On Wednesday afternoon, President Donald Trump announced that he has pardoned General Michael Flynn. The pardon ends the drawn-out battle between the Department of Justice and District Court Judge Emmet G. Sullivan who refused to dismiss the charges against General Flynn after new evidence was discovered that led to the Department's recommendation to drop the charges.

Long overdue justice for Gen. Flynn after a politicized prosecution and judge's unwillingness to dismiss the case after being ordered to do so by the D.C. Circuit. https://t.co/uY75CGHNgw

— RNLA ⚖️ (@TheRepLawyer) November 25, 2020

The future of the federal courts has emerged yet again as a prominent issue in the 2020 presidential election.  Democrats hope to enact "structural court reforms" if Joe Biden is elected in November.  What does this mean?  The official Democratic Party Platform endorses expanding the number of judges on the federal bench, and you guessed it, expanding the number of justices on the Supreme Court is also on the table.

In a recent op-ed for NBC, Deputy Campaign Manager and Senior Counsel to Trump 2020 Justin Clark detailed what Democratic control of judicial nominations would mean for the country:

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.

On Wednesday, former National Security Advisor Michael Flynn emerged victorious in the fight over whether to grant his writ of mandamus filed in the D.C. Circuit. This comes after U.S. District Court Judge Emmet Sullivan refused to dismiss Flynn’s case, despite the Department of Justice informing the court that it was no longer pursuing charges against him. Judge Sullivan appointed John Gleeson as amicus curiae to argue for his ability to decide whether the charges should be dropped. In an opinion authored by Judge Neomi Rao the D.C. Circuit admonished Judge Sullivan’s decision to appoint Gleeson and ordered the lower court to dismiss the charges against Flynn.

On Wednesday, former National Security Advisor Michael Flynn's legal team and the Department of Justice filed responses to the inflammatory brief written by Michael Gleeson on behalf of District Judge Emmet Sullivan. Judge Karen LeCraft Henderson referred to Gleeson as an "intemperate amicus" during oral arguments before the D.C. Circuit last week.

On Friday morning, oral arguments were heard before the D.C. Circuit concerning former National Security Advisor Michael Flynn’s appeal on a writ of mandumus  to District Court Judge Emmett Sullivan’s decision to decline to drop the charges against Flynn despite the Department of Justice’s request after an internal investigation. During the arguments, Judge Karen LeCraft Henderson called Judge Emmet Sullivan’s attorney, John Gleeson, an “intemperate amicus.”  As Jonathan Turley describes Gleeson:

Now Gleeson has filed a brief that confirms the worst fears that many of us had about his appointment.  Gleeson assails what he called  “a trumped-up accusation of government misconduct.” The ultimate position advocated in Gleeson’s arguments would be a nightmare for criminal defendants, criminal defense counsel and civil libertarians.  Indeed, as discussed below, Gleeson was previously reversed as a judge for usurping the authority of prosecutors.

Gleeson actually makes the Red Queen in “Alice in Wonderland” look like an ACLU lawyer. After all she just called for “Sentence First–Verdict Afterward”  Gleeson is dispensing with any need for verdict on perjury, just the sentence. However, since these arguments are viewed as inimical to the Trump Administration, many seem blind to the chilling implications. . . .

[A]ccording to Gleeson, the Court should first sentence a defendant on a crime that the prosecutors no longer believe occurred in a case that prosecutors believe (and many of us have argued) was marred by the own misconduct.  He would then punish the defendant further by treating his support for dismissal and claims of coercion as perjury.  That according to former judge Gleeson is a return to “regularity.”  I have been a criminal defense attorney for decades and I have never even heard of anything like that. It is not “regular.” It is ridiculous.

Today, attorney and retired judge John Gleeson filed a brief on behalf of Judge Emmet Sullivan, defending Judge Sullivan’s decision to decline to immediately drop charges against former National Security Advisor Michael Flynn at the Department of Justice’s request.  Judge Sullivan’s position represents an improper encroachment on the power of the Executive. The brief is contrary to what Gleeson himself wrote while serving as a judge. In 2013, he that prosecutors have “near-absolute power” when dismissing a case unless the motion is “clearly contrary to manifest public interest.”

In May, the Department of Justice announced that they were filing a motion to dismiss the charges against former National Security Advisor Michael Flynn However, Judge Emmet G. Sullivan declined to dismiss the case without further testimony from interested parties. As a result, Flynn’s attorneys have filed a writ of mandamus in the D.C. Circuit asking it to order Judge Sullivan to dismiss the case. In a rare move, Solicitor General Noel Francisco has personally signed on to the DOJ’s brief in support of Flynn’s writ.

Apparently both the left and the right are outraged at aspects of Judge Sullivan's decision to delay granting the Department of Justice’s motion to drop the case against Michael Flynn.  But while one side respects the separation of powers and the rule of law, the other side is acting like a schoolyard bully making threats.

To our minds, Judge Sullivan blurs separation of powers when he appointed a retired judge who publicly expressed opinions against Flynn to review the case and accept amicus curiae briefs.  Judge Sullivan seems to be acting like a prosecutor, not an “umpire” judge.  While we consider Judge Sullivan’s decision extremely troubling, we think Flynn’s lawyers took the appropriate course of action in this case by requesting a writ of mandamus. 

General Michael Flynn's attorneys have requested a writ of mandamus from the D.C. Circuit ordering that the Department of Justice's unopposed motion to dismiss be granted.  While mandamus is an extraordinary writ, the district judge's actions in the past two weeks have also been extraordinary.  As Hans von Spakovsky explained: