According to the Department of Justice (DOJ), its a no-win situation for District Judge Emmet Sullivan, whos seeking a rehearing of an appeals court decision that ordered him to accept the dismissal of the DOJs case against former Trump adviser Lt. Gen. Michael Flynn.
Sullivan, through his lawyer Beth Wilkinson, argued that a three-judge panel of the District of Columbia appeals court erred in its order. Hes asking for a rehearing by the full court (en banc).
But only people with a “personal stake” in the proceedings can seek appellate review, the DOJ said in a July 20 response to Sullivans petition.
“A judge does not have—and under the [Constitutions] Due Process Clause, cannot have—such a stake,” the department said.
Flynns lawyers highlighted the same issue, noting that if Sullivan indeed has a personal stake in the case, it would disqualify him as its judge.
“It is unsurprising that the district judge fails to cite a single instance in which a court of appeals has granted rehearing at a district judges behest,” the DOJ said.
“In fact, we are aware of only one case in which a district judge has even asked for rehearing en banc—a request the court of appeals denied.”
The DOJ response was signed by a lineup of heavy-hitters, including acting Solicitor General Jeffrey Wall, whos responsible for arguing cases on the governments behalf before the Supreme Court, as well as his deputy Eric Feigin, his counselor Hashim Mooppan, and five other DOJ attorneys.
Flynn, former head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump, pleaded guilty in 2017 to lying to the FBI.
In January, he moved to withdraw his plea. In May, the DOJ moved to dismiss the case after a review uncovered documents suggesting the FBI questioned Flynn solely to elicit false statements from him.
Sullivan didnt grant the DOJ motion. Instead, he suggested he would allow third parties to weigh in on the dismissal. He also denied Flynns motion that argued against third-party arguments in the case.
Flynn responded by asking the appeals court for an extraordinary intervention.
Sullivan doubled down and appointed former federal Judge John Gleeson as an amicus curiae (friend of court), tasking him with developing arguments against the case dismissal. The pick of Gleeson was a signal of its own, since just days before the appointment, Gleeson co-authored an op-ed arguing for Sullivans launching a “full, adversarial inquiry” into the dismissal motion and possibly denying it and sentencing Flynn.
On June 24, the appeals court granted Flynns writ of mandamus petition and ordered Sullivan to accept the dismissal.
Sullivan hasnt complied, taking advantage of the fact the appeals court orders take three weeks to take effect. Instead, he asked for a rehearing. His lawyer has argued that the situation is not sufficiently extraordinary to require the mandamus because Sullivan has not rejected the dismissal yet. On July 10, the appeals court put its decision on hold, ordering Flynn to respond by July 20 to Sullivans petition and inviting the DOJ to do so as well.
According to the DOJ, Wilkinson used incorrect legal arguments and backed them with precedents that dont actually support her claims.
Federal courts, including the Supreme Court, have repeatedly affirmed that the executive branch has power over bringing and dropping charges, and judges have no busiRead More From Source