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Full D.C. Appeals Court Rules Against Michael Flynn, Will Not Force Judge To Dismiss Criminal Case … Yet

Full D.C. Appeals Court Rules Against Michael Flynn, Will Not Force Judge To Dismiss Criminal Case … Yet

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

https://www.youtube.com/watch?v=3i83wPkcB-k

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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Comments

There are two sets of laws in this Nation. One for Democrats and a much stricter version for Republicans.

    objection in reply to dystopia. | August 31, 2020 at 12:57 pm

    You can be sure that Chief Justice John Roberts will use procedural legerdemain to avoid going anywhere near this. The bedrock of Roberts judicial principles is quicksand.

      Tom Servo in reply to objection. | August 31, 2020 at 2:25 pm

      The entire goal is to keep this going until November 5th, so Biden can use it as a campaign issue. Now Sullivan’s been given the green light to do so. They hope that Biden wins, so he can reverse the decision to drop charges, but if Trump wins, they’ll drop it. Won’t be of use to them anymore.

        If Biden wins, Trump will pardon him before he leaves office. He just doesn’t want to give the Dims the fodder for their fever-dream “news” broadcasts unless he has to.

          txvet2 in reply to Paul. | August 31, 2020 at 5:16 pm

          In either case, they’ll have succeeded in keeping him out of office, which, I think, is what all of this was about in the first place.

        Brave Sir Robbin in reply to Tom Servo. | August 31, 2020 at 6:47 pm

        It is my belief Judge Sullivan will not allow Flynn to retract his guilty plea and sentence him. An attempt to further go after Flynn with perjury, which requires a referral, is unlikely, in my view. However, it is conceivable Sullivan will inflict Flynn with contempt of court, which would be outrageous but is a power to which judges grant large leeway to other judges so they may control their courts. This is one of the worst judicial process abuse cases I have ever seen and destroys the perception of the people of the basic fairness of the judicial system.

        This is an incredibly important election folks, VOTE. Encourage others of like to mind to VOTE. Help get people to the polls to VOTE.

        Remember, if you are a Republican, you have been decreed by the highest ranking Democrat office holder an “enemy of the state.” This rhetoric justifies the full use of the entirety of all federal power against you. This is an election of personal survival.

    MattMusson in reply to dystopia. | August 31, 2020 at 4:38 pm

    This is the very definition of an Inquisition. Where Judges ask questions, indict defendants and pass judgement.

    This is not supposed to happen in the USA. Period.

    leeman in reply to dystopia. | August 31, 2020 at 5:20 pm

    Didn’t this same court just grant Hillary Clinton mandamus relief claiming she has an indisputable right not to be asked question in a pending FOIA case.
    They are blind to their own double standards.
    It would be funny if Sullivan fails to heed the hints they are giving him and leave them with egg on their face.
    I doubt that will happen though. Sullivan will probably just grant the motion now and pretend he had no ulterior motives all along.

      randian in reply to leeman. | September 2, 2020 at 8:42 am

      Blind? No, I think a better adjective would be “shameless”. They know exactly what they’re doing, and they don’t care if you know too.

American Human | August 31, 2020 at 12:54 pm

Just look at how much time, effort, and money as been wasted if the judge would just rule instead of play his own little games.

Also, I believe that the law system in this country uses their silly Latin phrases to keep the rest of us in the dark about what is really going on.

    tom_swift in reply to American Human. | August 31, 2020 at 1:38 pm

    Yes, it’s worth noting that the Constitution is written in plain English, not in some mutant pig-Latin. Probably because it was meant to clarify things, not obfuscate them.

      Which is why the Bible was translated, so some onerous quasi-government couldn’t dictate what the Bible said, man could read it for himself. I’ve seen it written that the constitution was written at an 8th grade level+ (18th grade for today’s students).

        InEssence in reply to stl. | August 31, 2020 at 11:09 pm

        It also is why Jerome compiled (created) the Bible which at the time was known as the Vulgate (for the common man).

This is so outrageous and contemptible. Proof that federal judges place more importance on protecting one of their own, than they do on upholding procedural fairness and a defendant’s right to have a trial presided over by a neutral and dispassionate arbiter, which Flynn’s antics and personal animus for Flynn have demonstrated that he is not.

    guyjones in reply to guyjones. | August 31, 2020 at 1:02 pm

    I mean, Sullivan’s antics, obviously! 🙂

    Not so, as the same Circuit issued mandamus on August 14, 2020, for the benefit of Hillary Clinton.

    I doubt that Judge Lamberth will ask for an en banc hearing, even though the Circuit Court seems to have said that a District Court Judge has a right to do so.

    I note that all three judges who granted Hillary mandamus reversed themselves in a matter of weeks in the Flynn matter.

So, the Court is stating that it is perfectly acceptable to have a judge cast off his robes and assume a prosecutor’s role, by inviting third parties into the courtroom, to argue against the defendant, in a criminal trial?

This is stuff that even a first-year law student can understand represents a brazen violation of judicial ethics. This is third-world, totalitarian show trial stuff.

Two questions:
1) What was the “Appointed by” – “Voted for/against” breakdown on these ‘non-political judges’?
2) Is anybody else looking forward to the inevitable declassification/released documents that will now show up? Because literally every time Judge Stevens has recently has done a “And this is why we need to lock up Flynn” statement, it gets followed by “And the Government released the following fifty documents showing just how Flynn Was Set-Up by the Obama administration.”

And there goes the last bit of faith in our justice system.

    iconotastic in reply to Exiliado. | August 31, 2020 at 10:26 pm

    Why should Sullivan and other Democrats care if faith is lost? The Judiciary has plenty of men with guns who will enforce their orders no matter how disillusioned Americans become.

Do we have a deep state? Does anybody think that they will sit on the sidelines and not attempt to steer this?

Perhaps a larger context will expose the agenda that is being processed in the legal details. If something does not make sense, look for an agenda that is different than your agenda (e.g rule of law, logic, fairness, etc.). Look for the insurrection.

Yes. I am cynical.

2smartforlibs | August 31, 2020 at 1:15 pm

All liberal panel judging a judge.

Defense: He now pleads not guilty.

Prosecution: We now accept that he is not guilty, drop all charges.

Judges: Bullsh!+, were gonna hang his a$$!

    CKYoung in reply to CKYoung. | August 31, 2020 at 1:26 pm

    The ball is in sullivan’s Court. Guess we’ll see what happens. More declassification going on, so this might all be street Theater so the American people can see how corrupt the obama wing of the DoJ/fbi were.

freespeechfanatic | August 31, 2020 at 1:15 pm

Sick, just as it was sickeningly predictable. It is not only what they’ve done to this man, targeting him for personal ruin, but how they’ve demonstrated the lengths they will go to protect their empire of corruption. Americans, at least patriots, have every reason to despair of justice in America.

    Meanwhile, the vile Obama — the man who politicized DOJ, FBI and CIA, and, who authorized illegal spying in a sabotage/coup attempt aimed at undermining his duly-elected successor, and his successor’s choice for National Security Advisor, has the unbelievable gall to prance and strut around, making speeches at the Dhimmi-crat National Convention alleging that he — of all people! — represents a paragon of presidential virtue.

    Obama is despicable, absolutely revolting.

However it made it clear the case should be disposed of quickly. It is trying to save the Judiciary from the already tarnished reputation it has of treating cases differently based upon the political affiliation of the parties. Judges Beryl Howell, Sullivan, Amy Jackson-Berman, numerous Obama Judges have created a nightmare for the courts, and thrice now Roberts has assisted with absurd opinions.

    alaskabob in reply to puhiawa. | August 31, 2020 at 1:43 pm

    Is Sullivan delaying in hopes that a Harris/Biden DOJ reverses itself and allows the “traitor”, as Sullivan considers him, to be sentenced for crimes against the State Organ… the Democrat Party? Dreyfus 2020.

    His appointment of a “buddy of the court” was meant to give cover so let’s see what happens.

    The en blac judges had used procedurism to avoid a rebuke of a fellow traveler. The letter of the law is a dead letter.

    Again…the key is how this times out.

    aNanyMouse in reply to puhiawa. | August 31, 2020 at 7:07 pm

    “it made it clear the case should be disposed of *quickly*.”

    Lip service.
    Bureaucratic Class 8, Deplorables 2.

      aNanyMouse in reply to aNanyMouse. | August 31, 2020 at 7:29 pm

      Or, lets’ call the scoreboard
      Obama/ Farrakhan 8
      Montesquieu/ Madison 2

      Qualifier: ‘quickly’ dealt with by the District Court. They chucked that hot potato back to Sullivan as fast as they could, with fuzzy weasel-words in the decision that gives him full rein to pontificate on the case until next year.

      I’m upset, but not too upset, because I expect the DOJ to start releasing more documents every week this case remains in Purgatory.

lord–am sincerely sorry for gen. flynn–what recourse is there now for him?–for us?–such a blatant, partisan, corrupt effort to circumvent simple justice for this man

sullivan should be disbarred, stripped of his immunity and held personally liable for his glaringly obvious personal vendetta against mike flynn

just sickening

How much of this is actually ruling against Flynn, and how much opf this is to allow Sullivan to save face?

From the opinion:
“Moreover, as its counsel repeatedly stated at oral argument, the district court may well grant the Government’s motion to dismiss the case against General Flynn. In fact, it would be highly unusual if it did not, given the Executive’s constitutional prerogative to direct and control prosecutions and the district court’s limited discretion under Rule 48(a), especially when the defendant supports the Government’s motion. But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time.”

almost seems to direct Sullivan what way to rule.

“… we trust and expect the District Court to proceed with appropriate dispatch.”

Suggests that they expect Sullivan to “do this right”. It seems that there is sprinkled within the opinion that Sullivan is doing a no-no, but I will admit I have not yet read the full opinion so that may be wishful thinking.

The problem with this whole scenario is that the more I listen to people talk about Suliivan the morfe I believe he is dumb as dishwater. So can he take a clue?

No wonder the federal debt is so enormous. Too many people running around in costumes and doing nothing useful.

Well I guess that says it all about the D.C. court. Time to add more members.

The Friendly Grizzly | August 31, 2020 at 1:56 pm

More chargeable hours for Flynn’s attorneys to rack up.

Should Trump let the matter run its course before interceding? I’d love to see General Flynn back in the White House over the next few months before being appointed to the FBI or DoJ in Trumps second term.

    Lewfarge in reply to NotKennedy. | August 31, 2020 at 2:14 pm

    It would be bad “political optics” to pardon.
    Best is to let it play out so that he is totally ACQUITTED.
    Worst case would be having to pardon before President Trump would leave office, if if he loses the election.
    So far the “optics” have disclosed just how corrupt the “judicial” system is !!!

For some reason a court that has no problems creating new precedent they now claim there is no precedent to rely upon

“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.”

    Observer in reply to buck61. | August 31, 2020 at 9:48 pm

    The majority claimed that Flynn didn’t object in the trial court to the appointment of the amicus prosecutor, but in fact Flynn had objected to ANY amicus being allowed to participate in the case.

    Also, the appellate court’s order originally granting the en banc review said that the appeals court was granting it “upon consideration of the petition for rehearing en banc.” That petition for rehearing en banc was Judge Sullivan’s petition. The problem was that Sullivan, as the trial judge, had no right to petition for en banc review, and his doing so made him look like he was acting as a party to the litigation, which obviously he is not supposed to be. The majority resolved this embarrassing little problem by simply pretending that they weren’t granting Sullivan’s petition (even though their initial order explicitly said that they were). Instead, they claimed (dishonestly) that they were granting the en banc hearing because a member of the appeals court had requested that the appellate court, sua sponte, hold the en banc re-hearing.

    Just a couple of examples of how bogus this decision is. When the facts didn’t support their argument, the majority just made up new ones. It’s disgraceful on so many levels.

The 8-2 decision was exactly as Sullivan’s attorney argued, and part of me agrees with the reasoning. Basically, she argued to the full court that mandamus is improper when you don’t give the trial judge the opportunity to make a timely decision in a particular way. It was clearly a Catch 22 whether or not to allow Sullivan to continue to act the fool when there was a chance he could surprise everyone and rule for Flynn at the charade’s conclusion. As succinctly stated in the classic “Dumb and Dumber”, a one in a million chance is still a chance.

    …mandamus is improper when you don’t give the trial judge the opportunity to make a timely decision in a particular way.

    Ok, define ‘timely’ in this case. Flynn has been dragged through the courts with barbed wire for something that isn’t even a crime because he was set up by the FBI. He’s burned well over a million dollars in legal fees to a bunch of crooks who actually were working with the prosecution to get him to plead guilty, and over two years of his life have gotten flushed down the toilet. I think ‘timely’ in this case should be about an hour, but I’ll be generous and say Sullivan should dismiss this case today.

    He won’t, of course. He’s going to take more unprecedented steps, do more things outside of his authority, and continue to shred his judicial career until *somebody* puts their foot down. (And I have no confidence in SCOTUS to be that foot.)

      Ok, define ‘timely’ in this case.
      Does no one bother with the 6th Amendment anymore? This is ludicrous (on top of being patently political).

      until *somebody* puts their foot down
      Given how our gov’t is showing its corruption at all levels, in all branches, that “somebody” is going to have be the citizens themselves.

      randian in reply to georgfelis. | September 2, 2020 at 8:48 am

      Define “shred”. Unless he’s impeached and removed from the bench his career will remain intact.

This is the court that was packed during the Obama years, and this is what the Dems have announced they want to do should they return to power.

Maybe somebody should show Sullivan the internal polling that’s got Democrats in full-blown panic about the upcoming election.

It might help focus his attention.

The Doctrine of the Separation of Powers teaches no more.

Does anyone with even half a brain still not understand that when the rule says, and only by way of example, Eat only from this tree and not from that tree, the rule must be followed in any case and under all circumstances?

The CCADC’s en banc decision has just disobeyed the rule: its decision was tantamount to having eaten from the proscribed tree, claiming to bear for the consumer of its fruit the Knowledge of Good and Evil, rather than from the Tree of Life, guiding the court in its search for correct procedure vis-a-vis Judge Emmet Sullivan’s improper pursuit of Executive Power.

All hell will now break loose as Montesquieu, among other historic, contributory entities, observes from Government Heaven the result of the Court’s decision to allow Judicial hegemony over the Executive’s sole right and discretion of whether or not to initiate, continue, or terminate prosecution in any given case.

The en banc Court’s decision is decidedly and patently political and not jurisprudential in nature, and for that reason is particularly egregious and deplorable — no matter the federal judge’s opinion on the merits of doing so or not.

It’s an increasingly ugly — on its way to being probably the ugliest possible — election cycle.

What a mockery of justice! The Circuit Court ignores its own numerous precedences, including one that they handed down 17-days earlier in the Clinton matter.

I am
Very sad by this news, but not surprised…

If Sully was jjudge on Perry Mason – DA Burger and Lt Tragg would never have lost a case and the show coulda been named after them.

Well, Ruth needs to “checkout” so Trump and can install another justice. Payback can be such a bitch.

Hell, who knows, maybe in his second term, when he has more “flexibility” he will see to it that Hillary and her coterie get to experience some justice.

Meanwhile, Emmett Sullivan has made a colossal ass of himself for all to see.

Didn’t this same court just grant Hillary Clinton mandamus relief claiming she has an indisputable right not to be asked question in a pending FOIA case.
They are blind to their own double standards.
It would be funny if Sullivan fails to heed the hints they are giving him and leave them with egg on their face.
I doubt that will happen though. Sullivan will probably just grant the motion now and pretend he had no ulterior motives all along.

So this whole circus was just a big ploy to buy Sullivan more time???

Great.

Maybe “en banc” now means paid (off) with checks.

Any of the seven up for retirement before 2024?

Subotai Bahadur | August 31, 2020 at 8:26 pm

When the coming kinetic phase is over, the Left is going to try to insist that a) all the Constitutional rights they trashed and legal protections they abolished be applied to them, and then b) that they be granted quarter. Not gonna happen.

Subotai Bahadur

The Henderson dissent is very strong (I’d expect that from Rao, but Henderson is just as intense).
What is striking this time round is that the DC Circuit just came down AGAINST district court powers when a judge tried to order Hillary Clinton to answer questions orally as well as written, saying the judge was being harmful and intrusive by making her answer questions. BUt when it comes to a judge trying to order General Flynn to stay a criminal defender, passport surrendered and under threat of felony conviction, and investigating Justice Dept. inernal deliberations— the judge isn’t being harmful and intrusive at all. The contrast is truly amazing and the judges should be ashamed of being so openly political. Without the Clinton decision they could have pretended they just wanted to give discretion to trial judges, but not now.

Why is there not now a 6th Amendment lawsuit? “Violation of rights under color of authority”? Against the person of Judge Sullivan?

Why is this not now an immediate filing to the SCOTUS to slap Sullivan and the DC Appeals Court down hard with a 6th Amendment ruling?

the judges should be ashamed of being so openly political
Pfft. That can only happen when shame is reinforced with consequences. Ain’t none of that happening in our judiciary, lately.

Trump should pardon him out of spite.

Sullivan has ordered status reports with briefings for September 21.

So, while the Circuit Court said “we trust and expect the District Court to proceed with appropriate dispatch”, Judge Sullivan has a different plan.

I wonder how the eight clowns in the majority opinion like it now. Judge Sullivan is basically flipping them the bird.

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