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Michael Flynn Judge Asks Full D.C. Circuit to Rehear His Case Against Immediate Dismissal of Prosecution


WASHINGTON, DC - DECEMBER 18: Former White House National Security Advisor Michael Flynn and his wife Lori Andrade leave the Prettyman Federal Courthouse following a sentencing hearing in U.S. District Court December 18, 2018 in Washington, DC. Flynn's lawyers accepted the judge's offer to delay sentencing for lying to the FBI about his communication with former Russian Ambassador Sergey Kislyak. Special Prosecutor Robert Mueller has recommended no prison time for Flynn due to his cooperation with the investigation into Russian interference in the 2016 presidential election.

U.S. District Judge Emmet Sullivan, through his counsel Beth Wilkinson, has asked for U.S. Court of Appeals for the District of Columbia Circuit to rehear his case against the immediate dismissal of the Michael Flynn prosecution.

The Thursday petition for rehearing comes after a three-judge panel on the D.C. Circuit granted Flynn’s petition for writ a mandamus on June 24, directing Sullivan to dismiss the case.

“The panel majority granted the extraordinary writ of mandamus to prevent the district court from receiving adversarial briefing and argument on a pending motion. The opinion is couched as a fact-bound ruling based on ‘the record before the district court,'” the Sullivan petition for rehearing began. “It in fact marks a dramatic break from precedent that threatens the orderly administration of justice.”

The three-pronged argument noticeably cited the Supreme Court’s “admonition” in Seila Law LLC v. CFPB, a case that was decided on June 29:

First, the majority undermined this Court’s consistent interpretation of the mandamus standard by forcing the district court to grant a motion it had not yet resolved, based on alleged harms to a party that did not seek mandamus, and in reliance on arguments never presented to the district court. Any one of these rulings would constitute an unwarranted dilution of the requirement that a petitioner lack adequate alternative remedies. Taken together, they threaten to turn mandamus into an ordinary litigation tool.

Second, the panel undercut Supreme Court and Circuit precedent in holding that the separation of powers precluded the district court from inquiring into the government’s Rule 48 motion. The Supreme Court’s decision in Rinaldi v. United States,434 U.S. 22 (1977) (per curiam),recognized a district court’s ability to hear an unopposed Rule 48 motion. Moreover, no Circuit precedent establishes the type of clear and indisputable right necessary to authorize the panel’s resolution of that constitutional question. That is especially so given the Supreme Court’s recent admonition that separation-of-powers questions are fact- and context-specific. See Seila Law LLC v. CFPB, ___ S. Ct. __, slip op. 2, 16–18 (June 29, 2020). Mandamus is not the place to make new law.

Third, the panel contravened Supreme Court and Circuit precedent in precluding the district court from appointing an amicus and scheduling a hearing. The Supreme Court and this Court have employed those practices to resolve cases where the parties agreed and the ultimate outcome was predictable. The panel cited no law precluding district courts from similarly considering both sides of an issue before deciding it.

Wilkinson said that the three-judge panel’s decision “threatens to turn ordinary judicial process upside down.”

“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.”

Flynn’s lawyers have fought tooth and nail against Sullivan’s appointment of an amicus curiae to argue against the Department of Justice’s motion to dismiss. The 2-1 panel decision was a boon for them, but there’s no guarantee the full D.C. Circuit will view the case the same way.

Read the petition in full below:

Emmet Sullivan D.C. Circuit petition by Law&Crime on Scribd

[Image via Chip Somodevilla/Getty Images]

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