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Sorry, Anti-Trumpers, It Looks Like the DC Circuit *Is* Concerned Over Flynn Judge’s Bias

AP Photo/Manuel Balce Ceneta

This is one saga that should have ended eons ago. It should have ended when Attorney General William Barr filed a motion to dismiss the criminal charges against Michael Flynn, who was forced to plead guilty to “lying to the FBI” charges after having the screws put to him by the Mueller investigation; they threatened him with financial ruin. The judge in his case, Emmet Sullivan, who had called the former general a traitor over the Trump-Russia collusion myth, refused to drop the case. The prosecutor has resigned. There is no case. The  DOJ motion detailed a lengthy history of the prosecutorial misconduct hurled at Flynn, with then-top FBI officials James Comey and Andrew McCabe looking to get him no matter what. 


To add another layer of intrigue, it looks pretty clear that Obama indirectly gave the order to have his people clip Flynn politically. The intention of that January 5, 2017 meeting with his top national security and law enforcement officials, where he said to “get the right people” on him when discussing how to protect the FBI probe from the incoming Trump administration is clear given the events that transpired afterward. Oh, and former Vice President Joe Biden was the one who suggested using the Logan Act to go after Flynn for having run-of-the-mill phone calls with now-ex Russian Ambassador Sergey Kislyak, phone calls that even Comey said looked “legit.” This was a political assassination.

Now, the DC Court of Appeals ruled in favor of Sullivan dropping the case. He appealed and now we have an en banc hearing on August 11, but this move could end up “disqualifying” Sullivan from the proceedings. Some on the DC Circuit seem to be worried about the level of bias exhibited by Sullivan and that he should be prepared to answer questions about it. I’ll have the legal experts explain the rest in a second.

‘Shipwreckedcrew’ over at RedState adds how Sullivan turned this case into a total fiasco and yes, where a possible outcome—at last—is that he’s removed from the case:

…two crucial “institutional” considerations are of concern to the Circuit Court.  By that, I mean, there are two issues of significance which have nothing to do with whether the motion to dismiss should be granted or denied on its merits.

First, the granting of mandamus relief by the panel here under very unique circumstances — by which I mean the notoriety and profile of the case — creates a precedent for resorting to “mandamus” as an ordinary avenue of relief by criminal defendants unhappy with a district court judge’s decision.  An old adage at the appellate level is the saying “bad facts make bad law.”  In this instance it means that the unique circumstances of this case are driving a decision-making process on Rule 48(a) motions — and other motions as well — which the Court may very well come to regret in the future because it is likely to generate innumerable more such petitions in much more ordinary circumstances.  Those future petitions might not have otherwise been filed without this precedent to rely upon.  Responding to such petitions takes time and court resources.  So there will undoubtedly be an “institutional” cost in the future due to a decision by the Court which tells defendants in criminal cases “If you don’t like a Judge’s ruling on a motion — for failure to rule on a motion — file for mandamus relief.”

The second institutional consideration, which I believe is of concern to the Circuit Court, is that the Panel decision can be interpreted as undermining the “fact-finding” process of district court judges, which is typically accomplished in hearings on motions.  Judge Sullivan has corrupted that “regular order” process with his appointment of an amicus counsel to argue against an unopposed motion, and the suggestion that a far-reaching inquiry into the deliberative processes of the Executive Branch — may be including affidavits or testimony under oath by government officials — is warranted by the motion

This would be another instance of “bad facts making bad law” if the Appeals Court were to overrule Judge Sullivan by mandamus because Judge Sullivan has turned the case into a circus.  It would undermine the “regular order” fact-finding process that the Circuit Court is dependent on in 99.999% of all the cases that come before it.  Appeals Courts do not, as a general matter, add to the evidence of the case that is generated in the trial court below.  They review the proceedings in the trial court and make determinations on whether errors were made, and what remedies are necessary to correct those errors.  That requires that the proceedings in the trial court be as clear and complete as possible.  That means encouraging trial courts to develop clear and complete records before the case is sent up on appeal.

But Judge Sullivan has turned that “regular order” process into his own Captain Ahab-esque quest to find the “White Whale.”  The Circuit Court needs to preserve the “regular order” process while at the same time disapproving of how Judge Sullivan has conducted himself in the case.

The Order…suggests that two possible paths to this outcome are under consideration.  One would be to simply find that Judge Sullivan’s conduct has created a circumstance where his partiality can reasonably be called into question. That is a basis for mandatory reassignment under Sec. 455 that I referenced above.

The second option would be the more benign approach of finding that in pursuing the Petition for Rehearing En Banc, Judge Sullivan has now made himself a nominal “party.” As such, he can no longer preside over the case.


Sullivan did tap former federal judge John Gleeson, who works for the law firm that represents resister-in-chief Sally Yates, to fight the DOJ motion, and get this—see if Flynn committed perjury with his initial guilty plea. He also invited amicus briefs from any anti-Trump looney toon out there. As Jonathan Turley, a liberal law professor at George Washington University noted—you simply cannot export the prosecution when there is none to be had. At any rate, if the government doesn’t want to prosecute, then we’ll have the mob do it. That was the move Sullivan made. 


To further expose this hack job against Flynn, a declassified DOJ memo written six days after Flynn’s FBI interview in January of 2017 all but exonerated the then-national security adviser of being a Russian agent. This was buried for years. Who gave the order? This is critical exculpatory evidence. That, and this whole interview being totally unwarranted as the FBI did not have any evidence against Flynn for this sit-down or for any such meeting regarding a federal investigation. 

They had nothing on him—nothing. 

In fact, the FBI was wrapping up its review of Flynn before Robert Mueller took over the FBI’s counterintelligence investigation, which was a total circus, upon Comey’s dismissal in May of 2017. Mueller then for some reason decided to rehash the Flynn circus and the Logan Act allegations. I know it’s not popular and people want to move on, but there should be another in-depth review of the special counsel investigation (SCO). Yes, their report said there was no criminal conspiracy between the Trump campaign and the Kremlin. Yes, it delivered a headshot to the shoddy Trump dossier, the Democrat-funded opposition research project that set off this collusion delusion. But there were still shady deeds occurring, and with Flynn, some have aptly noted that maybe the SCO was set up to polish the gross missteps taken by the FBI’s initial probe into these mythical collusion matters. 

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