It’s over. Former National Security Adviser Michael Flynn is finally out of legal purgatory. As Katie wrote, the DC Appeals Court finally ruled that the case against him should be dismissed. They torched the main argument doled out by retired Judge John Gleeson, who argued against the Department of Justice’s motion to dismiss the case. That’s what’s funny about this whole affair and exposes the explicit hackery on the bench here. There was no case. The DOJ motion outlined clear evidence of misconduct on behalf of the Federal Bureau of Investigation. The prosecutor resigned. The defense sure as hell wasn’t going to deny the motion. All parties agreed: drop the case. Yet, Judge Emmet Sullivan, who said that Flynn was a traitor, decided to double-down. Not only did he refuse to dismiss the case, he tapped Gleeson to fight the motion and see whether Flynn could be charged with—get this—perjury. Why? Well, Flynn was pressured into a plea deal for “lying to the FBI,” which he only did when the Special Counsel’s Office threatened him with financial ruin.
It was a political witch-hunt; one could argue a political assassination. The anti-Trump elements in DC took him out over phone calls; run-of-the-mill diplomatic phone calls with then-Russian Ambassador Sergey Kislyak. And we now know, based on former disgraced FBI Agent Peter Strzok’s notes we know that even James Comey admitted that the calls were not out of the ordinary or even improper. They were “legit.” Strzok was also the man who reportedly signed off on the FBI’s counterintelligence probe into Russian collusion that set off this circus in 2016.
Sullivan actually allowed amicus briefs to be filed as well. So, every anti-Trump legal mind could take a swipe at Flynn. He outsourced the prosecution. It’s madness. Oh, and Gleeson just happened to work for the firm that is presenting Sally Yates, the DOJ’s resister-in-chief, who refused to enforce Trump’s executive order on immigration. Flynn’s new legal team under Sidney Powell, which was assembled in 2019, said new evidence will show that Flynn was the victim of a plot within the FBI. That proved to be true; Comey and Andrew McCabe, both former disgraced FBI officials, were gunning for Flynn at all costs. When Sullivan tried to keep this act going, Powell filed a writ of mandamus that was granted by the appeals court, who could have rejected it outright.
So, will this anti-Flynn judge drop the case? Well, Margot Cleveland wrote in The Federalist that he could opt to keep this clown show going:
…as the respondent to Flynn’s petition for mandamus, Sullivan has the same options a normal litigant would have, including seeking review of the panel decision by the entire D.C. Circuit or requesting review by the United States Supreme Court.
Given that Judge Robert Wilkins dissented from the majority opinion, authored by Judge Neomi Rao and joined by Judge Karen Henderson, Sullivan might just opt for open defiance. Such a course of action would be a mistake, though, as Rao penned a cautious opinion, focused on separation-of-powers concerns, that has an extremely limited reach. The majority opinion eviscerated every argument presented in Wilkins’ dissent.
Rarely do federal appellate courts go en banc to rehear a case with narrow reach, and it would be even rarer for the Supreme Court to intervene in a case unlikely ever to arise again.
So Sullivan’s chances of success are low, and any attempt to push forward now would only fossilize his already-bare anti-Trump and anti-Flynn bias. Sullivan’s better course of action would be to immediately grant the government’s motion to dismiss in a short order that framed his earlier rulings and his appointment of an amicus as a concern for transparency. Then, by feigning disgust over the brief Gleeson submitted, Sullivan could extricate himself from the swamp he created.
If he were wise, Sullivan would also make note of the additional exculpatory evidence just turned over by the Department of Justice.
Let’s not forget how this all came about. The FBI weaponized a biased piece of political opposition research called the Trump dossier, which was compiled by ex-British spook Christopher Steele and financed by the Democrats and the Hillary Clinton campaign. It was used to secure a spy warrant against former Trump campaign official Carter Page, used to launch a spy operation against the campaign proper with Crossfire Hurricane, and Flynn’s calls were also part of this nonsensical pursuit of trying to find Russian collusion. There was none. There is no evidence of Trump-Russia collusion. And even when the FBI interviewed Flynn over these calls, the agents reported back that they felt he didn’t lie to them. That brings into view the 302 report on the matter, which took three weeks to file. Department policy says these reports should be filed within five days and it was edited by FBI officials who weren’t even at the Flynn interview, another grave deviation.
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