The powerful District of Columbia Circuit Court of Appeals apparently takes the legal maxim, "Justice delayed is justice denied" to heart.
On Thursday afternoon, just two days after the lawyer representing Gen. Michael Flynn filed a request for a writ of mandamus with the appellate court, a three-judge panel responded with a per curiam order (one in the name of the court, generally considered unanimous).
The panel is something of a mixed bag.
It consists of Judges Neomi Rao (a Trump appointee), Karen LeCraft Henderson (a George H.W. Bush appointee) and Robert Wilkins (an Obama appointee).
A writ of mandamus is an order from a court that directs an inferior government official to either properly fulfill his official duties, or to correct an abuse of discretion. In this instance Flynn’s lawyer is asking the D.C. Circuit to force District Judge Emmett Sullivan to dismiss the case against Flynn as requested by federal prosecutors.
The order didn’t give Flynn what his lawyer had requested — not yet, anyway. The Petition asked "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."
Instead of responding with the writ of mandamus, the appeals court is giving Sullivan 10 days — until June 1 — to essentially explain his actions and show his hand, so to speak, as to why he’s handling this particular case in the unusual manner that he is.
It’s like an errant schoolboy being sent to the principal’s office to explain why he flushed that lit cherry bomb down the toilet in the boy’s room yesterday.
What Sullivan did in this case was to appoint retired federal Judge John Gleeson to present arguments against dismissing the charges against Flynn, rather than granting the Department of Justice’s request to drop the charges altogether.
George Washington University law professor Jonathan Turley made an interesting observation of the language the D.C. Circuit used in its order.
"Note the interesting language: 'it is ORDERED...that within ten days ... the district judge file a response addressing petitioner’s request...' This is not discretionary language," Turley said.
"Compare: 'The government is invited to respond in its discretion within the same ten-day period.'"
Although the DOJ was "invited" to respond, (as opposed to being ordered as the trial judge was), you can pretty much bet the farm that DOJ lawyers will take the panel up on the invitation. And that, in and of itself, will make for an interesting matchup.
It would pit Judge Sullivan against not only the high-powered law firm of Sidney Powell, but also the weight and authority of the Department of Justice.
It’s akin to pitting the best of the minor leagues against the best of MLB’s American and National Leagues.
Continuing on the "errant schoolboy" theme, the D.C. Circuit gave Sullivan a homework assignment. It asked him to review the Federal Rules of Criminal Procedure as they pertain to motions to dismiss by the government, and also to review a 2016 D.C. Circuit Court decision.
Both Rule 48(a) and United States vs. Fokker Services B.V. were cited by Flynn’s lawyer in support of the petition. Fokker held that the requirement of court approval to exclude time under the Speedy Trial Act did not grant judges the authority “to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges.”
In other words, although Rule 48(a) provides that dismissals of criminal matters by the government shall be granted by "leave of court," wide latitude should be given to the prosecution. The court shouldn’t engage in re-examining the DOJ’s decision to dismiss.
In this particular instance, the reason the DOJ requested a dismissal was pretty clear —Flynn was set up from the beginning.
A Jan. 24, 2017 handwritten note by Bill Priestap, then-FBI counterintelligence chief, made this abundantly clear.
"What’s our goal?" Priestap wrote prior to questioning Flynn. "Truth/Admission or get him to lie, so we can prosecute him or get him fired?"
After more than three years of being run through a hellish legal meatgrinder and millions spent on lawyers, Gen. Michael Flynn may soon be repeating the words issued by former President Gerald R. Ford at his inauguration: "Our long national nightmare is over."
Let’s hope so.
Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter, who can often be found honing his skills at the range. Read Michael Dorstewitz's Reports — More Here.
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