Posted on 09/01/2020 9:20:05 AM PDT by Kaslin
That the majority of the D.C. Circuit cannot see that Judge Sullivan has a vendetta against Michael Flynn makes one wonder if they are blinded to their own bias as well?
In an 8–2 decision, the D.C. Circuit yesterday denied Michael Flynn’s petition for a writ of mandamus that would have ordered district court Judge Emmett Sullivan to dismiss the criminal charge against Flynn. While the majority’s opinion presented a methodical analysis, devoid of the partisanship Sullivan displayed in handling the case against Trump’s former national security advisor, only politics can explain the D.C. Circuit’s decision. Here’s why.
Flynn’s attorney, Sidney Powell, first sought a writ of mandamus from the D.C. Circuit after Judge Sullivan refused to dismiss the criminal charge against Flynn. The Department of Justice had filed a motion to dismiss the charge that Flynn had lied to FBI agents about his conversations with the Russian ambassador, Sergey Kislyak, after U.S. Attorney Jeff Jensen conducted an independent review of the Flynn prosecution.
Jensen’s investigation uncovered substantial exculpatory evidence that had never been provided to Flynn — evidence indicating Flynn had not lied to the federal agents and that, in any event, any false statement would have been immaterial.
In the mandamus petition, Powell argued that the constitutional principle of separation of powers, and under controlling circuit precedent, Judge Sullivan was required to grant the government’s motion to dismiss. A three-judge panel consisting of Judge Neomi Rao (a Trump appointee), Karen Henderson (a George W. Bush appointee), and Robert Wilkins (an Obama appointee), heard the petition. In a 2-1 decision authored by Judge Rao, the D.C. Circuit granted mandamus and ordered Judge Sullivan to dismiss the criminal complaint. Judge Wilkins filed a dissenting opinion.
However, rather than dismiss the case, Judge Sullivan filed a petition for rehearing en banc, asking the full D.C. Circuit to rule on the propriety of mandamus. A majority of the active judges voted to rehear the case en banc. That a majority of the active judges on the D.C. Circuit voted to grant rehearing en banc is startling—and inexplicable, absent politics being in play.
D.C. Circuit Rules specify that “an en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”
Rather than address “a question of exceptional importance,” the en banc court in the Flynn case addressed a mundane procedural issue concerning the propriety of mandamus. Moreover, consideration by the full court was not necessary to “secure or maintain uniformity of the court’s decisions,” because the Flynn case is truly sui generis — one of a kind. Further, the panel’s analysis was fact-intensive, making the decision to grant mandamus fact-bound. Thus, even if the D.C. Circuit believed the panel had wrongly granted mandamus, en banc review was inappropriate.
Under normal circumstances, appellate courts would never take a fact-intensive case, with little precedential impact, en banc. To be sure, this case has little precedential impact.
The main question considered on appeal concerned the propriety of mandamus, but petitions for mandamus are rarely sought and even more rarely granted. And since circuit rules provide for the perfunctory denial of petitions for mandamus, with the court denying such petitions “without an answer,” there was no cause for the full court to weigh in on the Flynn case — other than politics.
Reading the en banc court’s decision, which Powell told The Federalist was “completely political and result-driven,” really brings this point home. The majority opinion laid out the general principles governing mandamus, stressing it is extraordinary relief and should only issue if the party seeking relief has “no other adequate means to attain the relief”; has a clear and indisputable right to the relief, and the court believes in its discretion relief is merited.
Then, after detailing the lengthy procedural background of the Flynn case, the court held that mandamus was unavailable because an “adequate alternative remedy existed,” namely Flynn could seek mandamus again if the district court denies the government’s motion to dismiss.
Judges Henderson and Rao dissented, both disagreeing with this analysis and finding that under the circumstances of this case, Flynn (and the government) lacked an adequate alternative remedy. This disagreement — whether an adequate remedy existed for purposes of mandamus — is just not the stuff of en bancs.
But there is an even more glaring giveaway to the politicization of the D.C. Circuit’s decision: The refusal of the majority to conclude that Judge Sullivan must now recuse from the case.
As Judge Henderson details in her dissent, 28 U.S.C. § 455, requires a judge to recuse when his impartiality might reasonably be questioned. While the panel concluded Sullivan had not yet crossed that line, once Sullivan filed a petition for rehearing en banc—something only a party has the right to do—he clearly had crossed that line. Yet the majority found no problem with Sullivan continuing to preside over the case.
Here, Judge Henderson’s dissent eviscerates the majority for its “nonchalant” shrugging at Judge Sullivan’s clear partiality. That the majority of the D.C. Circuit cannot see what is clear to half of America, that Judge Sullivan has a vendetta against General Flynn, makes one wonder if they are blinded to their own bias as well?
As if on cue, Judge Thomas Griffith, in his last written words as a federal appellate judge, assures the country in a concurrence that no, this isn’t a political decision. This isn’t about Flynn. This isn’t about U.S. Attorney General William Barr’s decision to dismiss the charges.
This storyline won’t sell anymore. We know what the Obama administration did to Flynn. We know what the FBI and CIA did to Flynn. And we know that there was no real reason to go en banc, other than politics and a desire to delay this case until after the November 2020 election.
Where things go from here, however, is unclear, and Flynn’s legal team has not yet decided on its course of action. Flynn could seek review by the Supreme Court, but strategically he is likely better off waiting for Sullivan to rule on the motion to dismiss — something the D.C. Circuit said they “trust and expect” will happen with “appropriate dispatch.”
Flynn, though, has already waited long enough for justice. And justice delayed is justice denied.
Wow!!! Color me surprised? NOT
DC and its courts have become enemies of constitutional law and We-The-People. They constantly deny USAians our right to lawful government.
Jail for judges who rule on anything but law. Felony prison.
Political hacks are what they are.
Judges are what they are not.
This is one of the most important cases in American history.
If a judge can simply hijack a case and pursue it on his own, he becomes the entire system: prosecutor, judge, executioner. We can’t add “jury” because they aren’t in the picture at all.
This is a reversion to the feudalist system of plenary judges who operated as omnipotent Inquisitors. Everything the judicial system of the United States was founded on is rejected if this stands. The judges will become a government of their own, accountable to no one other then other judges.
Sullivan should not just be overruled but impeached. But of course that’s only done to Presidents who upset the Intelligence “Community”, who have their own aspirations to seizing power.
Is the gag order against Flynn still in effect?
the D.C. Circuit said they “trust and expect” will happen with “appropriate dispatch.”
**************
In DC nothing happens with any dispatch. The objective is always to drag everything out to achieve maximum political leverage. Upholding the law and fair and equal treatment is not even a consideration. The whole system has become a corrupt farce.
Time for PDJT to get out that pardon pen.
It seems that an obvious question would be “who now becomes the prosecution since it won’t be the DOJ?” What legal process decides this? This is ridiculous in the extreme.
The Supreme Court should step in and stop this nonsense but it too is highly political and part of the problem with justice in this country.
Our national decline continues apace.
As long as the charges haven’t been dismissed, I believe General Flynn dare not speak his mind, which is of course why these compromised judges ruled as they did. I hope someday the whole backstory of this ongoing coup d’état is exposed.
“Time for PDJT to get out that pardon pen.”
THAT IS WHAT OUR DOMESTIC ENEMIES WANT.
“It seems that an obvious question would be “who now becomes the prosecution since it won’t be the DOJ?””
Commie popie Frankie would jump at the opportunity.
ACLU, too.
Perhaps Hillary or Big Mike can take the case.
Oh, Big Mike gave up his license.
“What legal process decides this?”
Super Emmett and his buds have appointed themselves.
Congress, the President, the populace...bit players, irrelevant to his Majesty Judge Sullivan.
Sounds like Justice is just another word.. discretionary relief ? 8-2 vote in favour of more delay and abuse of power?
Bizarro World or what?
As if on cue, Judge Thomas Griffith, in his last written words as a federal appellate judge, assures the country in a concurrence that no, this isn’t a political decision. This isn’t about Flynn. This isn’t about U.S. Attorney General William Barr’s decision to dismiss the charges.
—
When people say “it’s not political”. It’s political.
The prosecution's role ended when Flynn plead guilty.
At that point it's in the judge's realm.
“Judge Thomas Griffith, in his last written words as a federal appellate judge, assures the country in a concurrence that no, this isn’t a political decision.”
He will eventually have to explain his reasoning to his maker.
So for any hearings that Might be scheduled, send a low level lawyer from DOJ and state that the government has nothing further.
This outcome was preordained when the Court agreed to hold an en banc hearing. The only interesting question is how Judge Sullivan will define the direction of, “appropriate dispatch”. Since he has been allowed to make stuff up every step along the way, my guess that a decision on November 10th will deemed to be the appropriate dispatch.
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