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Judge Sullivan’s weekend has been ruined by the U.S. Court of Appeals for the D.C. Circuit. That is the court that is the boss of him. For many years, leftists could count on this district to further their interests. It was understood as important to their longer term projects. However, Republican presidents sometimes get to appoint members. In this case, the luck of the draw was in favor of justice. There is a Bush 41, Obama, and Trump judge on the assigned panel, and they all agreed that they should consider motions, a series of papers, on the petition for writ of mandamus on behalf of Gen. Michael Flynn.
Honest attorneys in the Department of Justice, under Attorney General Barr’s protection and leadership, threw in the towel on the wrongful prosecution of Flynn, a key part of the attempted Obama faction and security agencies coup against President Trump. That, as a matter of federal law and federal court practice, should have been the end of the matter. But Judge Sullivan hates President Trump and his voters more than he respects his oath and the Constitution, so he continued his disreputable conduct and sought to keep control of Flynn, looking for some way to play for time until, he hoped, Biden would be elected.
Sidney Powell was having none of this, and wrote a petition for writ of mandamus that is a thing of fierce beauty:
Petitioner respectfully requests that this Court order the district court immediately to (1) grant the Justice Department’s Motion to Dismiss; (2) vacate its order appointing amicus curiae; and (3) reassign the case to another district judge as to any further proceedings.
[. . .]
Inflaming public passions against a party, particularly a criminal defendant, and encouraging prosecutors to vastly increase the charges against him, is the very antithesis of calling balls and strikes.
[. . .]
This is an umpire who has decided to steal public attention from the players and focus it on himself. He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field.
[. . .]
Unlike in Fokker, the district judge’s outrage at General Flynn does reveal a deep-seated antagonism. In open court, knowing full well that his words would be broadcast all over the world within minutes, the district judge accused General Flynn of treason—a charge hurtful to any American, but a stake through the heart of one who has risked his life protecting the United States from its foreign enemies. The judge also expressed his personal “disgust” (pointing out he was not hiding it) and accused him of arguably having “sold out” his country. App. 1: 34. Even uttered in a private conversation, such words would be cause for recusal, but to say them to the world does, indeed, evince “deep-seated … antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555.
If the Court grants the principal relief Petitioner seeks, there may not be much by way of further proceedings in the case, but there could be. Petitioner, the Government, and the appearance of justice will best be served by having another judge—one who has not implied that Petitioner is a traitor—conduct any further proceedings in the case.
Sullivan might have succeeded in running out the clock if the appeals court panel had been typical of the circuit. It was not, so, we got this terse order No. 20-5143:
O R D E R
Upon consideration of the emergency petition for a writ of mandamus, it is
ORDERED, on the court’s own motion, that within ten days of the date of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020 (ECF No. 198). See Fed. R. Crim. P. 48(a); United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016). The government is invited to respond in its discretion within the same ten-day period. The Clerk is directed to transmit a copy of this order to the district court.
It is not over yet, but this is as good as Flynn could expect, and does not point towards a drawn-out process. Fed. R. Crim. P. 48(a) refers to the Federal Rules of Criminal Procedure, Rule 48(a):
Rule 48. Dismissal
(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.
“United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016)” tells you that this is an opinion from the very court of appeals that is the boss of Judge Sullivan. You will find this case cited by Sidney Powell in the petition for writ of mandamus. Here is what is likely to be the key passage from that decision, setting the rule by which this case will be decided:
We vacate the district court’s denial of the joint motion to exclude time under the Speedy Trial Act. We hold that the Act confers no authority in a court to withhold exclusion of time pursuant to a DPA based on concerns that the government should bring different charges or should charge different defendants. Congress, in providing for courts to approve the exclusion of time pursuant to a DPA, acted against the backdrop of long-settled understandings about the independence of the Executive with regard to charging decisions. Nothing in the statute’s terms or structure suggests any intention to subvert those constitutionally rooted principles so as to enable the Judiciary to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges.
In vacating the district court order, we have no occasion to disagree (or agree) with that court’s concerns about the government’s charging decisions in this case. Rather, the fundamental point is that those determinations are for the Executive—not the courts—to make. We therefore grant the government’s petition for a writ of mandamus and remand for further proceedings consistent with this opinion.
I do not expect it will be a good weekend, let alone a pleasant week ahead for Judge Sullivan. It did not have to be this way. He could have been the judge he was in overturning Senator Ted Stevens’ wrongful prosecution.