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Michael Flynn’s legal team has filed a brief with the D.C. Circuit Court that lights into District Judge Emmet Sullivan for his bid to drag out the criminal case against Flynn following a motion to dismiss by the Justice Department — and says the court should not rehear arguments after a three-judge panel ordered Sullivan to grant that DOJ motion.
The former national security adviser’s lawyers argue that Sullivan’s court “has hijacked and extended a criminal prosecution for almost three months for its own purposes” and say precedent requires judges to defer to the government on motions to dismiss when it provides detailed reasons for why it wants to dismiss a case, as the DOJ did in the Flynn case. The government alleged that the bureau’s fateful interview of Flynn was “unjustified” by their investigation.
Sullivan then appointed a third-party “amicus curie” to argue against the granting of the government’s motion and scheduled a hearing to consider whether he should grant it in light of the fact that Flynn had previously pleaded guilty to making false statements to the FBI. Flynn later sought to withdraw his plea before the government, ahead of his sentencing, eventually decided to drop the case.
“Judge Sullivan’s stubborn disagreement with the Government’s decision to dismiss the case does not confer the right to contest it himself or through his amicus,” Flynn’s lawyers, including Sidney Powell, said. “His actions smack of vindictive animus against General Flynn and judicial overreach that have no place in America’s justice system. No precedent even suggests a ‘hearing’ on a substantial government motion to dismiss. Not one.”
After Sullivan appointed the amicus and said that he would hear arguments on whether to approve the dismissal motion, Flynn’s lawyers filed for a writ of mandamus — an order from a higher court that a lower judge or a government official carry out a certain function of their job — with the D.C. Circuit. A three-judge panel sided with Flynn and the DOJ, issuing the writ of mandamus. Sullivan then applied for a rehearing with the full panel of 11 judges on the issue of the writ. Such a rehearing is called “en banc” in legalese.
Flynn’s lawyers allege that Sullivan is forgetting his role as a judge and is not justified in dragging the case out further.
“The umpire cannot force the teams to play extra innings after the game is over. He, the players, and the spectators need to go home and turn off the floodlights,” they write.
The brief also notes previous comments Sullivan has made about the Flynn case.
“Judge Sullivan’s extraordinary actions arise solely from his disagreement with the Government’s decision to dismiss the case against General Flynn,” it says. “Not only did he wrongfully tar General Flynn with a baseless assertion of treason, but he has been vocal that General Flynn should be punished severely. Disagreement over a charging decision provides no basis to deny the government’s motion.”
But Sullivan’s legal team argued that it is allowable for judges to question the “reasoning and motives” of prosecutors when dismissing a case and that what is “extraordinary” here isn’t that he is asking for a hearing on the prosecutorial motion, but that the circuit court issued the writ of mandamus preventing him from doing so.
“Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold. All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion. Outside the panel opinion, those actions have not been considered inappropriate—much less an extreme separation-of-powers violation justifying mandamus,” Sullivan’s brief says.
It concludes: “Considering both sides of an issue before ruling is not [beyond a judge’s authority]—it is sound judicial practice.”