A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders

1280px-Emmet_G._Sullivan_2012We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn.  Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal.  The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss.  In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion. 

The order is interesting in its language:

“Upon consideration of the emergency petition for a writ of mandamus, it is ORDERED, on the court’s own motion, that within ten days of the day of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020.”

Often judges are give the option of a response. This is stated in nondiscretionary term. Now consider the language directed at the Justice Department: “The government is invited to respond in its discretion within the same ten-day period.”

The judges reviewing the matter will be Circuit Judges Karen LeCraft Henderson, Neomi Rao and Robert L. Wilkins.

I have previously written about my concerns over inviting third party briefings in a trial hearing on sentencing or dismissal. However, my greater concern is over writings from legal experts who suggest that Sullivan could and should deny the motion to dismiss. While I have said that there are good-faith arguments to be made over the content of the review under Rule 48, much of this analysis ignores the strong case law to the contrary and the implications of such action for criminal defendants in the future.

Rule 48 (a) states that “The government may, with leave of court, dismiss an indictment, information, or complaint.” Such motions however have been consistently left to prosecutorial discretion.  The notion that Sullivan would insist on the Justice Department prosecuting a case is bizarre, particularly when the Justice Department has determined that it can no longer do so ethically and that the prosecution was marred by misconduct.

US-CourtOfAppeals-DCCircuit-SealI have been highly critical of the legal commentary suggesting that Sullivan would be on good, if not commendable ground, in denying this motion and sentencing Flynn.  There are a myriad of cases that reaffirm the prosecutorial discretion underlying these motions as an Executive Branch function. Putting those cases aside, the D.C. Circuit handed down a strong precedent in favor of the Justice Department in U.S. v. Fokker Servs. B.V., a case where the appellate court granted the relatively rare relief of a mandamus order against a trial judge.  In that case, the trial court was also leery of a decision not to prosecute.  The Justice Department wanted to enter a Deferred Prosecution Agreement (DPA) with a Dutch company accused of violating U.S. sanctions and export control laws. The trial court felt the company was getting off too lightly. Sound familiar?

The D.C. Circuit swatted down the trial judge, ruling that

“The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces … whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.. . . Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether … to dismiss a proceeding once brought.”

Notably, the decision was written by Sri Srinivasan, an Obama appointee who has been on the short list for liberal Democrats.  Judge Srinivasan stressed that “‘judicial authority is … at its most limited’ when reviewing the Executive’s exercise of discretion over charging determinations.”  That decision was unanimous with judges from across the ideological spectrum (Judge David B. Sentelle, Judge Laurence H. Silberman and Judge Srinivasan).

That is the authority that Judge Sullivan actually cited for his orders.

225px-ruth_bader_ginsburg_scotus_photo_portraitThen there was the unanimous decision recently in U.S. v. Sineneng-Smith by Justice Ruth Bader Ginsburg on the issue of courts using outside or third-party arguments.  We recently discussed the decision. The Court slammed the United States Court of Appeals for the Ninth Circuit in a criminal immigration case.  Like Sullivan, the Court was not satisfied with the party arguments so it ordered a round of new amicus briefing and then relied on the arguments of the outside parties.  Notably, this was still better than what is happening in the Flynn case, which is a trial proceeding before sentencing.

Ginsburg wrote that the effort violated the “party presentation principle.” She declared “courts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”  The reliance on such third party arguments unified the Supreme Court as “depart[ing] so drastically from the principle of party presentation as to constitute an abuse of discretion.”

Nevertheless, on site after site legal experts are assuring readers that Judge Sullivan has ample authority and reason to deny the Flynn motion as well as enlist third parties to make critical arguments in a trial criminal proceeding.  For example, Noah Feldman and Laurence Tribe, are widely cited for supporting Sullivan’s authority.  However, mainstream media and many sites have been declaring that Sullivan can and should refuse the dismissal.

Some of these sites have relied on the recent research of Professor Thomas Frampton who contested the common view that Rule 48 is meant to protect defendants like Flynn.  Frampton flipped the presumption and says that it was actually meant “to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants” and thus “drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn.”   The research is quite interesting but in my view unpersuasive.  First and foremost, Frampton (to his credit) acknowledges that “the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong.”  Thus, he is contesting existence precedent, which is perfectly acceptable but telling.  Second, I do not see how this position could be upheld.  It would mean that courts could regularly refuse to allow defendants to go free because they disagreed with prosecutors.  Unpopular defendants could find themselves captives to judges who simply want to mete out their own vision for law enforcement.  In the Flynn case, such judicial overreach would be assisted with the help of third parties brought into the case by the court.

The Justice Department has long opposed such judicial interventions. Bill Clinton’s Attorney General Janet Reno warned Congress years ago not bar the court from overruling decisions of the Justice Department, stressing that “Our Founders believed that the enormity of the prosecutorial power — and all the decisions about who, what, and whether to prosecute — should be vested in one who is responsible to the people.” When he was Deputy Attorney General, Eric Holder made the same objections that prosecutors must make such decisions and that he would resist courts wanting to “trammel upon the Executive’s core prosecution power.”

In other words, there is much for Judge Sullivan to address in ten days if he is going to defend a possible denial of the motion and his outsourcing of the argument in the case.

Here is the order: D.C. Circuit order

273 thoughts on “A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders”

  1. https://thefederalist.com/2020/05/29/declassified-flynn-transcripts-contradict-key-mueller-claims-against-flynn/

    The transcripts of the Flynn-Kislyak calls are here. The subject matter is perfectly banal. The FBI had no business interrogating him about these matters, much less hitting him with trumped up false statements charges. The only way justice is done in this case is if not one person implicated is left employed by the federal government or in possession of a law license.

    Of course, partisan Democrats will manufacture excuses for this. We have nothing to say to each other anymore.

    1. Even more sinister is the outgoing administration’s actions against Russia would force Russia to respond and the incoming administration was being set up to either allow it to escalate by doing nothing, or we get 3 years of what we got.

  2. I strongly disagree with the opinion that the DOJ can dismiss a case after a guilty plea has been entered. Flynn can only be pardoned now. His case can no longer be dropped. It is not logical.

    1. How many times have we heard them screeching, just read the Mueller report? We have a very serious problem when these enemies of the state are permitted to vote.

    2. there is reason to believe that Mueller’s crew was fixing to pull on the President the scam they pulled on Flynn.
      Are you saying Trump was planning on pleading guilty to a crime he did not commit? because that is the only way the same thing could happen to trump.

      The Flynn flam scam is that Mueller was able to find a crime where the FBI could find no crime.
      How did Mueller find a crime that the eluded the FBI? He got help from Flynn.
      Without help from Flynn it would not be possible for Mueller to prosecute Gen Flynn.
      With Flynn helping, Mueller did not need evidence of crime.

      The FBI had already concluded that they did not have evidence that Flynn committed any crime and Mueller found no new evidence.

  3. J H Kunstler had a great article on Flynn, and a couple of unique ideas on what is going on:
    The Unspooling

    What “the Resistance” really fears more than anything is General Michael Flynn’s mouth. He’s been under a judicial gag order since his case went before Judge Emmet Sullivan’s federal district court. Understandably, Gen. Flynn wasn’t eager to complicate his unjust plight with a contempt citation. Judge Sullivan’s recent shenanigans have one object: to keep that gag order in force as long as possible. The moment Judge Sullivan confirms the DOJ’s move to dismiss the charges, as he is duty-bound to do, General Flynn will be free to offer his views to the public. That might be inconvenient in an election season.

    I’m sure he has a lot to say. Gen. Flynn was head of the Defense Intelligence Agency for two years (2012 – 2014) under Barack Obama, and he knows a ton about every crooked operation Mr. Obama presided over, including the Benghazi fiasco, the Ukraine regime change op, and especially Mr. Obama’s hijacking of the NSA supercomputer surveillance database known as “the Hammer,” which was set up originally to track terrorists and then used by DNI James Clapper and CIA chief John Brennan to spy on Americans, most particularly Mr. Obama’s political adversaries. It’s rumored that Mr. Obama took the database with him when he left the White House, and it is said to contain great gouts of usefully damning information about just about everyone in government, including senators, congressmen, and Supreme Court justices.

    Gen. Flynn became an antagonist to Obama & Co. when he objected to the nuclear deal they were cooking up with Iran and when he spoke out against the CIA’s 2013 Timber Sycamore op to arm and give money to Isis terrorists opposing Syrian President Bashar al-Assad. Mr. Obama canned Gen. Flynn in 2014. What really sealed Gen. Flynn’s fate was when he started publicly complaining about the politicization of John Brennan’s CIA. The New York Times quoted him saying, “They’ve lost sight of who they actually work for. They work for the American people. They don’t work for the president of the United States. Frankly, it’s become a very political organization.”

    And a few months later, he jumped on Donald Trump’s campaign bandwagon. When he led the cheer “Lock her up” at the Republican convention, you can imagine how that gave the heebie-jeebies to a whole lot of other Deep State denizens besides She-Whose-Turn-Was-Foiled. And then, Lord have mercy, he was appointed to sit at Mr. Trump’s very elbow in the West Wing as National Security Advisor! Well, you can imagine the tremors that provoked. Gen. Flynn had declared his intention to completely reorganize, partially dismantle, and audit the intel community monster that had spread like a slime mold through the government. Mr. Brennan especially feared the audit part of the deal, since his agency regarded the billions of dollars that flowed in and out of it as just another one of its sacred secrets. Flynn had to be stopped.

    So, John Brennan concocted the RussiaGate scam to put over the idea that General Flynn was an errand boy of Vladimir Putin ­—lock him up! — and for good measure, Mr. Trump probably was, too. Once they embarked on that grand misadventure, and enlisted the foolish James Comey and his FBI zealots to assist, the gang found themselves involved in a dangerous game of sedition, poorly thought out and executed desperately. And finally, by all that’s holy, the improbable Mr. Trump actually won the election, ensuring that he would be privy to every dark secret moldering in the vaults of the US government.

    For three years, the whole wicked scheme has been slowly but steadily unspooling. The hapless (and perhaps senile) Robert Mueller was brought in to cap what threatened to become a political nuclear meltdown. We must suppose that Mr. Mueller was just a figurehead, and yet the supposedly brightest gang of Lawfare attorneys he enlisted — Weissmann, Van Grack, Rhee, Zebley, et. al. — absolutely blew it. They came up with zilch on Russian collusion, they muffed the attempt to nail Mr. Trump on an obstruction of justice rap (and watched helplessly as the inept Schiff & Nadler flopped fecklessly at impeachment), and now, having been exposed in the malicious prosecution of Gen. Flynn, they were forced to drop the case against him.

    Finally, Judge Sullivan was recruited by The Resistance in a last-ditch effort to keep Gen. Flynn silent for a couple months more by ginning up an amicus circus that would invite a zillion bogus filings of briefs to be meticulously examined and argued, a pointless exercise in sound and fury. In doing so, he contradicted 25 of his own previous rulings against amicus filings by the defendant, and also moved in violation of a Supreme Court decision (Sineneng-Smith, 2020) and a DC Circuit case (Fokker Services 2016), as well as federal court rules against the use of amicus filings in criminal proceedings.

    Now he has a few days to answer a mandamus motion from the US Court of Appeals for the DC Circuit to cut the sh1t and do his bound duty in the case. I won’t rehearse the separation-of-powers argument, except to say that Judge Sullivan doesn’t have a leg to stand on, and will be lucky if he is not reprimanded by the higher court. He’s been played by the Lawfare gang and exposed as a useful idiot. They’ve tossed aside his personal honor like a banana skin. Gawd knows what else prompted him to lawyer-up.

    The colossal melodrama of a sedition conspiracy is unspooling swiftly now. Before much longer, US Attorney John Durham will weigh in with something, whether it’s a mere report detailing gross abuses of power, or perhaps a string of hard indictments against the seditionists. With bales of evidence of their misdeeds now in the public domain, the various players must be turning on each other viciously now. There’s probably not enough room under the proverbial bus to throw anybody else. They’ll need a train.

    Also, comically, FBI Director Christopher Wray opened an “internal investigation” last week to ascertain whether any current members of his agency engaged in any misconduct around the Flynn case. That’s cute. It only took him three years. Of course, most of the major perps have already been fired, Comey, McCabe, Strzok, Page. Why is Mr. Wray even still in that job, where his main occupation has been obstructing the release of court-ordered and congressionally subpoenaed documents?

    You know what would be really a great move? Fire Chris Wray’s a$$ and replace him with outgoing Acting DNI Richard Grenell. Let Mr. Grenell just be Acting FBI Director for the statutory six months moving toward the election. Don’t even bother to nominate him and go through a senate confirmation. I bet a lot remaining information would get unstuck fast.

    Oh, and get ready for Gen. Michael Flynn to speak. He might have a few interesting things to say. Not all of the news media will ignore him, and then those who do will have a lot to answer for about their long-running complicity in the criminal conspiracy to overthrow a president.
    I can not link this because of the wordpress filter.

    Squeeky Fromm
    Girl Reporter

    1. Squeeky– Thanks! That’s a great article. Ever since Robert’s bizarre decision on Obamacare I have wondered if they spied on him. Maybe someday we will find out. Nice to see someone else thinks Sullivan is a not very bright and expendable tool. I hope Flynn has a lot to say when he is free of these monsters.

    2. For three years, the whole wicked scheme has been slowly but steadily unspooling. The hapless (and perhaps senile) Robert Mueller was brought in to cap what threatened to become a political nuclear meltdown. We must suppose that Mr. Mueller was just a figurehead, and yet the supposedly brightest gang of Lawfare attorneys he enlisted — Weissmann, Van Grack, Rhee, Zebley, et. al. — absolutely blew it. They came up with zilch on Russian collusion, they muffed the attempt to nail Mr. Trump on an obstruction of justice rap

      “Unspooling” is a good word to describe it. The Mueller stories are designed to unravel or unwind just like a spool of thread. The obstruction stories starts with the phony Flynn lied to the FBI story.

      The phony Flynn lied to the FBI story was entirely created by Mueller who was employed by the Trump DOJ. Before the Trump DOJ captured the Russia investigation the FBI had established that Flynn had not lied in that FBI interview or committed any other crime. The Flynn lied to the FBI story was designed to fall apart because the evidence was always there to show he did not.

      After the Flynn lied to the FBI story falls apart then the Trump obstructed justice for twisting Comey’s arm to not prosecute Flynn for lying to the FBI story also falls apart. The Flynn lied to the FBI story was never real and thus the Trump tried to block the prosecution of Flynn story was was also never real and also entirely fabricated.

      Then we get the next fabrication in the spool of stories that Trump tries to fire Mueller because it is leaked that Mueller is investigating Trump for the previous phony story that he tried to block the prosecution of a crime that never happened. And of course that is leaked and then we get another phony story of another attempt to fire Mueller because he is investigating the previous phony story. And on and on it goes with each phony episode leading to the next.

      All these phony stories get leaked to the press so that those following along at home can get teasers of what the Mueller report contains long before its release. The Mueller Report reads like badly written soap opera.

  4. Judge Sullivan seems to be taking advice from someone who has ‘larger’ goals, the type of person who says it is necessary to break eggs to make an omelette and who didn’t warn Sullivan he is one of the eggs. His reputation will never recover.

  5. Why didn’t you address the factually important difference between the Flynn case and the others you cited, namely that Flynn had already entered a guilty plea and isn’t awaiting prosecution, he is awaiting sentencing?

    Allowing him to remove his guilty plea raises important issues of perjury and contempt of court that could reasonably be argued can’t be ignored.

    1. I was going to say ‘nonsense’ but then….Oh, never mind, it’s nonsense.

    2. Allowing him to remove his guilty plea raises important issues of perjury and contempt of court that could reasonably be argued can’t be ignored.

      yes but the question that the judge needs to resolve is who all has been lying to the court?

      If Flynn agreed to a set of false facts presented by the prosecution and falsely confirmed by Flynn’s lawyers then it is evident that all the lawyers in this case have been lying to the judge.

      The facts of the case that were previously concealed from the court and are now out in the open make it pretty clear that the evidence in the case does not support a conviction on the charge of lying to the FBI. The current defense has also presented compelling evidence that the FARA charges were also bogus and yet all the attorneys involved in the case also kept that exculpatory evidence hidden from the court.

      Whether the judge eventually dismisses the case or not is not really not the relevant issue.
      The judge should before dismissing examine the facts and determine if anybody has been in contempt of the court.

      1. make it pretty clear that the evidence in the case does not support a conviction on the charge of lying to the FBI.
        To clarify:
        The evidence in the case absent the Statement of Offense that Flynn swore was true and correct does not support a conviction on the charge of lying to the FBI.

        The phony facts presented in the Statement of Offense are not supported by the rest of the record of evidence. Based on all the other evidence presented to the court there is no case against Flynn.

        The only way this becomes a viable case is if Flynn helps the prosecution by verifying the facts in the statement of Offense he swore was true. Flynn now says those facts are false and the rest of the evidence supports Flynn’s current claim.

  6. I find it hilarious that you can continue to be so polite and keep using the line that some of these media legal analysts are making these arguments in good faith. Let’s face it. You defended actual law and reason in front of Congress in direct opposition to those trying to railroad the system in order to, “Get Trump.” You are probably never going to get those Christmas cards and social event invitations back again. A whole lot of true believers and the Russia collusion and other nonsense have marked you with the scarlet letter.

    You might as well just call them like you really see them. In the age of Trump they have lost their minds to the point they may need to be committed, and some of them probably should stop practicing law if they cannot keep their bias in check or atleast flly admit that they have a biased at the very least.

    Thanks for writing about actual law though, whether you are arguing against the anti-Trmp hate mob, or against Trump himself, atleast the law and constitution has one guy trying to protect it.

  7. What do you when you’re Russia, and the big upset election victory in 2016 leaves the Obama/Hillary regime flailing their fists in the air falsely blaming you and banning all of your 35 ambassadors in a public hissy fit ?
    You don’t do anything. You realize the next administration is right around the corner and very quickly won’t be on that crazy train.
    What do you do when you’re James Comey and the “clueless intel agencies” he speaks of ? You go out of your minds, incapable of imagining why Russia isn’t retaliating – at least that’s the big fat lie you tell the public, to cover up the other big fat lie about election meddling.
    Then you hone in the target you’ve been targeting anyway for many months with a big fat zero to show for it. Flynn.
    So there you have it. Besides needing to get Flynn because he would quickly discover all the bodies buried in the political weaponization of unmasking and intel gathering on the Trump campaign, you needed a scapegoat to cover up your plotted public expulsion of Russians to pretend you’re really really mad and the meddling was really really bad, when it was nearest to nothing.
    It’s just criminals playing stupid, as usual, committing more crimes in a scam.

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