UPDATE - D.C. Circuit Orders Judge Sullivan to Respond to Michael Flynn Petition

D.C. Circuit Orders Judge Sullivan to Respond to Michael Flynn Petition
by JOEL B. POLLAK21 May 2020

https://www.breitbart.com/politics/...ullivan-to-respond-to-michael-flynn-petition/

The U.S. Court of Appeals for the District of Columbia Circuit ordered D.C. District Court Judge Emmet G. Sullivan on Thursday to respond by June 1 to former National Security Advisor Michael Flynn’s writ of mandamus petition.

On Tuesday, Flynn’s lawyer, Sidney Powell, filed a petition for the writ of mandamus, asking the appellate court to grant the Department of Justice (DOJ) motion to dismiss the charges against Flynn. She also asked the court to take Judge Sullivan off the case, and to vacate his order inviting outside arguments against dismissing the prosecution.

Flynn pleaded guilty in 2017 to lying to the FBI, though it was not clear he had actually done so. Later, as evidence emerged of potential FBI and DOJ misconduct, Flynn sought to withdraw his plea. After Attorney General Willam Barr assigned U.S. Attorney Jeffrey Jensen to review the case, new documents were turned over to the defense that suggested the FBI knew Flynn had done nothing wrong but targeted him anyway in an effort to have him removed.

Earlier this month, the DOJ filed a motion with Judge Sullivan asking to drop the case. But the left, and the media, cried foul, and Sullivan responded favorably to arguments that he should allow outside counsel to intervene by filing amicus curie (“friend of the court”) briefs — an unusual step, and one that he had refused to allow earlier in the case.

The order Thursday directs Judge Sullivan to respond within ten days — and merely invites the DOJ to file a response, if it wants to, as well:

Sidney Powell ??⭐⭐⭐
@SidneyPowell1
· 3h
#BREAKING D.C. Circuit has ordered Judge Sullivan to respond to #FLYNN Petition for Writ of Mandamus by June 1.
Judges Henderson, Wilkins, and Rao.@GenFlynn @BarbaraRedgate @seanhannity @dbongino @WhiteHouse @JosephJFlynn1 @GoJackFlynn

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Here is the docket & order. A court of appeals grants a mandamus only after the judge has had an opportunity to respond. Here the Circuit ORDERS Sullivan to respond. The short time-table recognizes the seriousness of the issue to the proper administration of justice.@POTUS

The case has been assigned to Judges Karen L. Henderson (appointed by George H.W. Bush); Robert L. Wilkins (appointed by Barack Obama); and Naomi Rao (appointed by Donald Trump).

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

Re: D.C. Circuit Orders Judge Sullivan to Respond to Michael Flynn Petition

Be interesting to see what the DOJ and Judge Sullivan say.

Re: D.C. Circuit Orders Judge Sullivan to Respond to Michael Flynn Petition

Win,lose or draw the SOB sullivan needs to be impeached!!
Mike

Re: D.C. Circuit Orders Judge Sullivan to Respond to Michael Flynn Petition

mla2ofus said:

Win,lose or draw the SOB sullivan needs to be impeached!!
Mike

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He’s the poster child for what’s wrong with the Judiciary

Re: D.C. Circuit Orders Judge Sullivan to Respond to Michael Flynn Petition

Thoughts on DC Circuit Court of Appeals Ordering Judge Sullivan to Respond to Flynn Petition
Posted at 6:45 pm on May 21, 2020 by Shipwreckedcrew

https://www.redstate.com/shipwrecke...n-and-why-it-doesnt-help-the-anti-flynn-side/

Earlier today, the Court of Appeals for the DC Circuit issued an extraordinary order — on its own motion — directing Judge Sullivan himself to file a response to the Petition for Writ of Mandamus filed by Gen. Flynn earlier this week.

In more than 30 years of practicing law, almost exclusively in federal courts, I have never seen a federal appeals court direct a district court judge to personally respond to a litigant’s motion, petition, or appeal.

As significant, in my opinion, is that the Order directs Judge Sullivan to address the Rule 48(a) issue in relation to the Circuit Court’s earlier decision in United States v. Fokker Services.

As many reading this are probably aware, I wrote extensively on the Fokker Services decision in this story and concluded that it left Judge Sullivan no choice other than to grant the Department of Justice’s Motion to Dismiss the case against General Flynn. You can read that story here — Recent Decisions of Court of Appeals for DC Circuit Show Sullivan Must Dismiss Flynn Case.

As I said in that piece, the following language in the Fokker Services case is the reason for the Court’s focus as set forth in today’s Order because there seems to be no way around the following:

While the exclusion of time is subject to “the approval of the court,” there is no ground for reading that provision to confer free-ranging authority in district courts to scrutinize the prosecution’s discretionary charging decisions. Rather, we read the statute against the background of settled constitutional understandings under which authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.

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Recall that the Fokker Services case involved a question about language in the “Speedy Trial Act,” a statute passed by Congress and signed into law by the President. That statute provides that agreements between the parties to “exclude time” under the provisions of the Act are only effective with “approval of the court.” Rule 48(a) — a procedural rule, not a statute — requires “leave of court” before a government motion to dismiss a criminal case will be granted.

The key to the ruling by the DC Circuit in Fokker Services — as I said in my earlier story — is the point made by the Court there that the kind of “discretion” conferred upon trial courts by language such as that found in the Speedy Trial Act must be interpreted against the backdrop of the constitutional framework that places certain discretionary decision-making solely in the province of a different branch of the government. So, while a district court need not be a “rubber stamp” in granting “approval” to exclude time — the question before it in Fokker Services — that does not mean a district court can rely on that authority as a basis to conduct a review of the justification offered when the issue in question involves discretionary decision-making on matters solely committed to the Executive Branch.

That Judge Sullivan might disagree with the rationale advanced by the DOJ in the motion to dismiss is not pertinent to a determination of whether the motion is properly grounded — and the “leave of court” condition is most properly read as only requiring that such a motion be properly grounded — i.e, there is a factual and/or legal reason for the decision. Because it’s not necessary for Judge Sullivan to agree or accept the rationale put forth in the motion for dismissal to be called for, there is no purpose to be served by the searching inquiry he seems determined to conduct. Unless he can identify in his response a potential course of inquiry that leads to something other than a possible disagreement with the motion on factual and/or legal grounds, the Appeals Court is likely to grant the Petition and issue a Writ of Mandamus directing Judge Sullivan to dismiss the case forthwith.

Lastly, depending on the tenor and tone of his response, he could be opening himself up to a Writ of Mandamus directing that the case be reassigned to another district court judge for a decision on all pending motions. That might ultimately be the simplest path for the Court of Appeals to take, and would not necessitate that it weigh in at all on the substance of the procedural question raised by the Petition.

One thing to watch closely in terms of how Judge Sullivan responds — the Order issued today does not block his ability to allow amicus briefs to be filed. He could respond by delivering a sudden flurry of orders granting leave of court for the filing of individual amicus briefs, most of which will be aimed at providing to Judge Sullivan exactly the response that the Appeals Court has directed him to provide.

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