Wednesday, June 24, 2020


Very, very, big news--per commenter atxnfo.

This is just now being picked up by commenters and news outlets. No time yet to read the opinion but the early accounts say that the DC Court of Appeals by 2-1 approved Flynn's petition for a writ of mandamus.

Per The Hill:

"In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power," Judge Neomi Rao, who was appointed to the circuit court by President Trump, wrote in the majority opinion.
"If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice," Rao added.

The ruling itself was a total no-brainer, only made close by the political foofaraw surrounding the Flynn case. Henderson was never going to allow Sullivan to trample established law, but the in-your-face nature of his arguments obviously convinced Henderson that Sullivan could not be trusted further than he could be thrown--so, no leeway granted. This will end up being a HUGE black eye for Team Mueller, Chris Wray's FBI, and the Fake News Media's Russia Hoax--because there is much more to follow, more evidence to be made public.

As important as anything else, Michael Flynn is now free to speak his mind and tell his story. That, too, will be huge as we head into the campaign season and as the Radical Left--proxies for the Dems--seek to turn the country upside down.

Per Undercover Huber--the victory for Flynn is "only partial." That's a tongue in cheek joke on his part. The "partial" part is that Sullivan wasn't kicked off the case--so Sullivan gets to dismiss it as ordered:

Undercover Huber

The ruling is only “partially” for @GenFlynn, as the appeals court ordered:
—Sullivan to dismiss the case 
—Gleeson’s appointment as “amicus” immediately “vacated”. Bye Felicia! 
—However they declined to grant the request to kick Judge Sullivan off the case immediately

Gleeson and Sullivan get the back of the Court's hand--Sullivan for ignoring "black letter law" and Gleeson essentially for being a jerk (that's a code word on a family oriented blog). The Court noted Gleeson's idiotic brief relied on "news stories, tweets, and other facts outside the record" as part of his "irregular and searching scrutiny" to encourage Sullivan to trespass on "a core aspect of the Executive's charging authority."

UPDATE 1: Jonathan Turley reminds us of an article he wrote back in May. Turley is too polite to say so but the article reveals the corruption of our legal establishment in the context of the Flynn case. Read it in light of what we now know about Gorsuch--first paragraph:

The Los Angeles Times has posted a column by UCLA Law Professor and former U.S. Attorney under Bill Clinton, Harry Litman. The column [] captures just how disconnected legal analysis has become in the Trump era.  Litman in the column admits, to his credit, that the precedent overwhelmingly opposes a denial of motion to dismiss. However, Litman then encourages U.S. District Judge Emmet G. Sullivan to use the hearing to “make trouble” for the Justice Department — a goal disconnected from the inescapable legal precedent (and thus the judicial obligations) presented by the motion.  There is a word for using hearing to gratuitously “make trouble” for the Executive Branch: judicial activism.  I have previously written about the need to dismiss the Flynn case and criticized those who dismiss new evidence of wrongdoing by the prosecutors.

Brett L. Tolman
He’s not wrong

Bernard B. Kerik

CONGRATS @GenFlynn—DC Circuit Court slaps Judge Sullivan – do your job and dismiss, DC Court to John Gleeson - you’re an asshole and out of order!…
9:36 AM · Jun 24, 2020


Maria Bartiromo: So do you think this goes all the way up to the top, to President Obama?
Sidney Powell: Absolutely.

UPDATE 4: Don Surber:

Appellate Judge Neomi Rao, writing for the majority, tore Judge Sullivan a new one. 
She wrote the case is “about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives. 
"On that, both the Constitution and cases are clear: He may not."

 Doesn't get any clearer than that.


  1. You called it, yesterday! I am delighted to be proven wrong. I'm still "not tired of winning."

  2. First good news in a while!

    But...every time we think it ought to be over, someone finds a way to extend this case. Can/will Sullivan appeal to the full court?

    According to the politics he wins such an appeal, right? This has nothing to do with law or reputations - Sullivan will long be celebrated in the society that he values.

  3. Over on Powerline, Johnson makes a comment that Rao is trying to prevent this from going to the en Banc review of the Circuit court. Is it possible that this isnt over?

    1. As "conservative" SCOTUS judges have demonstrated recently, anything goes. However, with the release of the Strzok notes I have to believe that even liberals on the DC Circuit Court will think twice before trying to take this up. They may be afraid of what else Barr may have up his sleeve.

      This is a lesson not to mess with Barr's DoJ.

  4. Sean Davis at The Federalist has a very good article which quotes salient points from the order, which was written by Naomi Rao:

  5. Here is the opinion:

  6. From the order:

    Because this is not the unusual case where a more searching inquiry is justified, and because there is no adequate remedy for the intrusion on “the Executive’s long-settled primacy over charging decisions,” Fokker Servs., 818 F.3d at 743, we grant the petition for mandamus in part and order the district court to grant the government’s Rule 48(a) motion to dismiss the charges against Flynn.

    We deny Flynn’s petition to the extent he seeks reassignment of the district judge. This case does not meet the “high bar” for reassignment, id. at 751, which would be appropriate only if the district judge’s conduct was “so extreme as to display clear inability to render fair judgment,” Liteky v. United States, 510 U.S. 540, 551 (1994). Flynn focuses primarily on comments the district judge made at sentencing, but “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id. at 555; see also In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991) (“[A] trial judge is entitled to form his own
    ; see also United States v. Smith, 55 F.3d 157,
    160 (4th Cir. 1995) (“[T]he duty of the United States Attorney
    [is] not simply to prosecute but to do justice.”) (quotation marks omitted). In the third branch, when a district court oversteps, the mandamus remedy allows the court of appeals to
    prevent encroachment on a coequal department.
    USCA Case #20-5143 Document #1848728 Filed: 06/24/2020 Page 12 of 38
    judgment as to the conduct of a defendant and to take that judgment into account in sentencing.”). In light of these precedents, the 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.

    The dissent is then totally dismantled.

    For the foregoing reasons, we grant Flynn’s petition for a writ of mandamus in part and direct the district court to grant the government’s Rule 48(a) motion to dismiss. In light of that grant, we vacate the district court’s order appointing an amicus as moot. See Great W. Sugar Co. v. Nelson, 442 U.S. 92, 94 (1979).
    So ordered.

    1. Gee, the judge calls Mike Flynn a traitor and that is not evidence of bias? Beam me up Scottie.

      Rob S

    2. A question:

      >> For the foregoing reasons, we grant Flynn’s petition for a writ of mandamus in part and direct the district court to grant the government’s Rule 48(a) motion to dismiss. In light of that grant, we vacate the district court’s order appointing an amicus as moot. See Great W. Sugar Co. v. Nelson, 442 U.S. 92, 94 (1979).
      So ordered. <<

      The court "directs" the district court to Dismiss the charges, but then directly vacates the lower court's amicus appointment, rather than directing the lower court to vacate it's own order.

      Am I putting too much emphasis on the grammar used here? It seems to suggest that while it orders Sullivan to dismiss the charges, it is vacating Sullivan's amicus appointment directly on it's own authority.

      IOW, the amicus order is not in Sullivan's hands anymore: the Appellate Court has vacated it on it's own. And if that is true, then what business does Sullivan have allowing Gleeson to file his amicus brief with the Circuit court, if the Appellate Court has vacated the amicus appointment that gave rise to Gleeson's brief in the first place?

      The distinction I'm drawing is that while Sullivan may have 21 days to comply with the order to dismiss, the wording of the order appears to to suggest that the amicus appointment order IS already vacated by the Appellate Court.

      If true, Sullivan has no business accepting Gleeson's brief.

      AM I reading too much into this?

    3. I think you're basically right. I say "basically" because I can't hold myself out as an expert on this. Another way to put this might be: While Sullivan has 21 days to do what he's been told to do, that DOESN'T mean that during those 21 days he can pretend or continue to act as if no action had been directed his was by the Court of Appeals. Any actions on his part in that interim must be consistent with the order.

    4. Exactly; and the key is the majority opinion states Sullivan has NO BUSINESS appointing an amicus to argue against a motion to dismiss supported by BOTH the defense and the prosecution.

      IOW, Sullivan has no authority to accept an amicus brief prepared by an amicus whose appointment has been vacated by the Appeals Court Mandamus order, and for which there was never proper authority in the first place.

    5. That Sullivan has gotten 21 days, to do what he ought to have done already, is pathetic.
      It's not like he needs time to write an encyclopedia.
      How could writing a simple ruling need to take much time?
      I'd not be shocked, if he (pressed by DS?) blows off the 21 day deadline, and dares the Circuit to (take more time to) remove him from the case.

  7. This case elicited a thought re Justice Stevens: Media-indoctrinated Dems will be outraged that some "right wing" judge working for evil Trump allowed the Russian spy Flynn to escape "justice".
    This is the world Stevens inhabits in D.C. Maybe his contortionist decisions tolerating left-wing gibberish are his way of trying to maintain the Court's perceived legitimacy among both sides of a polarized ill-informed public. I don't know, I'm grasping at straws here...

  8. As badly as Sullivan got slapped down by the majority, it pales in comparison to the beating they Judge Wilkins. The opinion oozes in contempt for Wilkins; they didn't even try to hide it.