Barr Department of Justice Files Motion to Dismiss Charges Against Flynn

Suffice it to say this is unprecedented. The United States, which obtained a guilty plead to charges of lying to the FBI, now moves to dismiss those charges, apparently because it says if a trial occurred, it could not prove the charges.

I do not believe, although I am not certain, that the dismissal is automatic, in that there is still a guilty plead which Judge Sullivan has to deal with. But clearly Trump has avoided the need for a pardon, at least for the time being. The only words to describe the Department of Justice are that it is now a criminal enterprise. My opinion only.

https://talkingpointsmemo.com/news/flynn-brandon-van-grack-qithdrawal
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  • After reviewing the Federal Rules of Criminal Procedure, Rule 48, it appears, unless I am reading the rule erroneously, that the dismissal of charges against Flynn may not occur without consent of the court.

    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.

    (b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:

    (1) presenting a charge to a grand jury;

    (2) filing an information against a defendant; or

    (3) bringing a defendant to trial.

    So whether the charges against Flynn are dismissed is apparently up to the sole discretion of Federal District Court Judge Emmet Sullivan. At least at this level. Should Judge Sullivan grant the motion, Flynn will go free. Should Judge Sullivan deny the government's motion, one would assume that Judge Sullivan's denial would be appealed to the United States Court of Appeals for the District of Columbia Circuit.
  • It appears that District Court Judge Emmet Sullivan, the federal court judge overseeing the Michael Flynn case, will not immediately acquiesce to the motion to dismiss filed by the Department of Justice. In a minute order (usually but not always a brief order notifying the parties of scheduling matters) filed by the Judge today, he said that "[A]t the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs". Amicus briefs, also known as "friend of the Court" briefs, are legal documents filed by third parties wishing to comment on a pending matter. They are usually, but not always, filed in appellate matters.

    Allowing the filing of amicus briefs in favor and in opposition to the DoJ motion gives former prosecutors, such as Mary McCord, whose interview with the DoJ in 2017 provided the factual foundation for the DoJ motion, the opportunity to voice her own opinion as to whether the DoJ acted properly regarding its use of her interview, and whether her statements in that interview were properly interpreted, or "twisted", as she wrote in an Op Ed over the weekend.

    Who will be permitted to file amicus briefs, when the briefs will be filed, and the scope of the subject matter of the briefs, will be determined by Judge Sullivan "at the appropriate time".

    Separately today General Flynn filed his consent to the DoJ motion, which had been expected.

    https://www.politico.com/news/2020/05/12/judge-slows-effort-drop-flynn-case-252725

  • READ the full text of the minute order below:

    MINUTE ORDER as to MICHAEL T. FLYNN. Given the current posture of this case, the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs pursuant to Local Civil Rule 7(o). There is no analogous rule in the Local Criminal Rules, but “[the Local Civil] Rules govern all proceedings in the United States District Court for the District of Columbia.” LCvR 1.1. “An amicus curiae, defined as friend of the court,… does not represent the parties but participates only for the benefit of the Court.” United States v. Microsoft Corp., No. 98-cv-1232(CKK), 2002 WL 319366, at *2 (D.D.C. Feb. 28, 2002) (internal quotation marks omitted). Thus, “[i]t is solely within the court’s discretion to determine the fact, extent, and manner of the participation.” Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008) (citation and internal quotation marks omitted). “‘An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.'” Id. at 137 (quoting Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997)); see also LCvR 7(o). Although there is no corollary in the Local Criminal Rules to Local Civil Rule 7(o), a person or entity may seek leave of the Court to file an amicus curiae brief in a criminal case. See Min. Order, United States v. Simmons, No. 18-cr-344 (EGS) (D.D.C. May 5, 2020); cf. United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016) (appointing amicus curiae in a criminal case). As Judge Amy Berman Jackson has observed, “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.” Min. Order, United States v. Stone, No. 19-cr-18 (ABJ) (D.D.C. Feb. 28, 2019). Accordingly, at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs. Signed by Judge Emmet G. Sullivan on 5/12/2020. (lcegs3) (Entered: 05/12/2020)
  • Apparently, Flynn is getting a little bit impatient. He seems unhappy that Judge Sullivan has assigned a former federal judge (the same guy that when he was a prosecutor convicted the "Teflon Don," John Gotti and put Gotti away for a long, long. long time) to take the opposite side of the Department of Justice motion to dismiss the Flynn case.

    He may also be a bit upset that Judge Sullivan asked his appointed former federal judge to look into whether Flynn, given his machinations after entering his guilty plea, at least twice, and in doing so admitting at least twice that he had lied all over the place and was guilty of the lies with which he had been accused, had now asserted that he had not lied, and was not guilty as charged and admitted. Apparently Judge Sullivan finds no humor in a criminal defendant admitting he lied and then denying he lied, all in the same case.

    So Judge Sullivan, after assigning the former federal judge as opposing counsel so to speak on the DoJ motion to dismiss, also asked the former federal judge to decide whether Flynn had committed criminal contempt of court and possibly perjury for denying he lied after admitting he lied.

    And time flies when you are having fun, especially when the former federal judge filed a notice in the Flynn case before Judge Sullivan letting Sullivan know that the former federal judge would be ready to file his opening brief in opposition to the DoJ motion to dismiss on June 10, 2020, a mere three weeks and a day from today.

    This apparently pissed off Flynn big time, so Flynn has filed a Petition before the Court of Appeals for the District of Columbia Circuit, asking the Court of Appeals to slap Judge Sullivan across the snout big time, take the case totally away from Judge Sullivan, and to grant, on the apparent authority of the Court of Appeals, the DoJ motion to dismiss.

    Flynn's petition will be assigned either to the current motions panel of the Court of Appeals, made up of three appellate judges, or it will be assigned, at random, to three appellate judges picked from a device very similar to a lottery ball cage. Since there are appellate judges appointed by presidents including president Clinton, president Bush 43, president Obama, and "president" Trump, all I can say is Flynn better hope that at least two of the appellate judges assigned to hear his petition were appointed by Republicans.

    Article from Politico is here:

    https://www.politico.com/news/2020/05/19/michael-flynn-lawyers-federal-judge-268280
  • Judge Sullivan is still alive and kicking, and keeping everything moving while he waits for the Court of Appeals. As of this afternoon, the Court of Appeals docket does not reveal whether a panel of judges has been appointed for Flynn's Petition for Writ of Mandamus.

    But Judge Sullivan has set a scheduling order for briefing by Judge Gleeson, acting as amicus curiae, and responsive briefing by the DoJ and Flynn, as well as for the filing of amicus briefs by third parties, which will or will not be filed depending on whether Judge Sullivan believes additional amicus briefs are relevant and proper.

    Judge Gleeson must file his opening brief as amicus curiae not later than 12:00 PM Eastern Time on June 10, 2020. Any third party seeking to file an amicus brief must seek that leave of court to file, with the amicus brief attached, by noon on June 10. Flynn and the DoJ must file their opposition to the initial amicus brief, as well as to the requests to file as amicus by third parties, not later than June 17. Judge Gleeson must file his reply to the Flynn and DoJ oppositions not later than noon on June 24. Should Judge Sullivan grant leave to any third party to file as amicus, Judge Gleeson, Flynn, and the DoJ must respond to those briefs not later than noon on June 24.

    I am pretty sure I remembered the schedule correctly. What I am sure of is, absent any intervening order from the Court of Appeals, oral arguments by Judge Gleeson, Flynn, the DoJ, and any third party amicus is currently scheduled for July 16, 2020, at 11:00 AM.

    Time flies when you are having fun. Start writing your briefs, gentlemen and ladies (Flynn's attorney, Sidney Powell, is a woman, despite her first name). Time's a wastin'!
  • @SaremChuuk, it will be up to the US Supreme court. And it will be dismissed.

  • On initial reading, the order entered today by the DC Circuit Court of Appeals appeared to direct Judge Sullivan to respond to the DoJ's motion to dismiss the Flynn case. Upon a closer reading, that does not appear to be what the Court of Appeals actually ordered.

    Remember the timeline. A couple of weeks ago the DoJ filed a motion to dismiss Flynn's case pursuant to Rules of Criminal Procedure Rule 48(a), which allows the government to seek dismissal of any criminal case with leave of court, meaning the dismissal will occur if, and only if, the trial judge agrees to the requested dismissal. Rule 48(a) appears to give the trial judge absolute discretion to deny the motion to dismiss.

    Judge Sullivan, the trial judge, did not directly act on the motion to dismiss. Rather, he appointed a former Federal Judge, now in private practice by the name of John Gleeson, to act as amicus curiae, or "friend of the court," to in effect take the part of the former prosecutors, and to appear in opposition to the DoJ motion to dismiss.

    As a result of the appointment of former judge Gleeson as amicus curiae, the Defendant, Flynn, filed an emergency Petition for Writ of Mandamus before the DC Circuit Court of Appeals, asking the Circuit Court to in effect take over the case, and order Judge Sullivan to grant the motion to dismiss. They also directly asked the Court of Appeals to take the case away from Judge Sullivan because of what Flynn's counsel calls absolute bias rendering Judge Sullivan incapable of acting as a Judge in the Flynn case.

    When I first read the order from the DC Circuit today, I thought the DC Circuit was ordering Judge Sullivan to rule on the DoJ motion to dismiss within ten days. Upon further reading, however, I do not believe that is what was ordered. I think the DC Circuit Court of Appeals ordered Judge Sullivan to file a response to Flynn's Emergency Petition for Writ of Mandamus before the Court of Appeals within ten days.

    The Order of the DC Circuit follows:

    BEFORE:Henderson, Wilkins, and Rao, Circuit Judges

    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., 818F.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.Per Curiam

    FOR THE COURT:Mark J. Langer, Clerk BY:/s/Laura Chipley Deputy Clerk

    I originally thought that by the order quoted above, the Court of Appeals had voided Judge Sullivan's appointment of John Gleeson as amicus curiae. That did not happen. It appears that Judge Sullivan's Scheduling Order, which I wrote about yesterday, will remain in effect.

    What the Court of Appeals appears to want is for Judge Sullivan to tell them why they should deny Flynn's Emergency Petition for Writ of Mandamus and send the case back to Judge Sullivan. Once Judge Sullivan has responded to Flynn's Emergency Petition for Writ of Mandamus, the Court of Appeal will either allow the case to return to Judge Sullivan, or it will take it out of his hands, and decide the DoJ motion to dismiss itself. Fasten your seat belts, ladies and gentlemen, the ride is about to get a little bumpy!
  • For those who may be curious, the three judges of the Court of Appeals who are assigned to this case and who issued the order quoted above are:

    Judge Karen LeCraft Henderson, the most senior of the three judges, who was appointed to the Court of Appeals over 30 years ago by president George Herbert Walker Bush (Bush 41);

    Judge Robert L. Wilkins, who was appointed to the Court of Appeals by president Obama;

    and Judge Naomi Rao, who was appointed to the Court of Appeals last year by president Trump.

    It is almost a certainty that whatever Judge Henderson decides, the three judge panel will agree with Judge Henderson on a split decision, 2-1.
  • For those who may have an interest in the legal basis upon which the Court of Appeals may decide to grant or deny Flynn's Emergency Petition for Writ of Mandamus, in my view it will lie in a couple of sentences in United States v. Fokker Srvcs., B.V., 818 F.3d 733 (D.C. Cir. 2016), which establishes the roles of the Executive (prosecutorial) Branch and the Judicial (adjudicatory) Branch of government. Fokker is a case from the same Circuit, and thus no doubt will be considered controlling.

    Fokker contains language which is extremely supportive of Flynn's point of view and argument in his Petition. Flynn relies extensively on Fokker in his motion, and it may lead to a decision in his favor. After all, two of the three judges were appointed by Republicans, and are therefore predisposed to an expansive view of Executive power.

    One short portion of the opinion, however, directly addresses the relative roles of the Executive and Judiciary in criminal cases, and that portion may bring some solace to those who would have judge Sullivan prevail before the Court of Appeals. As Flynn's Emergency Petition states, quoting from the Fokker opinion:

    Ordering the district court to grant the motion, this Court offered a textbook discourse on the allocation of authority between the district court and the Government in criminal cases, with proper emphasis on the separation of powers that necessarily constrains the court’s authority:

    The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive's charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences. The courts instead take the prosecution's charging decisions largely as a given, and assume a more active role in administering adjudication of a defendant's guilt and determining the appropriate sentence. Fokker Servs.,818 F.3d at 737 (emphasis added).

    Flynn relies on this language and argues very forcefully that the DoJ motion to dismiss is a "charging decision". As such, the decision lies solely under the control of the Executive Branch. But in the quoted language, the Court of Appeals appears to distinguish between "charging" decisions, and "administering adjudication of a defendant's guilt and determining the appropriate sentence." According to Fokker, deciding guilt and deciding the appropriate sentence appear to clearly be Judicial functions.

    In Flynn's case, the adjudication of guilt has already occurred. That phase was complete with Flynn's plea of guilty in December, 2017, or at the latest when he reconfirmed his guilty plea before Judge Sullivan in 2019. There is no doubt that Judge Sullivan has adjudicated Flynn's guilt. There is no doubt that Flynn is now guilty as charged of the crimes against him.

    The other function on which the Judiciary assumes "a more active role" is "determining the appropriate sentence." Since Flynn's guilt has already been adjudicated, what function was left when the DoJ filed it's motion to dismiss? The only thing left to do is to determine the appropriate sentence. And if Fokker means anything, that is a judicial function.

    Flynn's Emergency Petition for Writ of Mandamus presumes that in this case, the DoJ motion to dismiss is actually a "charging decision", despite the fact that the parties are beyond the adjudication phase and despite the fact that the only part of this case which has yet to occur is "determining the appropriate sentence." Whether on the facts presented it can be successfully argued that the Court of Appeals should backtrack to before the adjudication of guilt in this case, allegedly due to prosecutorial misconduct or a failure of materiality, and pretend that the case has not been adjudicated may determine whether Flynn goes free or faces the determination of "the appropriate sentence."
  • Judge Sullivan has hired himself a pretty high-powered attorney, Beth Wilkinson, to write his brief and argue his position before the Court of Appeals. According to an article in Law.com:

    Wilkinson has long been in the spotlight in Washington legal circles and beyond as a successful defense-side trial lawyer advocating for major U.S. companies. Her more notable advocacy for individual clients including representing Brett Kavanaugh during his confirmation hearing for the U.S. Supreme Court.

    https://www.law.com/nationallawjournal/2020/05/23/flynn-judge-emmet-sullivan-hires-veteran-trial-lawyer-beth-wilkinson/?slreturn=20200424141621
  • To be fair to Gen. Flynn, his Emergency Petition argues that motions to dismiss have been granted after findings of guilt, such as the dismissal of charges against Senator Ted Stevens of Alaska after a jury had found Senator Stevens guilty on seven counts of making criminal misstatements. The Judge in that case was the same judge, Emmet Sullivan.

    Two points can be made which distinguish the Stevens case from Flynn's prosecution and plea. First, in the Stevens case, the Department of Justice provided Judge Sullivan with evidence which had been intentionally withheld from Senator Stevens defense team, in what is called a Brady violation. The Brady case requires federal prosecutors to provide all evidence to the defense, even evidence which might exonerate the accused. In Stevens case, Judge Sullivan found that if the evidence had been introduced, it might have resulted in the acquittal of the Senator. The failure to produce the evidence constituted a gross violation of Senator Stevens' due process rights, requiring a reversal. Thus dismissal was proper.

    What is the difference here? Flynn argues that his lies were not material, meaning that they did not relate to a crime for which he was under investigation. The problem with the lack of materiality argument is that the question of materiality has already been adjudicated. In a prior motion by Flynn to withdraw his plea of guilty, he made the argument that his lies were not material, and Judge Sullivan found that they were. Judge Sullivan's finding of materiality can only be reversed upon a proper appeal after sentencing, not by Emergency Petition for Mandamus.

    Second, Flynn argues that recently disclosed documents by the Department of Justice establish the same type of Brady violation as occurred with Senator Stevens. On that basis, he supports the DoJ motion to dismiss. But whether a Brady violation has occurred in this case must be adjudicated by Judge Sullivan, just like he adjudicated the submission by the DoJ in the Stevens' case. If he had not found a Brady violation, he would not have granted the DoJ motion in the Stevens case.

    By seeking an Emergency Petition for Writ of Mandamus, Flynn is actually asking the Court of Appeals to make the determination that a Brady violation occurred. While the Court of Appeals could arguably take that issue away from Judge Sullivan, it would not be proper to do so. Whether the recently disclosed information is relevant and admissible is a determination for the trial judge to make in the first instance. And it is also up to the trial judge to determine whether a Brady violation occurred where Flynn admitted his lies at his initial interview.

    So this is another factor which makes these proceedings very, very, interesting.
  • Amazing what one can discover if one pays attention. In my post three posts above, I argued that Flynn's Petition for Writ of Mandamus may be decided by the Court of Appeals view of its prior case in United States v. Fokker Srvcs., B.V., 818 F.3d 733 (D.C. Cir. 2016). I made that contention based on Flynn's own reliance, in his Petition, on Fokker.

    I just read a Brief of Amicus Curiae filed by 24 former US District Court judges in support of Judge Sullivan. And it educated me, once again, about how easy it is to make an argument, any argument, if one simply avoids cases which stand in opposition to that argument. Put another way, it is much easier to rely on Fokker if you ignore cases, from the same court, which hold the opposite.

    In the Amicus brief I just read, the Amici cited to the case from the District of Columbia Circuit Court of Appeals entitled United States v. Robert L. Ammidown, 497 F.2d 615 (D.C. Cir. 1974). I had not recalled seeing this case referred to in Flynn's Petition, and it was not until I read the Brief of Amicus Curiae filed by the former District Court judges that I understood why I did not recall seeing it. The District Court judges' brief pointed out that Flynn's Petition ignored completely the Ammidown case! Flynn's attorneys did not cite to it, or attempt to distinguish it in any way, they just left the Ammidown case out of the Petition for Writ of Mandamus completely!

    Clearly, the Court of Appeals will have to address the holding in Ammidown, and there may be reasons why this panel of Judges may attempt to distinguish Ammidown, but one thing is certain. They will not take kindly to Flynn's attorneys ignoring prior precedent from the District of Columbia Circuit Court of Appeals which appears on its face to contradict Flynn's position.

    Judge Sullivan is required to file his brief in opposition to Flynn's position by close of business today. His counsel will, I feel certain, make the Ammidown case an important part of her brief in opposition to Flynn's Petition. Stay tuned!
  • Briefing is almost complete in the Flynn matter pending before the DC Circuit Court of Appeals. Judge Sullivan and the DoJ filed their responses to Flynn's Petition on June 1, as ordered. Numerous Briefs of Amici Curiae have been approved for filing and were ordered filed today. These Amicus briefs include arguments from the Senate, the House of Representatives, from 24 former Federal District Court Judges, and from attorneys from both sides of the political spectrum.

    Flynn and Judge Sullivan and the DoJ are ordered to file any reply and/or response briefs by June 10. The Court of Appeals will hear arguments from the parties (Flynn, Judge Sullivan, and the DoJ) on Friday, June 10 at 9:30 AM EDT.

    Following is the Per Curiam order of the Court:

    PER CURIAM ORDER [1845434] filed granting motions to participate as amicus curiae [1845091-2] [1845054-2] [1844805-2] [1844374-2] [1843955-2]. The Clerk is directed to file the lodged briefs [1845119-2] [1845136-2] [1844410-2] [1844853-2] [1844446-2]. Directing that any further motions or notices to participate as amicus curiae and associated briefs will be considered timely if submitted by Friday, June 5, 2020. Such briefs should be no more than 3900 words in length. Directing that any reply by Petitioner and any response by either Respondent is due by 5:00 p.m. on Wednesday, June 10, 2020. Scheduling oral argument on Friday, June 12, 2020, at 9:30 a.m. Before Judges: Henderson, Wilkins and Rao. [20-5143] [Entered: 06/02/2020 06:18 PM]
  • this is a run away train for Republican, we should be thankful for all the blessings. Covid19, economy, and now the Racist act. the White Nationalist are put to social justice by all these events.
  • While everyone (who has any interest in this matter) waits for the oral arguments before the DC Circuit Court of Appeals on Friday, it might be helpful to remember that Judge Sullivan has his own scheduling order in place in the District Court over which he presides.

    As some of you might recall, Judge Sullivan appointed John Gleeson, a former federal prosecutor and former District Court Judge as Amicus Curiae to the Court, and asked him to file a brief setting forth his view, as Amicus Curiae, regarding the obligations of Judge Sullivan as far as the motion to dismiss of the DoJ is concerned. That brief was due today, and it has been filed.

    Judge Gleeson has concluded that Judge Sullivan has an obligation to deny the DoJ motion to dismiss, and to proceed to sentencing Flynn. This conclusion is based on Judge Sullivan's prior holdings in the case, which are, in legal talk, the "law of the case." Amicus Gleeson has concluded that the DoJ motion to dismiss is contrary to the law of the case, and should be denied on that basis. I haven't read the brief, so there may be other grounds for denying the motion, but the "law of the case" argument no doubt will get a lot of attention at the oral arguments before the DC Circuit Court of Appeals in a couple of days.

    Following is a brief article on the Brief of Amicus Curiae filed today in the District Court. The article also includes the brief, which can be read in its entirety, for those who are interested:

    https://talkingpointsmemo.com/news/michael-flynn-john-gleeson-amicus-filing-justice-department
  • With the oral arguments before the DC Circuit Court of Appeals set for tomorrow morning, I thought I would share the view of Matt Miller, a legal analyst for MSNBC, and a former spokesperson for the US Department of Justice when Eric Holder was the Attorney General.

    Mr. Miller opined that two of the panel of judges who are assigned to the Flynn matter in the Court of Appeals (Henderson and Rao) are strong supporters of Trump legal positions, and for that reason his view is that the Court of Appeals may rule in favor of Flynn, and order the Flynn case dismissed.

    He also expressed the opinion that if that happened, Judge Sullivan, through his counsel Beth Wilkinson (remember her, she represented Justice Kavanaugh in his confirmation hearings), might seek review by the full Circuit Court of Appeals (en banc). If that view were to play out, given the time involved in rendering an opinion by the current panel, and requesting review by the full Court, and further briefing, etc., etc., it might be entirely possible that a decision by the full Court, if it took up the matter, might not occur until around the time of the election, or possibly later.

    Which might force Trump to do what he seems to be avoiding so far, that is granting Flynn a pardon. Interesting. But the first step in the next phase of this process is oral arguments tomorrow.
  • Tomorrow's oral argument before the DC Circuit Court of Appeals is about Federal Rules of Criminal Procedure Rule 48(a), and the meaning of the phrase "leave of court" placed in the rule in the middle 1940's. While the Court of Appeals will wrestle with weighty constitutional issues of "separation of powers," and the power of the Executive and the power of the Judiciary, all of the arguments will, to a great degree, depend on what the Court of Appeals decides is meant by the phrase "leave of court" in Rule 48(a). Does that phrase have very little meaning, in effect denying the trial judge the right to decide against the motion to dismiss? Or does the phrase have significant meaning, entitling the judge to deny the motion to dismiss and proceed with sentencing if he feels he is being made a fool of? How much, if any power does Judge Sullivan have at this stage of the proceeding?

    And just in time for the Brief of Amicus Curiae filed by Judge Gleeson, a Harvard Law School fellow and lecturer Thomas Frampton decided to research Rule 48(a) and try to find out what the phrase was actually intended to mean when it was included in Rule 48(a). Was it only to give the court discretion to deny the motion if it was opposed by the Defendant, or was it to give the court discretion to deny the motion if the court felt that the motion was being brought as a political favor.

    This is a wonderful story, with the article Frampton published in the Stanford Law Review today about the history of Rule 48(a) finding a champion in the brief of John Gleeson as Amicus appointed by Judge Sullivan citing to Frampton's article numerous times. This write up in the Lawfare online publication is well worth reading, if you are into legal stuff!

    https://www.lawfareblog.com/shoddy-history-behind-key-precedent-flynn-case
  • The oral arguments before the DC Circuit Court of Appeals wrapped up about one hour and 45 minutes ago, at 11:15 AM EDT. Predictably, Judges Henderson and Rao were, for those who heard the arguments, more disposed to the arguments of the DoJ. Both are appointees of Republican presidents and would be more disposed to extensive executive authority (Henderson was appointed by George H.W. Bush, and Rao was appointed by president Trump).

    But apparently, all three judges were skeptical of Flynn's Emergency Petition for Writ of Mandamus. Again, if those who heard the arguments are correct, all three judges questioned why Flynn did not let the matter proceed to its conclusion in the District Court, in order to determine how Judge Sullivan will ultimately rule on the Motion to Dismiss, and so the Court of Appeals would have a full record of the case to examine.

    The Court of Appeals will render its decision in due course. Given the national attention this case is receiving, it should not be too long. I would guess a decision would come down by the end of June.

    https://talkingpointsmemo.com/live-blog/flynn-case-goes-before-court-of-appeals
  • At one point in the argument, if the notes of Talking Points Memo reporters are correct, the attorney for the DoJ, Mr. Wall, sort of let the cat out of the bag. Responding to a question from Judge Henderson about how letting the process play out before coming to the Court of Appeals, Wall responded:

    "Wall described to Henderson the damage that allowing Sullivan to rule on the motion to dismiss would inflict on the DOJ.

    You’ll have a proceeding forcing us to explain ourself,” Wall said. “The district court has left itself room not just for documents of that kind or witnesses, but that is going to intrude on our deliberative process.”

    He added that the “spectacle” would end up 'impugning the motives of the Attorney General of the United States.'"

    Oh, boo hoo, cry me a river.
  • In what can only be described as a surprise decision, the DC Circuit Court of Appeals today ordered Judge Sullivan to grant the DoJ Motion to Dismiss the case against Michael Flynn. I have not seen the opinion, written by Trump appointee Naomi Rao, but unless this decision is appealed, either to the Circuit Court en banc, or to the Supreme Court, this marks the end of the Flynn saga with no conviction, despite two guilty pleas.

    I will provide a link to the opinion shortly.

    https://www.cnn.com/2020/06/24/politics/michael-flynn-dismiss/index.html
  • Here is the link to the DC Circuit Court of Appeals decision ordering Judge Sullivan to dismiss the case against Flynn. I haven't read it yet, and will comment briefly when I do.

    https://drive.google.com/file/d/1DJJihj6xrfAH0NDMMBYMKHpgIaHcShhg/view
  • In deciding to order Judge Sullivan to dismiss the case against Flynn without any sentence, the Court of Appeals made what appears to me to be one particular assumption. It appears that the Court of Appeals assumed that the decision to seek dismissal was a "charging decision," and thus is controlled by the DC Circuit's decision in United States v. Fokker Srvcs., B.V., 818 F.3d 733 (D.C. Cir. 2016), which establishes the roles of the Executive (prosecutorial) Branch and the Judicial (adjudicatory) Branch of government. It is also clear from the decision that the majority (the decision was 2-1 in favor of ordering the dismissal) assumed that not all of the language from Fokker was relevant to this determination.

    As I pointed out above, certain language from Fokker could lead one to believe that since this case had proceeded past the guilt phase and was awaiting only sentencing, the decision by the DoJ to dismiss was no longer a "charging decision." As I pointed out above, in its discussion of "charging decisions" Fokker stated:

    "The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive's charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences. The courts instead take the prosecution's charging decisions largely as a given, and assume a more active role in administering adjudication of a defendant's guilt and determining the appropriate sentence. Fokker Servs., 818 F.3d at 737 (emphasis added).

    By conferring authority on Courts to "determin[e] the appropriate sentence" the Court in Fokker clearly indicated that sentencing is a Judicial function, unlike "charging decisions." It is clear that the Flynn panel chose to ignore this language.

    The opinion also relied on a legal trick to avoid the problem raised by the language from Fokker which leaves sentencing matters to the Judiciary. In footnote 1, the panel addressed Judge Sullivan's argument that he should have discretion to deny the motion to dismiss because the matter had proceeded past the adjudication of guilt and to the sentencing phase:

    1 In response to the petition, the district judge argues greater judicial scrutiny is warranted when a Rule 48(a) motion is filed after a guilty plea because formal judicial action has already been taken. Yet this
    claim conflicts with black letter law: “Rule 48(a) continues to apply even after conviction and sentencing while the case is on direct appeal, and the same standard applies to a government request for dismissal at that stage as applies if the request came prior to trial.” 3B WRIGHT & MILLER, FED. PRAC. & PROC. CRIM.
    § 802 (4th ed. 2013)
    Opinion, page 6.

    The trick is to refer to the citation authority as "black letter law." There is such a thing as "black letter law" but Wright and Miller is not it. Wright and Miller is a treatise.

    Black Letter Law refers to the basic standard elements or principles of law, which are generally known and free from doubt or dispute. It describes the basic principles of law that are accepted by a majority of judges in most states.

    Most lawyers would restrict the use of that phrase to primary legal sources, not secondary legal sources. Primary sources of law are described as:

    Primary sources of law are legislative and case law. They come from official bodies. They include treaties, decisions of courts and tribunals, statutes, regulations.

    Secondary sources of law, on the other hand, are described as:

    Secondary sources of law are background resources. They explain, interpret and analyze. They include encyclopedias, law reviews, treatises, restatements. Secondary sources are a good way to start research and often have citations to primary sources.

    https://researchguides.library.tufts.edu/c.php?g=248934&p=1657934

    The Court of Appeal avoids the problem of Judge Sullivan's distinction of pre- and post-guilty plea scrutiny by citing to a treatise, rather than a specific case to prove that a post-plea motion to dismiss remains a charging decision. While Wright & Miller may in fact cite to primary legal sources to establish that “Rule 48(a) continues to apply even after conviction and sentencing while the case is on direct appeal, and the same standard applies to a government request for dismissal at that stage as applies if the request came prior to trial”, the primary sources relied upon by Wright & Miller in their treatise may in fact establish that Judge Sullivan does have the authority to exercise greater scrutiny. We don't know, because other than the bare quote from Wright & Miller we have none of the primary legal sources that Wright & Miller rely on.

    And the less observant might also miss the trick in the Wright & Miller quote relied on by the panel. Wright & Miller says that motions to dismiss are charging decisions, even if brought after conviction, and it goes on to say: "while the case is on direct appeal."

    It is more than likely that the cases relied upon by Wright & Miller involved motions to dismiss brought while the underlying matter "was on direct appeal," a situation which clearly does not exist here.

    What will Judge Sullivan do? He has three choices. Dismiss the case, and be done with it; seek review of the 2-1 majority opinion by an en banc panel of the full DC Circuit Court; or appeal the decision to the US Supreme Court.

    He may have already granted the Motion to Dismiss as I write. But if he doesn't grant it by Monday of next week, my guess is he will appeal this decision.
  • I just learned (none of us are too old to learn something new) that any judge on the DC Circuit Court of Appeals (there are currently 11 judges, seven appointed by Democratic presidents, and four (soon to be five) appointed by Republican presidents) can alone petition the full court to rehear the just decided case en banc. It takes a majority of the judges currently on the Court of Appeals to agree to hear the case en banc.

    So Judge Sullivan actually has four options. He can follow the order of the Court of Appeals and dismiss the case, ending it; he can petition the Court of Appeals to re-hear the case en banc; or any individual judge, even Judge Wilkins, the dissenting member of the panel, can petition the full court for rehearing en banc; or Judge Sullivan can petition the Supreme Court to grant certiorari and hear the case.

    For those who may be interested, the opinions of legal "experts" fall clearly along political lines. At present, the conservatives have held their powder dry. No published comment from the Federalist Society or the Heritage Foundation that I have found. Among legal scholars, including professors from at least three major law schools, and former solicitors general, there is fairly uniform condemnation of the decision and its reasoning.

    FOX News is thrilled, and the other cable networks are predictably uniform in condemnation.

    My opinion is predictable. I was certain this could happen. Judges can decide whatever they want, correct or not, all the way to the Supreme Court. And the Supreme Court can make clearly wrong decisions that only the Congress can change. Consider Korematsu, for instance, or the Dred Scott decision. Or if you are in favor of segregation, you can believe that Brown v. Board of Education was wrongly decided.
  • The trial judge in the Flynn criminal case, Emmet Sullivan, today filed his Petition for Rehearing En Banc before the DC Circuit Court of Appeals. This should surprise no one, given the general view of the legal profession that the original decision of the appellate panel was in error and wrongly decided.

    In order for the petition to be heard by the full court, an actual majority of all active judges not otherwise disqualified must vote in favor of granting the petition for rehearing. Currently there are 11 active judges of the DC Circuit. Four were appointed by president Obama, three were appointed by president Clinton, two were appointed by president George H.W. Bush, and three were appointed by president Trump.

    https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit

    In order for the petition for rehearing to be granted, and for rehearing to occur, six of the eleven judges must vote in favor. It can be presumed that the majority who decided Flynn's original Emergency Petition for Writ of Mandamus, Judges Henderson and Rao, appointed by Bush and Trump, respectively, will vote against a rehearing en banc. It can also be presumed that the dissenting judge, Judge Wilkins, will vote in favor of rehearing. Thus, five more judges will have to vote in favor of rehearing in order for the en banc hearing to occur.

    Here is Judge Sullivan's Petition for Rehearing En Banc:

    https://assets.documentcloud.org/documents/6986026/Flynn-en-Banc-Petition-as-Filed.pdf
  • And now....

    Today, the DC Circuit Court of Appeals, in response to Judge Sullivan's Petition for Rehearing En Banc, has issued an order directing Flynn to file a Response to the Petition for Rehearing within ten days (on or before July 20, or July 21, depending on how they count), and inviting the Justice Department, if it so chooses, to file a Response by the same date. It further ordered that Judge Sullivan should not file a Reply to Flynn's Response, or the Response of the DoJ, should it file one, absent further order of the Court of Appeals.

    It also ordered that the Writ of Mandamus ordered by the three judge panel on June 24 be suspended until further order of the full Court of Appeals. While nothing is certain, it appears likely that at least six members of the Court are seriously considering hearing the matter en banc.

    Stay tuned.....

    https://drive.google.com/file/d/1ZEaXqwK3EGYU8I76tyyXxGyyqgzr35pB/view
  • I can hardly stand the excitement :)
  • The Barr guy deserve to be pitch slap to the moon and back with no day off, no breaks, lunch and dinner
  • As expected, General Flynn has filed his opposition to Judge Sullivan's Petition for Rehearing En Banc. It is, for the most part (IMHO) hyperbole, but one argument does stand out. Flynn argues that Judge Sullivan, despite the fact that the DC Circuit opinion directs an order to the Judge to act, does not have the standing to seek a Rehearing. Flynn argues that only an aggrieved party has standing to seek a rehearing of a Circuit Court decision, and since Judge Sullivan is not a party (although he is the subject of the mandamus order), he is foreclosed from seeking a rehearing.

    I have no idea whether this is a good argument, or whether more than five of the current active members of the Court of Appeals will view that argument as dispositive of the Motion for Rehearing En Banc. My instincts tell me, however, that the full Court will hear Judge Sullivan's Petition, and that it will decide to do so within the next ten days or so, absent a request for a response from Judge Sullivan.

    Here is a link to the Talking Points Memo story on Flynn's Response:

    https://talkingpointsmemo.com/news/michael-flynn-lawyers-judge-has-hijacked-case-in-asking-for-rehearing

    Here is a link to the Flynn Response:

    https://drive.google.com/file/d/11JAreePQog7xbzcUCd6u8Qeqyl17SA4K/view
  • Thoughts rattle around my brain.... (could be a lyric to a country song).

    I have been thinking about the argument raised by Flynn (and by the DoJ in its Response) that Judge Sullivan is not a party to the litigation, and because he is not a party, he does not have standing to seek a rehearing en banc. This (IMHO) is Flynn's strongest argument, and it has some legal validity. The Appellate Rule governing Petitions for Rehearing specifically limits the people who may request Rehearing to parties, and to the active judges of the DC Circuit. Since Judge Sullivan is not a party, it would appear that his Petition for Rehearing is improper.

    Except,....

    An argument might be made that the DC Circuit panel which ruled in favor of Flynn, and ordered Judge Sullivan to grant the DoJ Motion to Dismiss actually gave Judge Sullivan the status of a party when it ordered him to respond to Flynn's Petition.

    The Appellate Panel issued an order, sua sponte (on its own) directing Judge Sullivan to respond to Flynn's Petition for Mandamus:

    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., 818F.3d 733 (D.C. Cir. 2016).

    So, although it is clear that Judge Sullivan was not, when Flynn filed his Petition for Writ of Mandamus, did the Appellate Panel confer the status of party on Judge Sullivan when it ordered him to take an adversary role regarding Flynn's petition. Who the hell knows. But it is an interesting question, this late in the evening.
  • So who are they trying to flip this time. the criminal?
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