Judge Emmett Sullivan files his response with the Court of Appeals (updated)

The lawyer for federal district court Judge Emmett Sullivan filed his responsive brief with the Court of Appeals for the D.C. Circuit Court on Monday, arguing that the Justice Department’s conduct in abruptly deciding to end the case against President Trump’s former national security adviser Michael T. Flynn was so unusual that it raised a “plausible question” about the legitimacy of the move, into which the the court must inquire in the interests of justice.

The New York Times reports, Judge Asks Court Not to ‘Short Circuit’ His Review of Flynn Case:

In a 36-page filing, the lawyer for Judge Emmet G. Sullivan of the United States District Court for the District of Columbia asked a three-judge panel not to cut short his review of the factual and legal issues surrounding the case. A defense lawyer for Mr. Flynn had asked the appellate panel to issue a so-called writ of mandamus ordering the judge to immediately dismiss it without letting him complete an assessment.

“The question before this court is whether it should short-circuit this process, forbid even a limited inquiry into the government’s motion and order that motion granted,” wrote the lawyer, Beth Wilkinson. “The answer is no. Mandamus is an extraordinary remedy that should be denied where the district court has not actually decided anything.”

But the Trump administration, in its own brief, urged the appeals court to shut down the case without any further review. Decisions about whether to prosecute or drop a case are for the Justice Department, and Judge Sullivan has “no authority” to reject the executive branch’s decision in the matter, the government argued.

“The district court plans to subject the executive’s enforcement decision to extensive judicial inquiry, scrutiny, oversight and involvement,” said the Justice Department brief, which was signed by the solicitor general, Noel J. Francisco, and other officials, including Jocelyn Ballantine, a career prosecutor on the case. “Under the Supreme Court’s and this court’s precedents, it is clear and indisputable that the district court has no authority to embark on that course.”

This is not a true statement of the law and precedents, as the amicus briefs invited by Judge Sullivan have made clear. See earlier post. The continuing saga of Judge Emmet Sullivan v. Michael Flynn.

Judge Sullivan appointed a retired judge from Brooklyn, John Gleeson, to critique the government’s request and help evaluate whether Mr. Flynn’s contradictory statements under oath amounted to criminal contempt of court. Mr. Flynn’s defense lawyer then asked the appeals court to force Judge Sullivan to immediately dismiss the charge, arguing that her client had been abused, and a panel ordered the judge to explain himself.

Defending Judge Sullivan’s decision to appoint a “friend of the court” to critique the government’s new position, Ms. Wilkinson — a well-known trial lawyer and former federal prosecutor who helped represent Justice Brett Kavanaugh during his Supreme Court confirmation fight — cited several cases in which judges have taken that step to ensure they would have adversarial arguments to consider when the prosecution and the defense had aligned.

The Justice Department and lawyers for Mr. Flynn have argued that Judge Sullivan has little choice but to drop the case, citing a 2016 opinion by the Court of Appeals for the District of Columbia Circuit that said that the judiciary “generally lacks authority to second-guess” executive branch decisions about whether to charge or drop a case. But in the new filing, Ms. Wilkinson argued that the 2016 case was different distinguishable for several reasons.

Among them, the trial judge in the 2016 case had already made a decision about the issue in dispute, but Judge Sullivan has not. That case did not involve a defendant who had already pleaded guilty, as Mr. Flynn has. And, Ms. Wilkinson argued, the prosecution’s abrupt reversal in the Flynn case suggested there might be something irregular, justifying the judge carefully scrutinizing it.

The department’s motion to dismiss the charge, she noted, “featured no affidavits or declarations supporting its many new factual allegations; it was not accompanied by a motion to vacate the government’s prior, contrary filings and representations; it cited minimal legal authority in support of its view on materiality; and it did not mention the March 2017 statements regarding Mr. Flynn’s work for Turkey that were relevant conduct for his guilty plea.”

Ms. Wilkinson also noted that Judge Sullivan needed to resolve the contempt-of-court issue, apart from deciding whether to dismiss the false-statements charge against Mr. Flynn, and argued that it would be more efficient for him to assess all the issues together.

But the Justice Department brief argued that Judge Sullivan had no basis to independently scrutinize whether Mr. Flynn lied under oath to the court, because even if he did, that should be treated as the crime of perjury — which only the Justice Department can prosecute — rather than as contempt of court.

That is bullshit. A judge has absolute authority over his courtroom, and if someone engages in contempt of court, it is the judicial branch which has authority over imposing sanctions for contempt of court. The Justice Department is seeking to infringe upon and limit the enforcement powers of the independent judiciary with this specious argument, because they know Michael Flynn committed perjury and is subject to sanctions for contempt of court.

What Attorney General William “Coverup” Barr is really concerned about is Judge Sullivan exposing his department’s subversion of justice and coverup in this case, and holding DOJ personnel to account with sanctions in his court.

UPDATE: In a related matter, the William Barr corrupted Department of Justice filed a petition for a writ of certiorari with the U.S. Supreme Court seeking to prevent House Democrat from gaining access to Special Counsel Robert Mueller’s grand jury evidence. DOJ asks Supreme Court to block Democrats’ access to Mueller documents:

The Department of Justice (DOJ) on Monday asked the Supreme Court to overturn a lower court decision granting House Democrats access to redacted grand jury materials from former special counsel Robert Mueller’s Russia probe.

The Monday filing serves as the Trump administration’s formal appeal (petition for a writ of certiorari) of a March order to hand over secret transcripts and exhibits that Democratic leaders of the House Judiciary Committee initially sought as part of the impeachment inquiry into President Trump.

The justices previously granted the administration’s request to halt the disclosure order, issued by a divided three-judge panel of the D.C. Circuit Court of Appeals, from taking effect to allow time for an appeal.

From the Court’s previous order: “The issuance of the mandate of the United States Court of Appeals for the District of Columbia Circuit, case No. 19-5288, is stayed pending the filing and disposition of a petition for a writ of certiorari, if such petition is filed on or before June 1, 2020, by 5 p.m. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the judgment of this Court.”

As I said before, it is almost a certainty there are four conservative justices on the court willing to grant certiorari to allow the Trump administration to run out the clock, and to not address this matter until next year. I would be very surprised if the court denied cert, as is the proper course based upon exisiting precedent.

Department of Justice, Applicant v. House Committee on the Judiciary, Case Number: (19-5288).