The three judges (Henderson, Wilkins, Rao) on the DC Circuit Court of Appeals have approved a writ of mandamus ordering Judge Emmet Sullivan to dismiss the case against Michael Flynn. Judge Rao wrote the opinion for the majority. The decision can be found here.
The panel ruled that U.S. District Judge Emmet Sullivan overstepped his authority in not accepting the unopposed motion and in questioning the prosecutors’ decision.
The Justice Department decided to drop the Flynn case when it discovered atrocious misconduct by the original prosecutors who suppressed extraordinary exculpatory evidence of Flynn’s innocence. And this had nothing to do with the fact that Flynn was set up from the beginning.
“It is apparent that crucial facts were withheld from General Flynn in violation of Brady v. Maryland (373 U.S. 83, 1963), and wrongful pressure was applied to coerce his plea of guilty,” according to Flynn’s brief (Page 17). All of this was deliberately concealed from the court, although the judge seems utterly unbothered by it.
In effect, what the appeals court is saying is that under the law, Sullivan cannot conduct an inquisition into the decision-making or motives underlying the motion to dismiss. He can permissibly review the Justice Department’s stated reasons in its 20-page brief that was supported by 86 pages of newly discovered evidence. But even if Sullivan disagrees with those reasons and believes they are unwise or incorrect, he is constitutionally powerless to force the government to proceed with its prosecution.
Judge Rao got to the heart of the matter when she noted that the decision to bring charges or drop them is solely an executive branch function. It cannot be countermanded by the judicial branch without violating the constitutional separation of powers. Sullivan has no authority to pursue the case on his own accord. Rao notes,
“Finally, each of our three coequal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice,”
Rao also noted,
“…there is no justification to appoint a private citizen to oppose the government’s motion to dismiss Flynn’s prosecution. See Newman, 382 F.2d at 482.3”
Subsequent to this, Judge Sullivan issued an order halting all proceedings against retired LTG Michael Flynn. “In light of the Opinion and Order issued by the Court of Appeals on Mr. Flynn’s petition for writ of mandamus, the deadlines and hearing date set forth in the Minute Order of May 19, 2020 are HEREBY STAYED.”
What happens now? Sullivan could issue the order dismissing the case with prejudice. That means Flynn could not be tried on these charges again. Sullivan could ask for a review en banc, that is, by the entire Appeals Court. A judge within the Appeals Court could ask for the en banc review. According to sources, at least six judges would have to agree to the en banc request for such a hearing to take place.
Michael Flynn is a victim of Democratic shenanigans. Evidence of his innocence was hidden from him for years. It appears that his original representation had a conflict of interest that was not dismissible. Unscrupulous prosecutors threatened to charge his son unless Flynn copped a plea. They crushed him financially as he tried to defend himself. With mounting legal bills, he was forced to sell his home. He finally surrendered under the intense emotional strain and monetary pressures.
The reason for all of this? To keep Flynn, as NSA, from uncovering the attempt to rig the 2016 election as well as the ongoing investigation into the Trump administration that has been labelled as an attempted coup.
Hopefully this will all be over soon for LTG Flynn. Once it is, the gag order on Flynn will expire. Perhaps then we can find out more about the traitorous activities of the previous administration.