Lawyers for retired lieutenant general and former National Security Advisor Michael Flynn filed an emergency petition for extraordinary relief with a federal appeals court on Tuesday that could result in exactly the opposite outcome that’s currently being sought.
Styled as a writ for mandamus, Flynn attorney Sidney Powell requested that the U.S. Court of Appeals for the D.C. Circuit effectively bypass U.S. District Judge Emmet Sullivan and direct the lower court to “grant the Justice Department’s Motion to Dismiss” long-controversial charges of lying to federal investigators.
Flynn previously pleaded guilty to those charges twice over but eventually moved to withdraw his plea (even deleting a tweet in which he admitted guilt). Although it remains true that Flynn pleaded guilty, arguably exculpatory material has come to light in recent weeks. There was even a suggestion that the Federal Bureau of Investigation (FBI) had some misgivings about going after Flynn in the first place–but continued on doing so after infamous former FBI agent and all-purpose Trumpworld bogeyman Peter Strzok insisted the case remain open.
Powell also sought various other forms of relief in the 44-page filing that attempts to make the case for a modern times miscarriage of justice directed by the highest levels of the national security state.
“The Government, which has sole authority to dismiss this prosecution, has presented a well-documented motion explaining its reasons,” the petition argued. “The Government misconduct and Brady violations provide a more-than-sufficient basis for dismissal. An innocent man has been the target of a vendetta by politically motivated officials at the highest level of the FBI. The egregious Government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently.”
Powell also took serial aim and several shots at Sullivan himself:
The district judge’s orders reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the Government’s misconduct and threatening him with criminal contempt pleas. Similarly, Judge Sullivan granted a short motion to dismiss the prosecution of Senator Stevens. [Flynn] has no alternative avenue of relief, his right to relief is “clear and indisputable” and, in these extraordinary circumstances, issuance of the writ is not just appropriate, it follows “as a matter of course.”
As Judge [Richard] Posner wryly noted in [another] case, “The judge . . . is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” Here, that person is the signatory of the Government’s Motion to Dismiss, the United States Attorney for the District of Columbia. Like the district judge in [the other case], the district judge below has taken over the role of prosecutor. “Mandamus serves as a check on that kind of ‘usurpation of judicial power.’”
“The district judge’s latest actions–failing to grant the Government’s Motion to Dismiss, appointing a biased and highly-political amicus who has expressed hostility and disdain towards the Justice Department’s decision to dismiss the prosecution, and the promise to set a briefing schedule for widespread amicus participation in further proceedings–bespeaks a judge who is not only biased against [Flynn], but also revels in the notoriety he has created by failing to take the simple step of granting a motion he has no authority to deny,” the petition accused later on. “This is an umpire who has decided to steal public attention from the players and focus it on himself. He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field.”
While some supporters of the White House predictably hailed the filing and its suggestions of untoward administration of the legal system against an aggrieved ally, many lawyers noted significant issues with the basic thrust of Powell’s legal argument and even the broader machinations at work.
“This is a risky move by Flynn’s legal team, as it was likely Judge Sullivan was going to ultimately still sign off on the dismissal,” national security attorney Bradley P. Moss told Law&Crime via email. “Now, however, they risk a conservative D.C. Circuit upholding Sullivan’s discretionary authority to impose a punishment on his own. If that happens, all bets are off.”
And while that would clearly be the worst case scenario for Flynn and his legal team, the general consensus is that the D.C. appeals court is exceedingly unlikely to give the accused what he’s asking for here.
“The idea that Flynn wants to stop the judge from doing exactly what a judge is supposed to do shows that they know just how frivolous their position is,” former federal prosecutor and current Westchester County District Attorney candidate Mimi Rocah said in an email.
George Washington University law professor Jonathan Turley, who has consistently sounded the alarm about the circumstances surrounding the FBI’s interview of Flynn, also said the appeal presented legal questions that the court is “unlikely to reach on appeal.”
…The filing notably makes reference to the earlier sentencing hearing and Sullivan’s controversial remarks. https://t.co/oDBDcfaCyY The latest orders raise troubling questions of judicial overreach, but present legal questions that the court is unlikely to reach on appeal.
— Jonathan Turley (@JonathanTurley) May 19, 2020
“The D.C. Circuit has just about the highest bar to this kind of emergency (‘mandamus’) relief of any court in the country—and there’s no precedent that Sullivan is ‘clearly’ violating by taking his time and entertaining amici in reviewing DOJ’s motion,” University of Texas Law Professor Steve Vladeck sarcastically observed via Twitter. “Other than that, though…”
Obama administration alum and Citizens for Responsibility and Ethics in Washington (CREW) co-founder Norm Eisen mocked the filing and predicted the legal maneuvering would not pay off.
“Does not meet steep mandamus standard [and] will be tossed,” he tweeted late Tuesday aftenoon.
“Stunning evidence of government misconduct and General Flynn’s innocence”?
I think they meant to write “stunning evidence of government innocence and General Flynn’s misconduct”
Does not meet steep mandamus standard & will be tossed. https://t.co/coPEmEAUAk
— Norm Eisen (@NormEisen) May 19, 2020
Despite initial condemnations, however, Powell’s petition is not especially fantastical.
Rather, it is generally well-cited and relies upon some not entirely unconvincing precedential authority viz. two cases that may, eventually, augur well for her client: (1) the recently-decided Supreme Court case of United States v. Sineneng-Smith (wherein the nation’s high court hypocritically upbraided a lower court for hijacking a case via calls for amici); and (2) United States v. Fokker Servs. B.V. (wherein the D.C. Circuit began by observing: “The Constitution allocates primacy in criminal charging decisions to the Executive Branch.”)
But the filing does contain two completely off-base literary references:
[Flynn] through no fault of his own, has been drawn into a Kafkaesque nightmare that is a cross between The Trial and In the Penal Colony. He has been subjected to deception, abuse, penury, obloquy, and humiliation. Having risked his life in service to his country, he has found himself the target of a political vendetta designed to strip him of his honor and savings, and to deprive the President of his advice. He has been dragged through the mud and forced, through coercion and the artful withholding of information crucial to his defense, to confess to a crime he did not commit–indeed, to a crime that could not exist.
[image via Saul Loeb – Pool/Getty Images]
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