If Michael Flynn were a black hip-hop star and Emmet Sullivan a white federal judge, there might be riots in the streets over the case. The tweets would write themselves with nods to the legacy of slavery, Jim Crow, and how the system itself is corrupt. Sullivan is black, and Flynn is Donald Trump’s man, though, so there will be no marches and the tweets will champion the cause of judicial prosecutions.
The government wants to withdraw charges against a criminal defendant, but the judge isn’t having it. That’s the simple truth of the story in the Flynn case, as it has been. The only change is that Judge Sullivan has found an even higher, longer limb to climb on to keep Michael Flynn from being free.
“The panel majority granted the extraordinary writ of mandamus to prevent the district court from receiving adversarial briefing and argument on a pending motion.” That’s the first sentence from Judge Sullivan’s petition. He wants the D.C. Circuit Court of Appeals to reconsider its earlier judgment. It ordered Sullivan to dismiss the charges against Flynn, but still he refuses.
A mandamus order directs a government actor to do his job. The D.C. Circuit Court of Appeals ordered Judge Sullivan to dismiss the charges against Mr. Flynn. Instead of obeying, Sullivan has appealed. The Court of Appeals case was heard by a three-judge panel, as is the standard form, but Sullivan wants another bite at the apple, asking for en banc review. That would allow Sullivan to argue the issue in full again, but instead of the three-judge panel, it would be before all eleven judges on the entire circuit.
Even before this request, Judge Sullivan’s legal maneuvering could have been called extraordinary. Refusing to dismiss a criminal case at the request of the prosecutor – that is extraordinary. Ruling that no external briefs be allowed at the outset of the case, then asking for them and appointing someone to author one when the case isn’t going as the judge seemingly “hoped” – that too is extraordinary. Judge Sullivan asked if, perhaps, Flynn could have been charged with the capital crime of treason at his sentencing. In the world of extraordinary, Judge Sullivan seems to have the market well covered. Will his supervisors do anything about it?
Sullivan argues that the appeals court should not have granted the mandamus order because Flynn didn’t oppose the briefs being introduced against him. That is false according to the defense submission, which states that Flynn objected multiple times. It’s not the only problem Sullivan’s brief has with facts, submitting claims easily disputed by the very record his court established. An embarrassing oversight for Judge Sullivan and his lawyers, Flynn’s brief calls the judge’s filing “rife with errors and misrepresentations.” It’s no easy task to predict how the D.C. Circuit Court of Appeals will handle Sullivan’s request, but perhaps an easy way out would be to declare him ineligible to challenge the previous ruling.
Umpires Are Not Ballplayers
Mr. Flynn’s brief in opposition to Sullivan likens judges to sports referees and their limitations:
“The umpire cannot force the teams to play extra innings after the game is over. He, the players, and the spectators need to go home and turn off the floodlights.”
With nary a sidelong glance at future consequences of such advocacy, many public legal commentators support Judge Sullivan’s machinations. Their arguments, sadly, more resemble a case of wishful thinking infused by a touch of Trump Derangement Syndrome than considered analysis. Liberals abandoning previously stated core principles in the service of politics is troubling to watch. As Flynn’s brief states, “the district court’s delay here has extended this litigation and impaired General Flynn’s freedom for an additional ten weeks so far.”
The last time the appellate court ruled on the matter, they declined to assign a new judge to the case. Flynn’s lawyers asked for that, but the court was reluctant to remove Sullivan altogether. After all, since they ruled for Flynn, all that was left for Sullivan to do was dismiss the case: “We decline to reassign the case to a new judge simply to grant the government’s Rule 48(a) motion to dismiss.” Perhaps Judge Sullivan’s passionate interest in standing in judgment of Michael Flynn will cause them to reconsider.
Read more from Scott D. Cosenza.
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