U.S. District Court Judge Emmett Sullivan comes to the rescue of the rule of law over the stinking corruption of Attorney General William “Coverup” Barr. Thank you, judge!
A petition for the en banc review was filed by U.S. District Judge Emmet Sullivan after a three-judge panel on the D.C. Circuit of Appeals granted Michael Flynn’s emergency petition on June 24. The three-judge panel directed Judge Sullivan to dismiss the case as requested by the Trump “Injustice” Department without any hearing on Flynn’s motion to dismiss. Trump-appointed Circuit Judge Neomi Rao penned the majority opinion, which George H.W. Bush-appointed Circuit Judge Karen L. Henderson joined.
The U.S Court of Appeals for the District of Columbia Circuit on Thursday agreed to rehear the case regarding Michael Flynn’s request for a writ of mandamus — or, in other words, to force the trial court judge overseeing the matter to dismiss it without sentencing him after pleading guilty to lying to federal authorities.
The order to re-hear the case is procedurally rare; it reads (in part) as follows:
“Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate, it is ORDERED that this case be reheard by the court sitting en banc. It is FURTHER ORDERED that the court’s order filed June 24, 2020, be vacated. It is FURTHER ORDERED that oral argument before the en banc court be heard at 9:30 a.m. on Tuesday, August 11, 2020. The parties should be prepared to address whether there are “no other adequate means to attain the relief” desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). A separate order will issue regarding the allocation of oral argument time.
Tierney Sneed explains the language in the court’s order:
Judge Sullivan appointed a “friend of the court” (or “amicus”), retired judge John Gleeson, to oppose Flynn’s dismissal request [after the DOJ changed its position and would not defend its own guilty plea agreement].
Judge Gleeson has since advised Judge Sullivan that it’s in his power to deny the request and that the DOJ engaged in prosecutorial misconduct in finding pretextual excuses for wanting Flynn’s case dropped.
The process Sullivan laid out for considering this advice was interrupted when Flynn asked the D.C. Circuit to intervene in Sullivan’s handling of the matter. By a 2-1 vote, a three judge panel sided with Flynn — who has been backed by the Justice Department in the dispute — and ordered Sullivan to dismiss the case, prompting Sullivan to turn to the full circuit court.
Such an intervention in a lower court’s proceedings is usually only granted in very rare circumstances. One of the arguments Sullivan has made is that it’s too early in the process for the appeals court to get involved, since Sullivan has not said one way or the other whether he will grant or deny the DOJ dismissal request.
In its order Thursday, the D.C. Circuit hinted that it was particularly interested in that argument.
“The parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired,” the order said, citing a 2004 Supreme Court case the centered around whether an appeals court could intervene in a district court’s proceedings.
The August 11 oral argument date is an indication that the full appellate court is treating this appeal as an expedited appeal. If it rules in Judge Sullivan’s favor, it will allow him to hold a hearing on Michael Flynn’s motion to dismiss, opposed by amicus Judge Gleeson and other amicus curiae briefs filed in this case. Judge Sullivan may demand witnesses from the Department of Justice to explain its extraordinary decision to withdraw the guilty plea agreement and to attack the foundation of its own prosecution. He could haul William “Coverup” Barr into his court to explain his extraordinary intervention in this case.
If Judge Sullivan denies Flynn’s motion – not at all a certainty – he would then proceed to the sentencing hearing.
At that point Michael Flynn would begin the next round of appeals. Of course, Donald Trump is likely to issue a pardon before he leaves office in any event.