DC Circuit Orders Judge Sullivan to Respond to Mike Flynn’s Mandamus Petition

While I’ve been deep in the weeds in the misrepresentations floated in an attempt to overturn the Mike Flynn prosecution, several tactical moves have occurred. I want to lay them out here.

As I note below, the amicus Emmet Sullivan appointed, John Gleeson, had asked to address any additional information he needed. In a scheduling order, Sullivan did not specifically address when or whether Gleeson should do that. There are obvious things implicated in the motion to dismiss — most notably, the Flynn-Kislyak transcripts which were cited in the motion but not included as exhibits, as well as any substantiation for the claim that DOJ didn’t already know about the “new” exhibits the many times in the past they took a radically different view on this prosecution.

Also of note: The DC Circuit panel is demanding a response from Judge Sullivan within 10 days, so before Gleeson files his amicus brief. It’s unclear whether Sullivan must write the response to the DC Circuit himself.

May 7: Billy Barr’s DOJ filed a motion to dismiss that provided provably false justification justifying why DOJ was presenting radically different views than it did in January.

May 12: In response to a request to file an Amicus brief, Sullivan told petitioners to hold off; Flynn objected to amici on principles that Sidney Powell was contradicting in real time by reiterating her past support for Sullivan’s appointment of a Special Master in response to DOJ abuse. Flynn also said he’d be cool if Sullivan did dismiss his prosecution.

May 13: Sullivan appointed John Gleeson to oppose the government’s motion to dismiss and also to address whether Sullivan should hold Flynn in criminal contempt for perjury.

May 14: Covington & Burling lawyer John Hall filed a notice of appearance, as if Covington might still get to defend against Sidney Powell’s accusations that they provided incompetent representation to Flynn.

May 15: John Gleeson formally moved to file an amicus brief, proposing that his brief address the following topics and asking Sullivan to set a briefing schedule and oral argument:

I respectfully request permission to submit a brief on or before June 10, 2020, addressing three issues: (1) the legal framework applicable to the Court’s authority with respect to a motion to dismiss brought under Rule 48 of the Federal Rules of Criminal Procedure (including both the constitutional validity of the Court’s authority to deny such a motion and the standard to be applied in deciding one); (2) any additional factual development I may need before finalizing my argument in opposition to the government’s motion in this case; and (3) whether, based on the record before the Court, it should order the defendant to show cause why he should not be held in criminal contempt for perjury.

May 18: DOJ provided Flynn with the Bill Priestap 302 that reportedly would undermine the Motion to Dismiss.

May 19: Sullivan set the following schedule (unless one of the parties asks him to reconsider by May 26):

June 10: The Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020;

June 10: Any motion seeking leave to file an amicus brief by non-Court-appointed amicus curiae

June 17: The government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae

June 24: The Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020

June 26: The government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020

July 2: The government, Mr. Flynn, and the Court-appointed amicus curiae shall file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020.

July 16: Oral arguments

May 19: Flynn files a petition for a writ of mandamus before the DC Circuit

May 21: The DC Circuit (including Poppy Bush appointed Karen Henderson, Obama appointee Robert Wilkins, and Trump hack Neomi Rao (who had recused on other Mueller related matters) instructs Sullivan to respond to Flynn’s petition within 10 days (so May 31), specifically citing US v. Fokker Services. Adding: the DC Circuit also invited the government to weigh in during that same 10 day period. While that suggests the conservatives are inviting a pile on, it also may moot the government’s opportunity to petition for a writ of mandamus if Sullivan has an opportunity to actually rule.

107 replies
  1. earlofhuntingdon says:

    I guess the DC Circuit panel didn’t like Sullivan’s schedule, already posted, for dealing with DoJ’s motion to dismiss. So instead of dealing with that, Sullivan must spend time replying to this panel about Flynn’s writ. A Republican circle jerk if ever there was one.

    • Actual Lawyer says:

      Republican circle jerk? I guess you’ve never read the cases Flynn cites. Sullivan is going to get smacked down hard. He should just grant the motion and spare himself the indignity of having to explain his insane orders.

      • bmaz says:

        Lol, you are an “Actual Lawyer” now, are you? I really am, and I have read all the material and cases, and you are full of shit. But you don’t have any real clue, and show little indicia of being a real lawyer who has practiced in federal court, else you might have mentioned the inherent supervisory power of a court. You might could play a comedy club in the Catskills with that trolling, but that bunk will not fly here. Thanks for dropping by!

        • TJ says:

          I am not an attorney, but I did represent myself in my divorce😂. One of my favorite parts of this site it the well thought out opinions vs just political blah blah blah. Your response cracked me up.

      • An Actual Attorney says:

        I question whether you are a lawyer and whether, if you actually read said cases, you understand them.

        Flynn would have a leg to stand on if he had not TWICE plead guilty. The prosecution phase of this case is past. Cases involving pretrial dismissals are not relevant.

        • bmaz says:

          I honestly do not give a flying fuck what you “question”. You parachuted in like you knew your ass from a hole in the ground and, apparently, do not. And, no, Flynn would not have “a leg to stand on”, at least not as to a common §1001 false statements charge. His cases are shit, and his current lawyer absolutely crazy. But, Lol, at least you have acknowledged that there is a formal finding of guilt because of the plea. And, for the record, there is only one plea, just multiple confirmations of his allocution thereon.

            • Tony el Tigre says:

              I’m not an attorney but I come from a family of them, does my opinion count?

              Actual Lawyer appears to be a Flaky Wingnut (the new breakfast cereal coming soon!) and An Actual Attorney appears to be an actual attorney.

              Flynn is a lying, deceitful prick but since he’s a Trumpette, that goes without saying.

        • earlofhuntingdon says:

          That Flynn, represented by exceptional counsel, twice pled guilty is rather the point. He would be out from under all this – with no or risible prison time – had he not spent the last year trying to take back his informed and voluntary guilty pleas. That the DoJ has moved to dismiss the charges – without producing anything that would justify it – is evidence of Barr’s political maneuvering, not the purported strength of Flynn’s case.

          There was no sound basis for the DCC to have accepted Powell’s writ. It should have dismissed it, pending the lower court finishing its timely consideration of the DoJ’s motion, the schedule for which it has published. Any delays are of Flynn’s doing, not Sullivan’s.

          Lastly, your Internet manners are worse than your argument. You parachuted in here without the least awareness of bmaz’s decades of legal, trial, and appellate experience. (You could have fixed that by clicking “about,” which means your ignorance is intentional.) You’re just throwing manure at the wall.

          • Mike says:

            Your position seems to be that a guilty plea with allocution would prohibit a defendant from withdrawing that plea regardless of any new evidence they proclaim to have. At the same time there is the position that the state cannot withdraw the prosecution after the same plea and allocution.

            Consider this hypothetical: On advice of their lawyer, a person pleads guilty to murder and allocutes in court for a reduced sentence. Later, evidence comes to light proving the person is innocent of the murder. Can the court refuse to allow the defendant to withdraw the plea and threaten to charge the defendant with perjury? Appoint an outside party to act as a secondary prosecutor while additionally, refusing to allow a state motion to dismiss?

            I’m not saying I know all the evidence in this case but this judge seems to be stepping outside the normal procedures of any court I have been involved with.

            • bmaz says:

              This is complete bullshit. Yes, after formal acceptance of the plea, the discretion is with the court, not completely the prosecutor. It is in the damn rules. And, of the course the court can allow withdrawal for just cause. But not for manifest perversion of justice and the court’s integrity. I believe you when you say you really don’t know the facts. Try getting them from somewhere other than Fox News.

              • Mike says:

                I’m somewhat at a loss. I have worked in and around the legal system for over 30 years. Never in that entire time have I heard of a judge in a criminal proceeding installing a “secondary” prosecutor. Having listened to and watched MSNBC, CNN and FOX, all 3 covered the fact that there were FBI notes of pre-interview discussion about the intent of the interview. On 2 of the networks, the content of the intercepted phone call indicated no violation of any statute and were in keeping with normal conversations an incoming administration may have with other nations.

                If the FBI already had a transcript of the phone conversation, it appears they did, what was the intent of the interview? Much like if you had a phone conversation with an organized crime figure, I listen to the call and know you were discussing perfectly legal subjects. I discuss with my boss and coworkers that I might interview you in an effort to get you to lie. That smacks of entrapment.

                If I am not investigating an underlining predicate criminal act I have no reason to interview you.

                [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Mike” or “Michael.” Thanks. /~Rayne]

                • bmaz says:

                  Well, I am at a loss too. I have been practicing criminal law for over thirty years, and I have seen it before multiple times. Not just in my own jurisdiction, but by Judge Sullivan himself previously. In fact that crazy noisy Fox News lawyer Sid Powell even wrote a book praising Sullivan for it. And, no, the conversations were NOT perfectly appropriate and only an idiot would not investigate them. Where are all you little trolls coming from? Are you paid to spew bullshit, or just ill informed?

                • civil says:

                  Re: “if the FBI already had a transcript of the phone conversation, it appears they did, what was the intent of the interview?” —
                  A few people were aware that Flynn had discussed sanctions with Kislyak (this info presumably came from the call transcript) and that Flynn had also told Pence that he hadn’t (this info came from Pence saying so on Face the Nation ~1/15/17), and they were concerned that Russia would know that Flynn had lied to Pence and have leverage over him. This is discussed in some of the transcripts that were released recently by the House, some of which were also appended as exhibits in the Motion to Dismiss. So as best I can tell, the interview was largely to determine whether Flynn was compromised.

                  • civil says:

                    Re: the exhibits, I was likely confusing House transcripts, other transcripts, and 302s when I wrote “This is discussed in some of the transcripts that were released recently by the House, some of which were also appended as exhibits in the Motion to Dismiss.” I should have just said that it’s also discussed in some of the exhibits.

        • Peterr says:

          Shea and today’s DOJ would have a leg to stand on if they had not repeatedly agreed to that plea and provided Sullivan with a proper sentencing recommendation. Given they did, and that Flynn TWICE pled guilty, that kind of leaves both Flynn and Barr without a leg.

          If nothing else, Sullivan has a perfect right to find out who has been lying in his courtroom over the last 18 months, because the things being said today are completely at odds with what’s been said to Sullivan under oath in the past.

          But thanks for playing.

          • bmaz says:

            This is starting to bug me. Flynn did NOT “twice plead guilty. There was ONE plea, with an allocution, and reaffirmations of the initial plea allocution on the record, including an oath.

    • bmaz says:

      There are no good answers as to that question. The petition should have been summarily denied, so there are some ominous signals. We shall have to wait and see how it plays out. Your prior comment may be correct. It is not always easy to know who and what you are dealing with. The proprietors of this blog have been around forever; for good or bad on any given issue, we are pretty established commodities.

      One final thought, Glenn is a common name and one that gets referred to around here often. I know you are not that “Glenn”, but would you do us a favor and maybe go by “Glenn X” or something you are comfortable with so that nobody confuses you with Greenwald? Thanks.

  2. harpie says:

    The DC Circuit […] instructs Sullivan to respond to Flynn’s petition within 10 day (so May 31), specifically citing US v. Fokker Services

    I realize that’s also one of the cases Sullivan himself mentions in his order appointing Gleeson….but [ack!!!] what does it all mean?

      • jdmckay says:

        Marcy also quotes from Powell’s mandamus petition

        As Judge Posner wryly noted in the above-cited case, “The judge . . . is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” Id. at 453. Here, that person is the signatory of the Government’s Motion to Dismiss, the United States Attorney for the District of Columbia. Like the district judge in In Re United States, the district judge below has taken over the role of prosecutor. “Mandamus serves as a check on that kind of ‘usurpation of judicial power.’” Fokker Servs., 818 F.3d at 750.

        Looks to me like DC wants Sullivan to justify allowing amicus. Seems like now, spotlight is turned on Sullivan and away from Flynn. I wonder if this has ever happened before? Seems bizarre, like one court cannibalizing another.

        • civil says:

          Re: “Looks to me like DC wants Sullivan to justify allowing amicus,” no, Flynn’s lawyer wrote “Petitioner respectfully requests a Writ of Mandamus ordering the district court to (1) grant the Government’s Motion to Dismiss with prejudice, ( 2) vacate its order appointing an amicus curiae, and (3) assign the case to another judge for any additional proceedings,” but the DC Circuit has only specified that Judge Sullivan address issue #1:
          “it is ORDERED, on the court’s own motion, that within ten days of the day of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020.”

    • Dmbeaster says:

      Fokker would not seem to be applicable. Its a judge getting cranky about the DOJ opting not to bring a case against corporate officers and only the corporation. The judge then denied a motion that sabotaged a deferred prosecution agreement. The court reversed, indicating that the judge has no role to play in charging decisions, so had no proper basis for denying the motion.
      Rule 48 gives the judge discretion in ruling on this motion to dismiss after a guilty plea. Does Fokker wipe out that discretion? Is it still a “charging decision” after a determination of guilt? The question is what is the standard governing what the judge may consider in ruling on the motion to dismiss. Lawfare has an interesting analysis. https://www.lawfareblog.com/judge-sullivan-can-reject-governments-motion-drop-flynns-case

      • emptywheel says:

        I really think all the analysis of this misses the estoppel problem.

        DOJ said one thing. Now DOJ says the opposite. And the basis on which DOJ has changed its mind is transparent bullshit. They’re not allowed to just change their name for no reason.

          • earlofhuntingdon says:

            Estoppel means you had your chance and missed it, things have moved on, and people now depend on you not doing that thing. The greater harm comes from disturbing those new expectations.

            • vvv says:

              I hope I’m not estopped from, nor have I waived, agreeing with your more accurate definition.

        • Keith Harbaugh says:

          “the basis on which DOJ has changed its mind is transparent bullshit.”

          That really is not proved.

          Two points:

          1 There was nothing whatsoever wrong with the Flynn/Kislyak conversation. The FBI’s only plausible reason for requesting the interview was, as FBI assistant director of counterintelligence Priestap mooted, to set a perjury trap. If Flynn requested the Russians not escalate, what’s wrong with that? What Flynn was trying to protect was worth protecting.

          2. Regarding Flynn’s guilty plea, and the rationale for withdrawing it, please read paragraph 34 of Document 160-23 on Flynn’s district court docket to understand the situation he was in.

          • bmaz says:

            Oh goody, and yet another Flynn troll is here to pitch patent garbage. Hey Kenny boy, we have read it all. Yes, it was indeed wrong to be covertly undermining the current President and his administration. And any administration would be derelict to not investigate that.

            And, no, there is no such thing as a “perjury trap” here. Only an idiot would regurgitate that stupid bullshit. For one, it was false statements and, yes, it is a felony to lie to a federal officer. People are prosecuted for this every day in every district in the country.

            I’ve read everything, and contrary to you, actually do this for a living, and your citation is garbage. Thanks for dropping by, there sure are a lot of you little trolls lately!

            • Rayne says:

              What is it with these buttheads who don’t understand we only have one president at a time? And that the Logan Act prohibits unauthorized foreign policy negotiations between US citizens and countries with which the US has active disputes?

              The really stupid part: all they had to do was wait. Team Trump could have had a noisy meeting at Mar-a-Lago expressing their intent and the Russians would have heard everything, knowing to be patient. But Team Trump is stupid, and Team Putin wanted the ensuing fracas for the purpose of demoralization.

            • Keith Harbaugh says:

              “your citation is garbage”
              Really? This is what a commentator below considers proof?
              I really had expected a higher level of ability to offer rational argument.
              I was wrong.

              • Rayne says:

                You couldn’t be bothered with a cut-and-paste or screenshot excerpt to make your case let alone a link but the community here is supposed to take you at your word?

                Sure. Right. ~eye roll~ It’s not just the contributors/moderators for whom the quality of citations and sourcing are necessary.

                • Keith Harbaugh says:

                  My comment above was a reply.
                  The quotation was from
                  that to which I was replying, namely,
                  a reply by bmaz, timestamp May 22, 2020 at 12:14 pm,
                  to my comment that started this thread.

                  • Rayne says:

                    I can read your entire exchange from the publicly viewable page or from the backend of the content management system. And your citation is crap along with your skills of persuasion.

          • Rayne says:

            If Flynn requested the Russians not escalate, what’s wrong with that?

            He did it for the president-elect, not the president. Flynn was NOT authorized to act on behalf of the U.S. at the time of his communications with Kislyak. He’d also been pointedly warned by DIA this was prohibited.

            We have one president at a time. If this fundamental concept is discarded, anyone could negotiate with other now-unhappy countries right the fuck now to undermine the current administration. Would that be okay with you? Shall any American right now begin to negotiate trade for post-Trump with China in contravention to the Trump administration’s current trade limitations?

            • AndTheSlithyToves says:

              lolol Thank you, Rayne and bmaz! It really helps to have you break the disinformation frame and lay out the issue succinctly, then prove or disprove it.

              • Rayne says:

                What pisses me off is that Flynn wasn’t prosecuted for violating 18 USC 201(a)(1) even though it was clearly an issue for him since he questioned it, causing DIA to issue a letter explaining limitations which appeared to have been explained to him previously. What likely prevented prosecution on this point was his role at DIA before he left and whether it directly related to Russia or Turkey.

                But no matter what the fuzzy reason not to prosecute him under 18 USC 201(a)(1), Flynn still ignored the law regarding receipt of compensation — consulting fees, gifts, travel expenses, honoraria, or salary — from foreign governments without congressional consent. [Insert photo of Flynn at RT dinner in Moscow in 2015]

                The cooling-off period outlined by DIA was likely breached as well — again, he skated on that with much of the case against him based on his work during 2016. His contacts were likely initiated before the end of the cooling-off period and may have been part of the leverage held on him.

                The letter from DIA “respectfully reminded” him of his obligations. He chose to ignore multiple warnings.

                Flynn displayed on exit from the military and into his retirement the same blatant disregard for laws and regulations he showed during his military career and he still hasn’t been adequately punished for it. He continues to be a horrible example of leadership for our current and former members of the military.

                Meanwhile the trolls are beating on the doors in the background, “But they didn’t have any reason to investigate or question him! He didn’t do anything wrong!” Ri-ight. Sure. Uh-huh. Can only imagine the full scope of material the intelligence community collected which says otherwise and the public may never see to shield means and methods.

      • earlofhuntingdon says:

        Fokker held that a trial court had virtually no authority to withhold consent for a deferred prosecution agreement between the prosecution and a corporate defendant. Mere disagreement by the court with its terms (frequently for being too lenient) was not adequate. The court could withhold consent, in effect, only where an agreement contained illegal provisions.

        Specifically, a trial court could not withhold consent to a term in a DPA that tolled or suspended the statutory requirement for a speedy criminal trial. A DPA tolls this requirement during a probationary period, during which a corporate defendant is attempting to demonstrate its good faith and compliance with the law. One purpose is to avoid having a public criminal trial in the first place. The period can be months or years long.

        Fokker also held that the DCC could direct a trial court to approve the tolling of that speedy trial requirement, in order to give the defendant an effective remedy. It was an exasperated, overly expansive decision (per the cited HLR article). It included a lot of dicta – reasoning that was not essential to its decision – which should not be controlling law in the DC Circuit.

        Flynn is different from Fokker in many ways. One is that Sullivan hasn’t yet ruled on the Motion to Dismiss. He is reviewing it and other matters of fact and law, and has set a timetable expeditiously to do that. Powell (and Barr) wants to circumvent that process entirely by having the DCC direct Sullivan to consent to the DoJ’s motion, shoving everything else into the memory hole.

        • earlofhuntingdon says:

          This lawfare article, cited earlier, expands the argument to limit Fokker and support the view that Sullivan has abundant authority to consider, rule on, and reject the DoJ’s motion to dismiss. Don’t tell bmaz, but it says Flynn pleaded guilty twice.

          For one thing, Flynn’s case is not in a pre-trial phase. He has pleaded guilty, affirmed it, and is about to be sentenced, which, “is a matter for discretion of the trial judge.” It inverts the constitutional concern in Fokker, saying that for the DoJ (or DCC) to intrude on Sullivan’s authority now does not imperil the executive/prosecutor’s power, but that of the judiciary.


          • vvv says:

            A perhaps interesting point of trivia is that *Fokker* cites with approval the case of *United States v. HSBC Bank USA, N.A* which had some related issues (again, however, concerning a DPA). The trial judge in the underlying case of that latter appeal was J. Gleeson.
            (I’m not some kind of great or experienced legal mind such as the ones that actually are at this site – I caught a note in a case summary …)

    • harpie says:


      Marcy, about 2 hours ago:
      [twitter dot com] emptywheel/status/1263897116952399872
      2:18 PM · May 22, 2020

      I find this more compelling than the 1000 prosecutors one. [link]

      Links to:
      12:32 PM · May 22, 2020

      “The government’s motion improperly seeks to make this Court complicit in the Executive Branch’s inexplicable about-face in the Flynn prosecution.” Honored to sign this brief alongside [many others] https://justsecurity.org/wp-content/uploads/2020/05/Amicus-Barr-Flynn-Draft-5-22-20-final-final.pdf []

      [p21] Moreover, the sentencing phase of a criminal proceeding is uniquely within this Court’s purview. As the D.C. Circuit explained, in a decision that has been repeatedly mischaracterized by Mr. Flynn and his supporters,

      “the Executive’s traditional power over charging decisions” exists simultaneously with “the Judiciary’s traditional authority over sentencing decisions.” United States v. Fokker Services, […]

      By recognizing the court’s role in the sentencing context, which is part of the judiciary’s authority protected by the separation of powers, Fokker Services exposes [p22] the lacuna in the government’s motion, which entirely fails to appreciate this Court’s supremacy at the sentencing phase.7 […]
      [7 The D.C. Circuit’s decision in Fokker Services supplies no authority for the government’s motion to dismiss; it involved a deferred prosecution agreement rather than a guilty plea (let alone two).] […]

  3. Zinsky says:

    I’m not a lawyer but I feel badly for Judge Sullivan, having to deal with all these slimy people. Mike Flynn is a creepy, arrrogant wife-beater type and that wackadoodle attorney of his belongs in the freak show at the circus. Low-life right-wing tools aplenty (like Donald Trump), as well, commenting about things they know nothing about. Sad. The buffoon-in-chief would have you believe Mike Flynn being “unmasked” was some sort of heinous crime, which makes it all the more surreal. I think Sullivan should give Flynn the death penalty and then promptly retire. That would give the frothy right doorknobs something to howl about!!

  4. Rugger9 says:


    This is one where it appears that the DCC struck down courts interfering in the negotiation of a deferred prosecution agreement (DPA) and about charging. IANAL, but my skim through this is that in frequently referring to prospective plea deals it differs from Flynn’s case in that Flynn’s already pleaded guilty, twice, and would not be in the “pre-trial negotiation” phase.

    However inconvenient, I am sure Judge Sullivan is up to the task for writing the response, and I wouldn’t be surprised if he has more time free to do so.

    • dude says:

      I am not a lawyer. I read the Harvard Law Review article you cited. It refers to the precedent set or implied by Fokker as relevant to “corporate criminal law” in several passages. How is Flynn a “corporate” criminal?

      • Rugger9 says:

        He’s not unless TrumpOrg counts somehow as a dotted-line connection. My read as well (and IANAL) is that Fokker’s time in the legal process is before guilt had been decided, and with Flynn’s guilty plea re-allocuted that time is also past. One wonder’s if this is Judge Reo grasping at straws and the other two letting her do it to teach her a lesson.

        I have no doubt that Judge Sullivan saw this coming as others have noted, otherwise I do not think he would have been as careful in getting Flynn to say what he did in court. And as others have noted there is nothing that should allow anyone to lie to a judge and walk away from it. That’s kind of a stand-alone bit of (at least) contempt and that is one thing Judge Gleeson was tasked to find out.

        FWIW, I also would not be surprised to see Gleeson ready before June 1 as well, unless there is some other filings to come.

    • Peterr says:

      I wouldn’t be surprised if Sullivan didn’t have at least an outline prepared before he named Gleeson. It wasn’t at all shocking that Powell filed this motion with the DC Circuit, and Sullivan likely saw it coming a mile away.

    • blueedredcounty says:

      You are going to trigger bmaz again…please make SURE you understand Flynn pleaded guilty ONCE and has allocuted to that plea (under oath) a second time.

      The second time he not only reaffirmed his plea, he acknowledged his previous legal counsel had provided competent guidance, and refused the offer of Sullivan of outside counsel to review his situation and provide different guidance. And I believe he also affirmed he was forever giving up his right to contest these statements.

      Marcy, bmaz, I am not an attorney and I apologize if I am asking a stupid or inappropriate question. I understand how important all the protections are that are built into the system. What I don’t get is why Powell’s conduct has not subject to an earlier or immediate check?

      Per your earlier comment, bmaz: “And, no, Flynn would not have “a leg to stand on”, at least not as to a common §1001 false statements charge. His cases are shit, and his current lawyer absolutely crazy.” I know this is both your personal and professional opinion, but it has been echoed by other commenters who are attorneys/lawyers/have law background. At what point does she face consequences for submitting filings that make it clear her client had to have committed perjury in front of this court at least once? Either he was lying when he pleaded guilty, or he is lying now. And if he is lying now, is she suborning perjury? And what is the appropriate remedy for an officer of the court conducting illegal activity. This is far beyond the boundary of advocating strenuously for your client.

      • emptywheel says:

        He expressed some impatience with her in December, but I think given how inflamed this is he really doesn’t want to go there.

        I think DOJ is in as bad a position as Powell at this point.

        • Peterr says:

          He may also have looked at this whole mess and said to himself “I don’t need to go there now – I can go there when they make their inevitable mandamus filing.”

      • bmaz says:

        Blueedred – I don’t have any idea here. I know what would expect to normally happen, but this is already well beyond that. Not a very satisfying answer, but all I got.

  5. madwand says:

    So if I read federal court due times right, 1 June is when Sullivan has to reply? Incidentally and this has nothing to do with the court case, but apparently Graham requested from Grinell the identity of whoever requested that Flynn be unmasked for the Dec 29 call, an FBI intercept, as EW has related. Apparently Flynn was never masked for this call (From Delanian, MSNBC) and Graham has requested a written verification of that.

  6. The Old Redneck says:

    Here’s the entire order:

    No. 20-5143
    In re: Michael T. Flynn, Petitioner
    September Term, 2019 1:17-cr-00232-EGS-1
    Filed On: May 21, 2020
    United States Court of Appeals
    Henderson, Wilkins, and Rao, Circuit Judges
    Upon consideration of the emergency petition for a writ of mandamus, it is
    ORDERED, on the court’s own motion, that within ten days of the date of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020 (ECF No. 198). See Fed. R. Crim. P. 48(a); United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016). The government is invited to respond in its discretion within the same ten-day period.
    The Clerk is directed to transmit a copy of this order to the district court.
    Per Curiam
    Mark J. Langer, Clerk
    BY: /s/
    Laura Chipley
    Deputy Clerk


    This is so brief that it’s hard to tell what it means. My guess, and it’s just a guess, is that’s a bad sign for anyone hoping they’ll allow Sullivan to punish Flynn. Otherwise, they might have just let him keep his briefing schedule.

    • earlofhuntingdon says:

      Succinct and, I think, largely correct. Fed. R. Crm. P. 48(a) relates to the prosecutions withdrawal of charges. The panel is citing US v. Fokker as controlling law on the prosecution’s constitutional authority to withdraw those charges. Bmaz would be better placed to critique how controlling Fokker is on the facts of Flynn, but it seems distinguishable.

      • timbo says:

        What’s missing is whether or not DOJ has the right to effectively pardon Flynn for any crimes that he has plead guilty to in Federal Court. Hopefully they do not have such an ability to do so. The Constitution does not give them that power nor should the Federal Courts give them that power.

  7. punaise says:

    These increasingly desperate and frustrating whack-a-mole maneuvers seem orchestrated to this non-lawyer. Is that just an obvious truism?

    • Peterr says:

      If it’s orchestrated, it’s a really bad community orchestra with a conductor who doesn’t know which end of the baton to hold and which to wave, and players who have trouble repeatedly counting to four.

        • MB says:

          pandemic tip for musicians: use JamKazam (easy to find, google it). Zoom is OK for remote conversations but has too much internet latency (> 40 ms) for musicians to play together coherently. On the other hand, JamKazam, while far from perfect, works pretty good about 85% of the time. These days, I’m playing more music from home remotely with other musicians than I was pre-pandemic, in person. Funny, that.

          • TimH says:

            OT, but I have noticed that random strangers have appeared more pleasant (typically in acknowledging moves to distance etc in passing by) as opposed to pre-Covid ignoring-with-suspicion.

          • punaise says:

            Cool – thanks for the heads up. I was citing Zoom somewhat gênerically, but this sounds a lot better.
            Our ragtag group of amateurs doesn’t necessarily have the chops to pull that off, but it could be fun to try.
            Along the lines of what you mentioned, with a group friends in Berkeley, Toronto and Portland we have managed some decent composite cover songs by recording exchanging and editing .wav files in GarageBand.

            • vvv says:

              I have long been doing the file upload/download thing with others around the US and in Europe. I’m currently working a project with a guy in London, England and a guy in Commanda, Canada. And I’m setting one up with a Grammy-award producer guy in LA and that will have probably some others on it … and there’s a guy in Houston supposed to send me some drum tracks …
              We use Dropbox and WeTransfer and the like.
              It is, of course, not simultaneous but not also not entirely dis-similar to making a studio recording. I have published 30 songs on my bandcamp since this covid crap started, and thus nearly maintained my sanity.

              • punaise says:

                Excellent – that’s inspiring. Our friend in Toronto – an actual pro – has paid session gigs that way.

                We have some vanity studio time booked in October, and this approach to putting a song together this way brings a level of discipline that should benefit that effort: learning to work with a click track, layering on instruments , etc.
                I just started using Reaper (transitioning from GB / Mac) and am trying to learn how to create drum tracks. Steep learning curve for an old fart.

                Needless to say, we are keeping our day jobs.

                • vvv says:

                  Just this AM the Canadian guy (retired CPA, now a pro musician) sent me upright bass, guitar, and a couple banjo and a bongo adds to 5 originals demos I had sent him on Tuesday. I just listened to his roughs and he is so damn good … He is sending me (using Google Drive) the individual tracks for me to mix down and publish; I’m very excited.
                  This is a hobby for me, but it’s really more an obsession.
                  BTW, I use Reaper at times – I’ve been doing alla this for some years, if you have questions. I s’pose we’d have to work out a way to exchange emails … I might have an idear how …

                  • punaise says:

                    That sounds like next level collaboration and talent. Would love to hear it.

                    Do tell, re connecting privately. Wouldn’t want to burden the mods with go-between requests to share email addresses. Is there any other way?

                    • vvv says:

                      I hope this is OK. On Bandcamp, I go by “Vlayman”; there’s a contact point there – eliminate the asterisks.

                    • punaise says:

                      self-outed, buried deep in an old thread… but still!
                      I will try to find my way there :~)

      • P J Evans says:

        and a few seem to think that three is enough.
        (I spent three years in band in junior high – concerts and parades both.)

  8. BobCon says:

    Can anyone clarify who specifically decided this course of action after the Flynn petition?

    Was it the entire DC Court, who then assigned it to the three judges? Or did the court assign the petition to the three judges who then ordered Sullivan to respond?

    And once the threesome rule, is that it? Or does it potentially go to the full DC court (and then potentially get Supreme review)?

  9. The Old Redneck says:

    It was a three-judge panel. That’s normal. You have to ask for, and receive if they’re interested, a review by the entire crew.
    The weird part is, because the parties aren’t in the usual adversarial position, I’m not sure what happens next. Who appeals? God knows. I think Sullivan explains why this is different and then we all see what happens. But I’d defer to anyone who gets deep into federal appeals.

    • Das Robot says:

      It’s very weird. From what I’ve read I don’t see how they just didn’t throw it out because it doesn’t seem Folker is actually comparable to what is happening here. How an appeals court would side with the mandamus doesn’t make sense to me because the Judge certainly has authority to determine whether there has been contempt in his own court I rekon. I’m just guessing but it’s interesting…

    • Das Robot says:

      With a 7-4 dem appointed crew I’d guess it would be received better but I don’t know. The panel may not rule any differently – I like to believe the whole deal works fairly.

    • earlofhuntingdon says:

      I would not underestimate Judge Rao’s zealotry. She’s on the panel. Any decision by the full bench would likely be more measured.

      • Das Robot says:

        Yeah I get it’s likely to get her posing for Trump but I would just guess Wilkins and Henderson wouldn’t. I wonder what goes on when they’re deliberating. Whether Garland or any of the others weigh in over lunch and whatnot. I guess we won’t have to wait long. Can Sullivan just ignore it and proceed anyway?

        • Rugger9 says:

          As I understand a writ of mandamus, Judge Sullivan would be directed to approve the DOJ withdrawal, so he really would not be able to ignore it. From Cornell’s law library:

          “A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion…”

          • Das Robot says:

            Hmmm. Yeah but after looking at Henderson’s record she may not be better than Rao. I suspect they’ll accept the mandamus 2-1. Unfortunate but maybe I’m wrong (as he whistles past the graveyard…).

  10. OldTulsaDude says:

    This evening I talked to my lawyer daughter and her take on this was that the appeals court has only signaled its intentions to fast track their decision, nothing more ominous than that.

    Let’s hope.

    • earlofhuntingdon says:

      Judge Rao probably disagrees with that sanguine assessment. If the process were that normal, the DCC would have denied Powell’s writ as premature and let Sullivan finish his job, so that the appellate process could properly begin.

      But the process engineered by Barr means to prevent Sullivan from completing that job and the public record, which would bring accountability closer to Trump. It is designed to avoid that accountability, and to defend Trump, the unitary executive, and the party, whose prospects as a shrinking minority depend on it. Getting Flynn off is a collateral expression of the power of that executive.

      • Rugger9 says:

        I’m looking forward to Judge Rao’s dissent, since I can’t see any actual legal scholars approving the writ based on the filing.

          • vvv says:

            Should it be 2-1 (3-1 seems unlikely, but you never know) with Rao’s predictable position prevailing, what are the odds of a request for an “en banc” hearing?

            Is that a request that Judge Sullivan could even make?

            And if so, well, there would be some additional delay involved …

  11. PeterS says:

    I wonder if this would have generated so much excitement if the court hadn’t “ordered” Sullivan; if instead they’d said, “look old chap, we wonder if you’d mind saying something about that Fokker case, would 10 days be enough?”. But “order” is the only available legal jargon.

    I guess the DOJ were only “invited” to comment because this matter is in effect Flynn v. Sullivan.

    But I could be wrong…

  12. Peter G says:

    Judge Sullivan should have known that the present Flynn lawyers would not sit quietly by. I just read the Mandamus Petition which details an extraordinary tale of corruption involving the Obama FBI and DOJ.

  13. PhoneInducedPinkEye says:

    This was mentioned by others but I didn’t see a reply… Do any of the lawyers here know what happens if Rao and the GH appointees side with Flynn as far as Sullivan appealing? Could Sullivan appeal to the full panel if the 3 judge panel rule for Flynn?


    • Das Robot says:

      Ianal but I think this is it…
      (a)When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or(2) the proceeding involves a question of exceptional importance.

      (b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing enbanc.(1) The petition must begin with a statement that either:(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or (B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.


      • vvv says:

        I asked about this above, as I do not know if it is limited to “A party”, or if Judge Sullivan qualifies as to the issue(s), or has other standing …

          • PhoneInducedPinkEye says:

            That’s what I’m wondering, if a judge can appeal such a thing, and if a judge would be likely to, especially in such a charged case.

            • Das Robot says:

              My guess would be he would if they somehow review in Flynn’s favor. The judge has to protect himself while the doggies are whimpering for a Supreme appointment (Henderson, Rao – it’s easy for a crackpot to get confirmed now so they have less constraints). They’d basically be trampling on his authority without justification IMO. I also wonder if they can split their decision (sever??) re the mandamus by allowing the judge to rule on contempt. Think I’ll look to see…

Comments are closed.