Flynn Case Update: Scathing Briefs Filed in Opposition to Petition for Rehearing on Banc

On Monday morning, former National Security Adviser Michael Flynn’s legal team led by Sidney Powell filed a scathing brief in opposition to U.S. District Court Judge Emmet G. Sullivan’s Petition for Rehearing En Banc filed in response to the D.C. Circuit’s decision in June ordering Judge Sullivan to dismiss the charges against Flynn. The brief illustrates Judge Sullivan’s mishandling of Flynn’s case following the Department of Justice’s decision to no longer pursue charges after discovery of new evidence.

Judge Sullivan improperly took on the role of a prosecutor and refused to dismiss charges against Flynn based of the Department of Justice’s recommendation. Flynn’s team explains:

Judge Sullivan’s extraordinary actions arise solely from his disagreement with the Government’s decision to dismiss the case against General Flynn. Not only did he wrongfully tar General Flynn with a baseless assertion of treason, but he has been vocal that General Flynn should be punished severely. Pet. App. 77; ECF No. 205 (suggesting additional perjury charges). Disagreement over a charging decision provides no basis to deny the government’s motion. Fokker Servs., 818 F.3d at 742-43.

From the beginning, Judge Sullivan’s decision to appoint former Judge John Gleeson as amicus to argue on his behalf was inappropriate:

The district court exceeded its constitutional authority by appointing amicus to work against General Flynn after the parties agreed to dismissal. The Constitution and all precedent applying or analyzing Fed. R. Crim. P. 48(a) mandate dismissal on the robust substantive motion of the government—every case. Even if this were an issue of first impression, this Court has held that “mandamus is appropriate” where there is “a substantial allegation of usurpation of power.” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1067 (D.C. Cir. 1998) (citing Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964)); see Ex parte Peru, 318 U.S. 578, 587 (1943) (“delay and inconvenience of a prolonged litigation [must] be avoided by prompt termination of the proceedings in the district court”). The district court’s delay here has extended this litigation and impaired General Flynn’s freedom for an additional ten weeks so far.

Prominent Republicans such as long-time Senate Judiciary member Chuck Grassley, House Judiciary Ranking Member Jim Jordan, and Republican state attorney generals also support the dismissal of the charges against Flynn.

On behalf of the Department of Justice, the Solicitor General's brief agreed with General Flynn's legal team, arguing in part (h/t Catherine Herridge):

In this case, the panel followed established precedent from this Court and the Supreme Court to stop an intrusive process that would usurp the core executive power to decide whether to continue a prosecution. Both this and another circuit have granted mandamus in similar circumstances. In response, the district judge—an officer who would not normally be an interested party-took the extraordinary step of filing a petition in his own name seeking rehearing en banc. That petition only underscores that no case or controversy exists between the actual parties—the government and the defendant— andthat any continuation of the criminal proceedings would transform them into a judicial, rather than executive, prosecution. As far as the government is aware, only one district judge has ever before filed a petition for rehearing en banc in a mandamus case and that petition was denied. This Court should follow the same course here.

Flynn’s legal team and the Department of Justice are correct. As Flynn's team wrote: Judge Sullivan “hijacked and extended a criminal prosecution for almost three months for [his] own purposes.”