CLAIMS TWO-JUDGE MAJORITY “CONTRAVENED SUPREME COURT AND CIRCUIT PRECEDENT”
by Sharon Rondeau
(Jul. 9, 2020) — As tweeted by TechnoFog at approximately 3:30 p.m. EDT Thursday, the federal judge presiding over the case against Lt. Gen. Michael T. Flynn (Ret) which the Justice Department movved to withdraw has asked the full U.S. Court of Appeals for the District of Columbia Circuit to review the order issued last month granting Flynn’s request for a Writ of Mandamus to close the matter.
On June 24, a three-judge panel voted 2-1 to grant the Writ ordering Judge Emmet G. Sullivan to grant the government’s motion to dismiss on the basis that the Executive branch has the authority to make “charging decisions” (p. 7). Sullivan had appointed a retired federal judge to take a view contrary to the government’s, to consider whether or not Flynn should be prosecuted for “perjury,” solicited amicus curiae briefs on the subject, and scheduled a hearing for July 16.
The retired judge Sullivan selected, John Gleeson, had expressed his opposition to the Justice Department’s motion in the case in an op-ed at The Washington Post days before.
Flynn served briefly as President Trump’s first national-security advisor and had twice entered a “guilty” plea after Special Counsel Robert Mueller’s team prosecuted him for allegedly lying to the FBI during a January 24, 2017 West Wing ad hoc interview. However, in January Flynn moved to withdraw the plea after his new legal team, led by Texas-based Sidney Powell, claimed that emerging evidence long withheld by government prosecutors contained exculpatory evidence.
Flynn was one of four one-time 2016 Trump campaign associates placed under investigation by the FBI and possibly other government agencies on the vague suspicion of improper contacts and communications with Russian-government figures. The others, as revealed in a DOJ inspector general’s report late last year, were Paul Manafort, George Papadopoulos, and Carter W. Page.
In 2018, Manafort was convicted of crimes unrelated to “collusion,” or conspiracy, with Russians and is currently on house arrest, having been released from prison earlier due to the coronavirus pandemic. Papadopoulos served 12 nights in federal prison as part of his plea agreement on one count of lying to the FBI. Page, whose communications were extensively surveilled for nearly a year under the Foreign Intelligence Surveillance Act (FISA), was never charged with a crime and reportedly interviewed extensively with Mueller’s team of prosecutors.
The Inspector General’s report demonstrated that numerous errors and omissions were made to the FISA Court to obtain the Page warrant applications, and the court found early this year that at a minimum, the two final applications were “invalid.”
The Mueller investigation concluded in March 2019 that insufficient evidence existed of a Trump-Russia link and reached no conclusion on the FBI’s later allegation that Trump had obstructed justice.
Sullivan is represented to the court by three attorneys, the first of whom, Beth Wilkinson, assisted then-Judge Brett M. Kavanaugh to prepare for his U.S. Supreme Court hearings in front of the Senate Judiciary Committee last September. At the time, although Kavanaugh’s confirmation was expected to be uneventful, a California woman came forward claiming that he attempted to sexually assault her when both were in high school in Maryland more than 30 years before.
Kavanaugh vehemently denied the charges, and Dr. Christine Blasey-Ford’s four allegedly corroborative witnesses provided no substantiation for her claims.
In his brief requesting an en banc rehearing of the three-judge panel’s decision, Sullivan’s attorneys wrote that the majority panel’s decision “marks a dramatic break from precedent that threatens the orderly administration of justice” and “contravened Supreme Court and Circuit precedent in precluding the District Court from appointing an Amicus and scheduling a hearing,” among other objections.
Sullivan’s 69-page petition can be read here.