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D.C. Circuit Slams the Brakes on Order That Directed Michael Flynn Judge to Dismiss the Case


U.S. Court of Appeals for the District of Columbia Circuit responded on Friday to a petition for rehearing en banc by halting a prior order for U.S. District Judge Emmet Sullivan to dismiss the Michael Flynn case.

The order comes the day after Sullivan, through his lawyer Beth Wilkinson, asked the full court to rehear his case against the immediate dismissal of the prosecution. A three-judge panel on the D.C. Circuit previously granted Flynn’s emergency petition for writ a mandamus on June 24, directing Sullivan to dismiss the case. Trump-appointed Circuit Judge Neomi Rao penned the majority opinion, which George H.W. Bush-appointed Circuit Judge Karen L. Henderson joined.

Circuit Judge Robert L. Wilkins, who was appointed by Barack Obama, dissented.

The Friday order in re: Michael T. Flynn said that Flynn’s lawyers had to respond to Sullivan’s petition within 10 days. The D.C. Circuit also invited the Department of Justice to submit a response. The prior order to dismiss the Flynn case will be stayed “pending disposition of the petition for rehearing en banc”:

Upon consideration of the petition for the rehearing en banc, it is, on the court’s own motion,

ORDERED that, within 10 days of the date of this order, petitioner file a response to the petition for rehearing en banc. not to exceed 3,900 words. The government is invited to respond in its discretion within the same ten-day period. Any response from the government may not exceed 3,900 words. Absent an order of the court, a reply to the responses will not be accepted for filing. It is

FURTHER ORDERED that the effectiveness of this court’s order issued June 24, 2020, will be stayed pending disposition of the petition for rehearing en banc. See D.C. Cir. Rule 41(a)(3) (order granting writ becomes effective automatically 21 days after issuance in the absence of an order or other special direction of this court to the contrary).

Wilkinson argued Thursday that the D.C. Circuit was wrong to grant Flynn’s petition for a writ of mandamus, which directed Judge Sullivan dismiss the case before the district judge had ruled on the motion to dismiss.

“It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions—it does not preempt them,” the petition said. “This case satisfies the requirements of Rule 35, and en banc review should be granted.”

Sullivan controversially appointed an amicus curiae to present arguments against dismissal of the case, rather than dismissing the case outright. Flynn previously pleaded guilty to lying to the FBI, then fired his lawyers and moved to withdraw his plea. The amicus curiae, retired judge John Gleeson, was also asked to present arguments on whether Flynn committed “perjury.” Gleeson said that Flynn did perjure himself and deserved punishment. Flynn’s lawyers and the Department of Justice are in agreement that the case should be dismissed immediately because there is no longer an Article III case or controversy.

[Image via Chip Somodevilla/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.