| Michael Flynn Lawyer Faces
Judge Sullivan Rep in DC Circuit Case Under
Submission
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- The
Source
FEDERAL
COURTHOUSE, Aug 11 – Michael
Flynn's case was the subject
of an hours' long oral
argument on August 11 before a
DC Circuit Court of Appeals
panel of Judges Srinivasan,
Henderson, Rogers, Tatel,
Garland, Griffith, Millett,
Pillard, Wilkins and Rao.
Inner City Press live tweeted
it:
Flynn's lawyer
Sidney Powell: Judge Sullivan
has the appearance of bias,
pursuing Flynn, who is a
defendant without a
prosecutor. "This is not an
ordinary motion. This is a
Rule 48(a) motion. The
government has dropped the
case."
Chief Judge
Srinevasan: Are you aware of
any other case in which
mandemus has been granted at
this stage?
Flynn's lawyer
Powell: Every 48(a) motion in
history has been granted --
Chief
Judge: But are you aware
of a District Court being
compelled in this way?
Flynn's lawyer
Powell: We've never seen a
case pursued in this way. The
process violates Article II
and Article III. He has
no authority for this.
Chief Judge: Judge Henderson?
Judge Henderson:
No questions, thanks.
Questioning
turns to applicability of US
v. Fokker Services, 818
F.3d 733 (D.C. Cir. 2016).
Powell: Judge Sullivan filed
his own petition for
re-hearing in this court,
taking on the mantle of a
litigant.
Flynn's lawyer
Powell: We have 100 motion
citing exculpatory evidence.
It must be ended.
Judge Merrick
Garland: I assume you agree
even if the Supreme Court had
decided an issue, you can't
mandamus a judge this way?
Flynn's
lawyer: This is under Rule
48(a). He is intruding into
the Article II power, which he
can't do. Around Docket 200 we
requested again the dismissal.
Judge Garlard: So
the panel just got it wrong?
Flynn's lawyer: It was my
fault for not pointing it
out.
Flynn's lawyer:
When the government walks in
and says "I quit," it's over.
They are the only ones who can
prosecute. The court can't
continue on its own. But Judge
Sullivan has done so for three
months, effectively.
Judge Thomas B.
Griffith: The question is
whether the court could
appoint this amicus. What do
you mean by "almost
ministerial"? Flynn's lawyer:
It's pretty ministerial.
(Laughs). Judge Griffith:
That's not helpful.
Flynn's
lawyer: He could have called
the parties in and asked about
Brady or Giglio [she
pronounces it Gig-lio not
Gee-lio, and somewhere
SDNY Judge Rakoff winces]
Flynn's lawyer
Powell: We haven't found any
case where a District Judge
has done this, in a criminal
case. It steps all over the
Article II power.
Judge: I
understand your opposition to
the Watergate prosecutors...
Inner City Press
@innercitypress · 5h Judge:
Are you sure you timely
opposed this below? Flynn's
lawyer Powell: Well, we--
Judge: This works better if
you just answer yes or no.
Flynn's lawyer: This is about
that purpose of mandamus.
Judge: You said Judge Sullivan
could have pushed them. How
much?
Flynn's lawyer:
He could have asked if what
was withheld was Brady
material, as in the Stevens
case. Turns out that was
Gig-lio material. Judge: Isn't
there a Supreme Court rule
that they can appoint amici in
a criminal case? Flynn's
lawyer: Appellate courts can.
Judge Rao: To
what extent would re-assign to
another judge cure the
problem? Flynn's lawyer: The
amicus appointment would be
vacated, because the judge was
disqualified. That would go a
long way to solving the
problem.
Chief
Judge: Suppose that I agree
with you on what Fokker means,
would you be entitled to a
mandamos hearing? Flynn's
lawyer: No, sir. Judge quotes
Ezra Pound: some evidence is
so strong it is like finding
fish in the milk. Laughter.
Judge: Are
you saying you didn't argue
these points to the panel or
these events occurred after
the panel ruled? Flynn's
lawyer: A little bit of
both... Judge Sullivan
inserted himself as if he were
a party.
Judge Griffith,
Round 2: Rule 48a was also to
examine cases of favoritism
for politically connected
defendants, no? Flynn's
lawyer: The purpose of 48a is
to prevent vexatious
litigation. Judge Griffith:
History shows another purpose
is to examine favoritism.
Now Solicitor
General's ("Sol-Gen")
argument: Once the government
decides to drop a prosecution,
that's it. General Flynn can
invoke Separation of Powers to
protect his liberty. This
should go no further.
Judge
Henderson: Let me correct the
record. My clerk tells me it
was David Henry Thoreau who
made the statement about
circumstantial evidence [being
like fish in milk] Sol-Gen:
Now Judge Sullivan has gone
further, and argues Fokker has
nothing to say on this.
Sol-Gen:
Judge Sullivan has pre-judged
things. There is a question
about the appearance of
partiality. Judge Rogers: Are
you saying Judge Sullivan
saying mandamus is
inappropriate at this stage
requires disqualification?
Sol-Gen: No, it's him filing
the petition.
Judge Henderson:
Judge Sullivan wanted to
explore whether Flynn engaged
in perjury. That could
indicate that Judge Flynn -
sorry, Judge Sullivan - meant,
I may have to dismiss but I
can look into sanctions.
Sol-Gen: No
District Judge ever raised
specter of contempt for
withdrawal of guilty
plea. It's
past noon now when Judge
Sullivan's lawyer Beth
Wilkinson starts up.... Judge
Garland: What's your response
to the panel's decision?
Wilkinson: All the court
[Judge Sullivan] requested was
briefing. Judge Garland: Both
opposing counsel suggest
you'll call in the AG. Is that
contemplated? Wilkinson: No.
Update:
Case has been taken "on
submission" after 2 minute
rebuttal. Watch this site.
***
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