Posted on 07/09/2020 1:15:45 PM PDT by bitt
U.S. District Judge Emmet Sullivan, through his counsel Beth Wilkinson, has asked for U.S. Court of Appeals for the District of Columbia Circuit to rehear his case against the immediate dismissal of the Michael Flynn prosecution.
The Thursday petition for rehearing comes after a three-judge panel on the D.C. Circuit granted Flynn’s petition for writ a mandamus on June 24, directing Sullivan to dismiss the case.
“The panel majority granted the extraordinary writ of mandamus to prevent the district court from receiving adversarial briefing and argument on a pending motion. The opinion is couched as a fact-bound ruling based on ‘the record before the district court,'” the Sullivan petition for rehearing began. “It in fact marks a dramatic break from precedent that threatens the orderly administration of justice.”
The three-pronged argument noticeably cited the Supreme Court’s “admonition” in Seila Law LLC v. CFPB, a case that was decided on June 29:
First, the majority undermined this Court’s consistent interpretation of the mandamus standard by forcing the district court to grant a motion it had not yet resolved, based on alleged harms to a party that did not seek mandamus, and in reliance on arguments never presented to the district court. Any one of these rulings would constitute an unwarranted dilution of the requirement that a petitioner lack adequate alternative remedies. Taken together, they threaten to turn mandamus into an ordinary litigation tool.
Second, the panel undercut Supreme Court and Circuit precedent in holding that the separation of powers precluded the district court from inquiring into the government’s Rule 48 motion. The Supreme Court’s decision in Rinaldi v. United States,434 U.S. 22 (1977) (per curiam),recognized a district court’s ability to hear an unopposed Rule 48 motion. Moreover, no Circuit precedent establishes the type of clear and indisputable right necessary to authorize the panel’s resolution of that constitutional question. That is especially so given the Supreme Court’s recent admonition that separation-of-powers questions are fact- and context-specific. See Seila Law LLC v. CFPB, ___ S. Ct. __, slip op. 2, 16–18 (June 29, 2020). Mandamus is not the place to make new law.
Third, the panel contravened Supreme Court and Circuit precedent in precluding the district court from appointing an amicus and scheduling a hearing. The Supreme Court and this Court have employed those practices to resolve cases where the parties agreed and the ultimate outcome was predictable. The panel cited no law precluding district courts from similarly considering both sides of an issue before deciding it. Wilkinson said that the three-judge panel’s decision “threatens to turn ordinary judicial process upside down.”
“It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions—it does not preempt them,” the petition said. “This case satisfies the requirements of Rule 35, and en banc review should be granted.”
Flynn’s lawyers have fought tooth and nail against Sullivan’s appointment of an amicus curiae to argue against the Department of Justice’s motion to dismiss. The 2-1 panel decision was a boon for them, but there’s no guarantee the full D.C. Circuit will view the case the same way.
Read the petition in full below:
The DC Circuit is far left. Flynn was lucky to get a favorable 3 judge panel, but if the case is reviewed en banc, they will reverse the panel. There is no other reason to rehear it. We have watched this play out several times in the 9th circus. Get a big decision from a panel only to see it reversed by the full court.
This en banc late delay was predicted by me and others. More and more people realize that this is a ploy to delay this decision until the election. Obviously the DS is scared blood white of Gen. Flynn and hope to fandangle the election to shut out Prez Trump and rid themselves of the Flynn threat -- AND the Barr / Durham threat.
American justice hangs in the balance; we have already seen the justice in store for us under Biden with Kavanaugh and Jussie Smollett. God save us!
IOWs they are all lawless.
Yep. They self-proclaim to be the law. You noted the constitution. The judges redefine it.
well so much for the “jury box” whats next?
Some Freepers have proposed letting the judicial process run its course, but the process has been corrupted. Trump may have to pardon Flynn to keep Sullivan from harassing him any longer.
Methinks the term “hanging judge” needs to be redefined.
See #27.
So what can the judiciary do to the DoJ if Sullivan “wins” and they refuse to continue prosecuting the case? Throw them in jail for contempt of court? That would not be a wise move...
Trump, the DOJ and Trump's team are going to have to start lighting up the Democrats with artillery barrages of accusations and prosecutions very soon.
I realize that they're probably holding back as long as possible to prevent the Media from regrouping and organizing a coherent response before November.
It's a matter of timing...
If this has not been settled with a dismissal by election day, win or lose President Trump will pardon Flynn the day after the November election. Flynn has been put through hell by the deep state (i.e. the swamp or the sewer, take your pick) and deserves his freedom.
Dems have the majority on that particular appellate court. That is the reason Dem Sullivan is making the en banc review request. He figures it will be decided along political lines if they do review it. I can/t say I disagree with him.
Stall stall stall to keep Flynn quiet until the election can be stolen in November. Then the criminals complicit in the coup against Trump will get off Scott free and this entire episode of the insider attack against our Constitution will go into the dust bin of history.
I try to listen to Flynn’s lawyer about these matters. I thought I heard her say that Sullivan could not ask for a hearing by all the judges, but the entire court could decide by themselves to hear the case. Lawyers?
If the appellate court sides with Flynn, they are similar dirtbags like Sullivan and it should be expedited to SCOTUS. Afer some of their recent decisions though, I don’t have so much faith in Gorsuch, and of course Roberts is unreliable.
I wonder if there is anything the DoJ can do. They dropped the charaged. Sullivan has precent all against him in continuing the case. Judges are not prosecutors.
This used to be a free country. We’re old school. ‘Mericans.
At what point does Flynn and Powell say “We’re not going to play this game anymore. Rule what you want or not, it doesn’t matter.” Then go home.
I’m sick to my stomach about this.
That’s interesting. I did read that Flynn is not under a gag order.
this is why we need the house.
to impeach SOB judges like this
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