It was pretty much a question of who would file a petition for a writ of mandamus first: Flynn or the government. Sullivan's antics have been that outrageous. There's nothing surprising in
the petition itself. The relief sought is exactly what would be expected in this case:
Petitioner respectfully requests a Writ of Mandamus ordering the district court to
(1) grant the Government’s Motion to Dismiss with prejudice,
(2) vacate its order appointing an amicus curiae, and
(3) assign the case to another judge for any additional proceedings.
The one thing that surprised me was that Powell didn't point out Sullivan's painfully obvious ignorance concerning the Constitutional definition of Treason. Powell did, of course, several times point to Sullivan's now infamous Treason Tirade as evidence of prejudice and grounds
for removing Sullivan from the case. And rightly so. However, while the Circuit Court will be well aware that, even assuming the original government charges against Flynn were true, nothing remotely resembling Treason occurred, I thought that for the sake of completeness Powell should have expressly point this out. An express description of Sullivan's painful ignorance regarding the facts of the case and the Constitutional definition of Treason could only have strengthened the case for his removal.
On the other hand, Powell's presentation of the injustice done to Flynn by DoJ, by the FBI, and by Team Mueller is moving. So also is her presentation of the unscrupulous and determined efforts of Sullivan to assume the role of prosecutor to punish a defendant he obviously hates for purely political reasons.
By any reasonable standards this petititon should be a slam dunk. However, I'm somewhat disappointed that DoJ has failed to weigh in to date. Hopefully that will happen before the week is out.
UPDATE: I should add another disappointment for me in Powell's petition. She does mention the issue of predication. She does so by quoting the government's motion to dismiss:
the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an ‘absence of any derogatory information.’”
That may seem fine, but from my perspective I would never, ever, want to give the impression of conceding that "the the FBI’s counterintelligence investigation into Mr. Flynn" was EVER a "justifiably predicated investigation." IT WAS NOT. IT NEVER WAS. The entire "predication" of that investigation--as documented in the opening and closing ECs (both presumably either written by or, if not, then approved by Joe Pientka)--rested on two propositions. The predication maintained that it was reasonable to believe that Michael Flynn was an agent for the Russian government because:
FLYNN had ties to various state-affiliated entities of the Russian Federation, as reported by open source information;
and FLYNN traveled to Russia in December 2015, as reported by open source information.
That is laughably inadequate as a basis for launching a full investigation of anyone. Travel to Russia and "ties" to the innumerable "entities" of the Russian Federation that are state-affiliated is simply not probative in any way for the proposition that any given person is a Russian agent. If it were, virtually anyone who has ever travelled to Russia would have a full investigation opened on them. And I'm here to tell you that that is not the way the FBI operates.
I really wish Powell had attacked the entire predication for any investigation of Flynn in those very specific terms. And I'm very disappointed that Barr allowed that motion to dismiss to go forward with such a pusillanimous semi-repudiation of the Flynn investigation.
