Fox News reports Washington, D.C. federal District Judge Emmett Sullivan is refusing to dismiss the criminal case against former national security advisor Michael Flynn, and is now arguing that the D.C. Circuit Court of Appeals erred when it ordered him to do so last month in a 2-1 ruling.
Sullivan, through his attorney Beth Wilkinson, filed a petition on Thursday for a so-called “en banc” review by the entire D.C. Circuit Court of Appeals, arguing that the three-judge panel was improperly trying to force the district court “to grant a motion [to dismiss] it had not yet resolved … in reliance on arguments never presented to the district court.”
Flynn’s lawyer, Sidney Powell, successfully sought a writ of mandamus last month from the three-judge panel on the appellate court ordering Sullivan to toss the case. Writs of mandamus are unusual remedies that order government officials to take a certain action; they are appropriate when there has been a “usurpation of judicial power” that is “clear and indisputable,” Powell acknowledged.
Powell, whose argument was supported by the Justice Department, primarily asserted that the constitutional separation of powers, and D.C. Circuit case law, clearly holds that judges cannot unilaterally keep prosecutions alive when both the prosecutors and the defense seek to dismiss charges. The DOJ moved to dismiss the Flynn case earlier this year after a slew of exculpatory information, which the government acknowledged should have been disclosed long ago under a standing court order, was finally turned over to the defense team.
But, the circuit court’s panel decision ordering the dismissal of the case, Sullivan argued, was premature, and threatened to turn “mandamus into an ordinary litigation tool.”
“All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion,” Sullivan’s motion reads. “Outside the panel opinion, those actions have not been considered inappropriate—much less an extreme separation-of-powers violation justifying mandamus.”
If en banc review is granted, an oral argument date would then be set, likely in the fall. If en banc review is denied, Sullivan could appeal to the Supreme Court — a process that could take months to resolve, past Election Day.
The Department of Justice has agreed with Powell’s arguments, saying in court filings that Sullivan risked compromising the separation of powers between the executive and judicial branches.
“This Court should issue a writ of mandamus compelling dismissal,” the DOJ wrote in a filing signed by Solicitor General Noel Francisco last month, who ordinarily represents the government before the Supreme Court. Francisco’s imprimatur was significant, and indicated the DOJ was taking Sullivan’s actions seriously.
“Under Articles II and III of the Constitution, the power to prosecute belongs to the Executive, not the Judiciary,” the government continued. “Federal Rule of Criminal Procedure 48, read against the backdrop of that constitutional principle, required the district court to grant the government’s motion to dismiss the indictment with prejudice because that motion was unopposed.” That rule of procedure states: “The government may, with leave of court, dismiss an indictment, information, or complaint.”
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