By Robert Willmann
In a short order on 21 May 2020, the federal Court of Appeals for the D.C. Circuit said that Emmet Sullivan, the trial court judge in the Michael Flynn criminal case, shall: "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 …."
What is eye-catching is that the court of appeals is focusing only on the motion to dismiss, and not the other issues regarding the appointment of John Gleeson as an amicus curiae to oppose the motion to dismiss and to gin up a contempt case against Flynn, and the transfer of the case out of Judge Sullivan's court–
The order cites the court of appeals opinion, U.S. v. Fokker Services B.V., which was discussed here on SST a couple of days ago in connection with the petition for a writ of mandamus filed by Flynn in the court of appeals . That opinion resulted in a mandamus order against a federal trial court judge who denied a request to waive the statute of limitations that was part of a deferred prosecution agreement between the government and a defendant. The opinion applied the principle that the executive branch has broad discretion to decide whether to file a criminal charge, which one to file, and whether to dismiss it, unless a charge is repeatedly filed and dismissed in order to harass a defendant, or the defendant objects to the dismissal. The discussion about having to get "leave of court" to dismiss a criminal case under Federal Rule of Criminal Procedure 48 is on pages 11-12 of the Fokker opinion–
Another item of interest in the order by the court of appeals is what it does not say. There is no mention of a lawyer who will represent the interest of the trial court judge in a response to the application for a writ of mandamus. In the Fokker case, the court of appeals had two lawyers act as amicus curiae to argue in support of the trial judge's decision during that proceeding. But who is going to write and file a response in support of Judge Sullivan's position? Will it be John Gleeson, whom Sullivan appointed as an amicus curiae to oppose the dismissal of Flynn's case? Are Sullivan's law clerks going to do it?
Keith Harbaugh has commented that in light of the existing law supporting the motion to dismiss Flynn's case, something else may be going on behind the curtain regarding Judge Sullivan's actions. I think that there is, but of course it is difficult to figure out. Sullivan appears to have personal animosity against Flynn, which can also make him susceptible to influence by others. It might be worse than that.
I thought of something recently regarding the fact that it was John Gleeson who was appointed to oppose the dismissal of Flynn's case and to address a possible contempt action against Flynn. But I have to do some more research on it.