Michael Flynn’s legal team has filed a report with the DC Circuit Court that lights District Judge Emmet Sullivan for his attempt to prolong the criminal case against Flynn following a motion to dismiss it by the Justice Department, and says that the court should not listen to the arguments again after a panel of three judges ordered Sullivan to grant that motion from the Justice Department.
Lawyers for the former national security adviser argue that the Sullivan court “has kidnapped and extended criminal prosecution for almost three months for its own purposes” and says that the precedent requires judges to refer motions to the government to dismiss when it provides reasons. detailed why he wants to dismiss a case, as the Justice Department did in the Flynn case. The government alleged that the fateful interview from Flynn’s office was “unwarranted” by his investigation.
Sullivan then appointed a third-party “amicus curie” to argue against the granting of the government’s motion and scheduled a hearing to consider whether to grant it in light of the fact that Flynn had previously pleaded guilty to making false statements to the FBI. Flynn then tried to withdraw his guilty plea before the government, before his sentence, finally decided to drop the case.
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“Judge Sullivan’s stubborn disagreement with the government’s decision to dismiss the case does not confer the right to challenge it himself or through his amicus,” said Flynn’s attorneys, including Sidney Powell. “His actions smell of vengeance against General Flynn and judicial overreach that have no place in the US justice system. No precedent even suggests a ‘hearing’ on a substantial government motion to dismiss. None.”
After Sullivan designated the amicus and said he would hear arguments about whether to pass the motion to dismiss, Flynn’s attorneys filed a mandamus order, a higher court order that a lower judge or government official carry out a certain function of their work, with the DC circuit. A panel of three judges sided with Flynn and the Justice Department, issuing the mandamus order. Sullivan then requested a new hearing with the full panel of 11 judges on the court order issue. Such an audience is called “en banc” in legal jargon.
Flynn’s attorneys allege that Sullivan is forgetting his role as a judge and has no justification for prolonging the case.
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“The referee cannot force the teams to play additional innings after the game is over. He, the players and the spectators must go home and turn off the floodlights,” they write.
The report also points to Sullivan’s previous comments on the Flynn case.
“Judge Sullivan’s extraordinary actions stem solely from his disagreement with the government’s decision to dismiss the case against General Flynn,” he says. “Not only did he unfairly accuse General Flynn with an unsubstantiated claim of treason, but he has expressed that General Flynn should be severely punished. Disagreement over an impeachment decision provides no basis for denying the government’s motion.”
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But Sullivan’s legal team argued that judges are allowed to question prosecutors’ “reasoning and motives” in dismissing a case and that what is “extraordinary” here is not that he is requesting a hearing on the impeachment motion, Instead, the circuit court issued the order of mandamus that prevented him from doing so.
“Court decisions are supposed to be based on court record, not speculation about what the future may hold. All the district court has done is ensure a briefing against adversaries and the opportunity to do questions about a pending motion. Outside of the panel’s opinion, those actions were not considered inappropriate, much less an extreme violation of the separation of powers that justifies the mandamus, “says Sullivan’s brief.
He concludes: “Consider both sides of a problem before deciding [beyond a judge’s authority]”It is good judicial practice.”
