The following schedule shall govern the proceedings in this case subject to a motion for reconsideration, for good cause shown, filed by no later than 12:00 PM on May 26, 2020
He drafted an order specifically intended to deprive the Court of Appeals of jurisdiction.
Where a mandamus petitioner has an adequate alternative remedy, however, we lack jurisdiction to grant the petition. In re Asemani, 455 F.3d 296, 299-301 (D.C. Cir. 2006) (dismissing mandamus petition for lack of jurisdiction).
If Flynn's lawyers wanted to pick this fight, they should have been prepared to get hit from behind. They don't address this and the D.C. Circuit will probably reject their petition, if they don't fix it.
United States v. Sineneng-Smith, U.S. Supreme Court 19-67 (May 7, 2020); Opinion by Ginsburg, J.
Counsel for the parties were permitted, but “not required,” to file supplemental briefs “limited to responding to any and all amicus/amici briefs.” Id., at 123 (emphasis added). Invited amici and amici not specifically invited to file were free to “brief such further issues as they, respectively, believe the law, and the record calls for.” Ibid. The panel gave invited amici 20 minutes for argument, and allocated only 10 minutes to Sineneng-Smith’s counsel. Reargument Order in No. 15–10614 (CA9), Doc. No. 92. Of the three specified areas of inquiry, the panel reached only the first, holding that §1324(a)(1)(A)(iv) was facially overbroad under the First Amendment, 910 F. 3d, at 483–485, and was not susceptible to a permissible limiting construction, id., at 472, 479.True, in the redone appeal, Sineneng-Smith’s counsel adopted without elaboration counsel for amici’s over-breadth arguments. See Supplemental Brief for Appellant in No. 15–10614 (CA9), p. 1. How could she do otherwise? Understandably, she rode with an argument suggested bythe panel. In the panel’s adjudication, her own arguments,differently directed, fell by the wayside, for they did not mesh with the panel’s overbreadth theory of the case.
II
No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith herself had raiseda vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electingnot to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. 910 F. 3d, at 483–484.6 Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not tobe ‘casually employed.’” United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 39 (1999)).
As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.
United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir, April 5, 2016)
A.The Executive’s primacy in criminal charging decisions is long settled. That authority stems from the Constitution’s delegation of “take Care” duties, U.S. Const. art. II, § 3, and the pardon power, id. § 2, to the Executive Branch. See United States v. Armstrong, 517 U.S. 456, 464 (1996); In re Aiken Cnty., 725 F.3d 255, 262-63 (D.C. Cir. 2013). Decisions to initiate charges, or to dismiss charges once brought, “lie[] at the core of the Executive’s duty to see to the faithful execution of the laws.” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986). The Supreme Court thus has repeatedly emphasized that “[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.” United States v. Batchelder, 442 U.S. 114, 124 (1979); see Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
Correspondingly, “judicial authority is . . . at its most limited” when reviewing the Executive’s exercise of discretion over charging determinations. Pierce, 786 F.2d at 1201; see ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987). The decision whether to prosecute turns on factors such as “the strength of the case, the prosecution’s general deterrence value, the [g]overnment’s enforcement priorities, and the case’s relationship to the [g]overnment’s overall enforcement plan.” Wayte v. United States, 470 U.S. 598, 607 (1985). The Executive routinely undertakes those assessments and is well equipped to do so. By contrast, the
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Judiciary, as the Supreme Court has explained, generally is not “competent to undertake” that sort of inquiry. Id. Indeed, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967). “Judicial supervision in this area” would also “entail[] systemic costs.” Wayte, 470 U.S. at 608. It could “chill law enforcement,” cause delay, and “impair the performance of a core executive constitutional function.” Armstrong, 517 U.S. at 465 (quotation omitted). As a result, “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.” Id. at 464 (internal quotation marks, quotation, and alterations omitted).
B.
Those settled principles counsel against interpreting statutes and rules in a manner that would impinge on the Executive’s constitutionally rooted primacy over criminal charging decisions. Of particular salience, Rule 48(a) of the Federal Rules of Criminal Procedure requires a prosecutor to obtain “leave of court” before dismissing charges against a criminal defendant. Fed. R. Crim. P. 48(a). That language could conceivably be read to allow for considerable judicial involvement in the determination to dismiss criminal charges. But decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion. See e.g., Newman, 382 F.2d at 480. To that end, the Supreme Court has declined to construe Rule 48(a)’s “leave of court” requirement to confer any substantial role for courts in the determination whether to dismiss charges.
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Rather, the “principal object of the ‘leave of court’ requirement” has been understood to be a narrow one—“to protect a defendant against prosecutorial harassment . . . when the [g]overnment moves to dismiss an indictment over the defendant’s objection.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977). A court thus reviews the prosecution’s motion under Rule 48(a) primarily to guard against the prospect that dismissal is part of a scheme of “prosecutorial harassment” of the defendant through repeated efforts to bring—and then dismiss—charges. Id.
So understood, the “leave of court” authority gives no power to a district court to deny a prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant’s alleged conduct. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003). The authority to make such determinations remains with the Executive.
It would force the Judge to hold him in contempt which would further bring heat down - on the judge.
Sullivan can have more scrutiny focus on him and the process as it will bring to light Flynn's own lawyers were compremised and that Sullivan is another "insurance" policy - further people will start digging into all his cases looking for any misdeed.
The judge is corrupt - it's time for Michael Flynn, the president and the American people stand up and let the General speak - and do it with the very goal of being in contempt of this charade of a court room of justice.
It's time for General Flynn to be contemptible and become an American hero