court could grant the motion, reject amicus’s arguments, and dismiss the case. At oral argument, the District Judge’s Attorney effectively represented that all these things may happen…. Even if the District Court were to deny the motion, there would still be an adequate alternate means of review perhaps via the collateral order doctrine or a fresh petition for mandamus challenging the denial … and certainly on direct appeal by Petitioner following sentencing (at which point he could raise amicus’s appointment as error), see 28 U.S.C. § 1291. Petitioner has not cited any case in which our Court, or any court, issued the writ to compel a district court to decide an undecided motion in a particular way—i.e., when the district court might yet decide the motion in that way on its own… The interest in allowing the District Court to decide a pending motion in the first instance is especially pronounced here, given that neither Petitioner nor the Government raised an objection in the District Court to the appointment of the amicus or more generally to the course of proceedings for resolving the Rule 48(a) motion.

I don’t have time right now to go into more detail. You can read the Opinion.

Judges Rao and Henderson, who ruled for Flynn on the original panel, filed dissenting opinions (starting at page 21 of the pdf.).

Short version: Take the procedural medicine Judge Sullivan wants to give you, then come back to us later.


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