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Trump-Appointed Judge Pens Majority Opinion Forcing Emmet Sullivan to Dismiss Michael Flynn Case


A federal appeals court has directed a lower court judge overseeing the prosecution of former national security advisor Michael Flynn to dismiss the case entirely.

“Upon consideration of the emergency petition for a writ of mandamus, the responses thereto, and the reply, the briefs of amici curiae in support of the parties, and the argument by counsel, it is ORDERED that Flynn’s petition for a writ of mandamus be granted in part,” the U.S. Court of Appeals for the District of Columbia Circuit ruled on Wednesday morning.

As a result, U.S. District Judge Emmet Sullivan is “directed to grant the government’s Rule 48(a) motion to dismiss; and the District Court’s order appointing an amicus is hereby vacated as moot, in accordance with the opinion of the court filed herein this date.”

Earlier this year, Attorney General Bill Barr directed his subordinates to drop the case against President Donald Trump‘s former national security advisor. Judge Sullivan, however, did not automatically acquiesce to that demand. Insead, he cited language in the Federal Rules of Criminal Procedure requiring “leave of court” when a case at the stage of Flynn’s is dismissed. That language is traditionally understood to grant judges some discretion over whether a case should be dropped.

The decision comes as a grant for Flynn’s writ of mandamus request filed in late May. A writ of mandamus is an order which forces an inferior government official (here, Judge Sullivan) to take a certain action.

Per the decision:

Whatever the precise scope of Rule 48’s “leave of court” requirement, this is plainly not the rare case where further judicial inquiry is warranted. To begin with, Flynn agrees with the government’s motion to dismiss, and there has been no allegation that the motion reflects prosecutorial harassment. Additionally, the government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt.

Trump-appointed Circuit Judge Neomi Rao penned the majority opinion. The ruling is only a partial victory for Flynn, however, who also sought to have Judge Sullivan reassigned and taken off of the case. Sullivan previously exhibited arguable bias against the defendant by upbraiding him during a scuppered sentencing hearing by saying that Flynn “sold [his] country out” and asked the prosecution whether he could have been charged with treason.

The judge’s defiance of Barr’s directive was viewed by Flynn and his defenders as more of the same, though Flynn’s defense team largely focused on those sentencing hearing comments from late 2018.

“We deny Flynn’s petition to the extent he seeks reassignment of the district judge,” the opinion continues. “This case does not meet the ‘high bar’ for reassignment, which would be appropriate only if the district judge’s conduct was ‘so extreme as to display clear inability to render fair judgment.’ … [T]he district judge’s conduct did not indicate a clear inability to decide this case fairly. We decline to reassign the case to a new judge simply to grant the government’s Rule 48(a) motion to dismiss.”

Rao’s opinion also vacates Sullivan’s previous order appointing an amicus as moot. The district judge controversially kept the case alive by appointing an outside party to argue for the prosecution of Flynn in lieu of the government’s changing tack. That amicus, or friend of the court, John Gleeson, is now purportedly without authority to weigh in on Flynn’s prosecution per the appeals court’s order.

Circuit Judge Karen L. Henderson, who was appointed to a district court seat by Ronald Reagan and to an appeals court seat by George H. W. Bush, joined Rao on the majority.

Circuit Judge Robert L. Wilkins, who was appointed by Barack Obama, issued a vociferous and hard-charging dissent that is slightly longer than the majority opinion.

Per the dissent’s summary introduction [emphasis in original]:

It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant “leave of court” pursuant to Federal Rule of Criminal Procedure 48(a)without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they compel its rejection.

Read the full opinion below:

D.C. Circuit Court of Appeals Grants Flynn Writ of Mandamus by Law&Crime on Scribd

Editor’s note:  this piece began as a breaking news report and has been updated.

[image via Alex Wroblewski/Getty Images]

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