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By Matthew Russell Lee, Patreon
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FEDERAL COURTHOUSE, Aug 31 – Michael Flynn's case on August 11 was the subject of an hours' long oral argument 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, below.

 Now on August 31, the Court has ruled that the District Court can go forward, finally finding (ironically or not) that "the harms to Flynn also weigh in favor of the appropriateness of the writ. The majority takes consolation in the fact that Flynn is not “in confinement,” Maj. Op. 8, but Flynn cites numerous harms stemming from protracted litigation, including his continued submission to weekly reporting requirements; the government’s custody of his and his son’s property, including his passport; and his inability to travel. I have focused my analysis on the harms to the Executive Branch because our cases maintain that “the burdens of litigation are normally not a sufficient basis for issuing the writ.” In re al-Nashiri, 791 F.3d at 80. We have recognized, however, that “at some point, even the temporary subjection of a party to a Potemkin jurisdiction so mocks the party’s rights as to render end-of-the-line correction inadequate.” United States v. Microsoft Corp., 147 F.3d 935, 954 (D.C. Cir. 1998). Our recent grant of mandamus to prevent the burden of sitting for depositions of broad “scope and complete irrelevance,” In re Hillary Rodham Clinton, No. 20-5056, slip op. at 9, reinforces the appropriateness of mandamus for the far more severe burdens on Flynn’s liberty from the proceedings before the district court."

From August 11: 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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