Replies

I don't think it is true that "all indications" are the D.C. Circuit will grant Flynn's writ of mandamus . . . he will win eventually, but that is different.

1. The Circuit Court could have granted the writ of mandamus immediately, but it didn't;

2. Judge Wilkins, an Obama appointee on this Panel, wrote an opinion denying a writ of mandamus in the Roger Stone case (on 10/22/19) because Stone could move for reconsideration with the lower court. The decision explains: "Where a mandamus petitioner has an adequate alternative remedy, however, we lack jurisdiction to grant the petition."

3. The panel had to find a way to work around the opinion Judge Wilkins wrote less than a year ago because Judge Sullivan gave Flynn and the DOJ until May 26th to move for reconsideration of his motion allowing amicus briefs.

4. The Panel gave Judge Sullivan 10 days to respond (which is after May 26th). If either Flynn's team or the DOJ move for reconsideration, then Judge Sullivan will point that out and the Court of Appeals will deny or delay Flynn's petition. If they don't file for reconsideration, Judge Sullivan may argue that they should have.

The Court of Appeals may be telling Sullivan that Flynn is going to win in the long run, but they are giving him at least this one opportunity (and maybe more) to avoid being embarrassed.

See # 36. The Fokker ruling is from the DC Circuit itself. What Judge Wilkins thinks or does not think does not supercede the DC Circuit.
As for Roger Stone, the prosecution did not withdraw their case. They have with Gen Flynn. Totally different.

United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016) is the controlling case in the DC circuit. The DC COA held: “[T]he `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.”

Judge Sullivan gave Flynn and the DOJ until May 26th to move for reconsideration of his motion allowing amicus briefs.

I"m no lawyer, but here is my concern.

What happens if all parties involved know that the judge is playing a stalling game to drag this out to the election?

He defers on dismissing the case, and instead opens it up for outside party briefs.
He tells the defense that they can motion to reconsider his order.
The defense motions to reconsider his order.
The judge denies the motion and sets the date for amicus briefs.
The defense appeals to the appeals court for a writ of mandamus and the whole cycle repeats.
Two more months go by.

Doesn't Lt. General Flynn have a 6th amendment right to a speedy trial? There is nothing speedy about what this judge is doing while Flynn has been waiting for sentencing, and now a dismissal.

What about his 8th amendment protection from cruel and unusual punishment? Doesn't this judge think that his delaying actions are cruel and unusual to Flynn, who's been living with this since 2017?

Shouldn't the appeals court order Sullivan to end this within the next 10 days, at this point, to protect Flynn's 6th and 8th amendment rights?

-PJ