Michael Flynn Asks D.C. Circuit to Dismiss Case, Replace Judge

WASHINGTON, DC - JULY 10: Michael Flynn, former national security advisor to President Donald Trump, arrives at the E. Barrett Prettyman Federal Courthouse for a status hearing July 10, 2018 in Washington, DC. Special Counsel Robert Mueller has charged Flynn with one count of making a false statement to the …
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Michael Flynn’s lawyer filed a petition with the U.S. Court of Appeals for the District of Columbia on Tuesday, seeking a “writ of mandamus” to compel a federal district court to dismiss the charges against him, as the Department of Justice  (DOJ) requested last week.

Sidney Powell, the attorney who took over Flynn’s case after his previous lawyers had negotiated a plea bargain, filed the petition, which also asks the D.C. Circuit to transfer the case out of the hands of Judge Emmet G. Sullivan, and to cancel his request for amicus curiae (“friend of the court”) briefs arguing against dismissal.

Sullivan, who had previously asked prosecutors whether Flynn should have been charged with treason, balked at letting the case go. He invited amicus briefs from outside groups, including an anti-Trump group calling itself “Watergate Prosecutors.” He also appointed retired judge John Gleeson to argue against dismissal and in favor of finding Flynn in criminal contempt of court, after Gleeson co-wrote an op-ed in the Washington Post arguing against dropping charges.

Those moves drew immediate objection from Powell, who has now filed for a writ of mandamus. Her filing states:

Petitioner respectfully requests that this Court order the district court immediately to (1) grant the Justice Department’s Motion to Dismiss; (2) vacate its order appointing amicus curiae; and (3) reassign the case to another district judge as to any further proceedings.

The district court has disregarded the constitutional imperative of a “case and controversy” and the “separation of powers” that invests the power to prosecute solely in the executive branch. In the American system, the parties “frame the issues for decision” while the courts take the role of “neutral arbiter of matters the parties present.”

The district court has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing amici to perform the investigation or prosecution that the court deems appropriate. Less than two weeks ago, in Sineneng-Smith, the Supreme Court unanimously reversed a similar usurpation by the Ninth Circuit in an opinion authored by a venerable alumna of this Court [Ruth Bader Ginsburg].

The district court order appointing an amicus is both unauthorized and bespeaks a disturbing lack of appreciation of the court’s limited role when confronted with a motion to dismiss by the Government in a criminal case.

The Government, which has sole authority to dismiss this prosecution, has presented a well-documented motion explaining its reasons. The Government misconduct and Brady violations provide a more-than- sufficient basis for dismissal. An innocent man has been the target of a vendetta by politically motivated officials at the highest level of the FBI. The egregious Government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently.

The district judge’s orders reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the Government’s misconduct and threatening him with criminal contempt.

A footnote observes that Flynn’s original guilty plea was taken by a different judge, Rudolph Contreras, who happens to be friends with former FBI agent Peter Strzok, who played a key role in the investigation and procession of Flynn.

On Monday, Gleeson filed a motion with Judge Sullivan asking to have until June 10 to submit his amicus brief, meaning that the Flynn case could extend well into the summer unless his new motion were to be granted.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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