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Michael Flynn’s Trial Judge Wastes No Time After D.C. Circuit Win, Orders Lawyers to Prepare for Oral Arguments


WASHINGTON, DC - July 10: Michael Flynn, former National Security Advisor to President Donald Trump, departs the E. Barrett Prettyman United States Courthouse following a pre-sentencing hearing July 10, 2018 in Washington, DC. Flynn has been charged with a single count of making a false statement to the FBI by Special Counsel Robert Mueller.

It didn’t take long for the federal judge presiding over former National Security Advisor Michael Flynn’s trial to order the parties to the criminal case to provide updates on where things stand and to come to an agreement on the path forward.

U.S. District Judge Emmet Sullivan, just one day after the full U.S. Court of Appeals for the District of Columbia Circuit declined to force him to dismiss the case, issued a minute order. Sullivan ordered Team Flynn, the Department of Justice and court-appointed amicus curiae John Gleeson to provide a joint status report—including a briefing schedule—by Sept. 21 at the latest.

“The parties’ joint status report shall propose a briefing schedule regarding the deadlines for (1) the government and Mr. Flynn to file any sur-reply briefs; and (2) the government, Mr. Flynn, and the Court-appointed amicus curiae to file a consolidated response to any amicus brief of non-Court-appointed amicus curiae,” the order said.

Sullivan also ordered the parities to propose “three dates and times” for oral arguments.

“If the parties are unable to agree on a joint recommendation, the joint status report shall include each party’s individual recommendations,” the order said.

The per curiam opinion of the majority on the D.C. Circuit concluded on Monday that Flynn was entitled neither to the case’s dismissal in advance of a ruling on the DOJ’s motion to dismiss, nor entitled to the reassignment of the trial judge. The court ruled that Flynn’s case did not qualify for an emergency writ of mandamus, which would have leapfrogged Sullivan and ordered the dismissal of the case. A three-judge panel on the D.C. Circuit, headlined by Trump-appointed Circuit Judge Neomi Rao, previously granted the writ of mandamus in a 2-1 decision.

The en banc D.C. Circuit reversed that decision on Monday, finding as follows [emphasis ours]:

Under governing law, the writ of mandamus should issue only if: (1) “the party seeking issuance of the writ [has] no other adequate means to attain the relief he desires”; (2) “the petitioner [satisfies] the burden of showing that his right to issuance of the writ is clear and indisputable”; and (3) “the issuing court, in the exercise of its discretion, [is] satisfied that the writ is appropriate under the circumstances.” Cheney, 542 U.S. at 380–81 (citations, alterations, and internal quotation marks omitted). All three requirements must be satisfied, and the absence of any one compels denial of the writ. “As this case implicates the separation of powers, the Court of Appeals must also ask, as part of this inquiry, whether the District Court’s actions constituted an unwarranted impairment of another branch in the performance of its constitutional duties.”Cheney, 542 U.S. at 390.

According to the D.C. Circuit, Judge Sullivan’s controversial appointment of Gleeson as amicus curiae to present arguments in opposition to the DOJ’s motion to dismiss was not enough to warrant an extraordinary writ of mandamus. The appellate court said that 1) Judge Sullivan may decide to dismiss the case after hearing what Gleeson et al. have to say; and 2) even if Sullivan denied the motion to dismiss, Flynn could then appeal to the D.C. Circuit and argue Gleeson was appointed in error. The appellate court, simply put, declined to force Sullivan’s hand in advance of an actual ruling.

Circuit Judge Rao once again dissented in no uncertain terms. She said the D.C. Circuit majority subjected Flynn to an “inquisition” and wrongly permitted Sullivan’s “unlawful incursions on the Executive Branch.”

The latest order from Sullivan effectively jumpstarts the polarizing criminal case once again. The defense and DOJ will continue to take the position that there is no case or controversy here, and that Rule 48 of the Federal Rules of Criminal Procedure clearly dictates that the case should be dismissed. Gleeson, a retired federal judge and former mob prosecutor, was appointed by Sullivan to argue against the Department of Justice’s motion to dismiss. Sullivan also ordered arguments on why Flynn shouldn’t be held in criminal contempt after twice pleading guilty to lying to the FBI about his contact in late 2016 with Russian Ambassador Sergey Kislyak.

Gleeson argued in a brief a June brief that Flynn has “indeed committed perjury” and “deserves punishment” for it.

Sullivan previously set dates and times for Gleeson, Flynn and DOJ the respond to submissions from aforementioned non-court-appointed (but court-permitted) amici curiae (e.g., Watergate prosecutors, etc.). The parties have been ordered to come up with new deadlines for that and more.

[Image via Aaron P. Bernstein/Getty Images]

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