Michael Flynn Oral Arguments — Flynn Likely to Prevail in Federal Court after a Few Months, No Mandamus Order

The criminal law case of a former national security advisor in the Trump administration, Michael Flynn, is the subject of oral arguments before a three-judge panel at the United States Court of Appeals for the D.C. Circuit held yesterday.

But the issue before the D.C. appellate court is the conduct of the presiding U.S. district court judge, Emmet Sullivan, in United States of America v. Michael T. Flynn, (No. 20-5143).

Flynn has filed a May 19 Emergency Petition for a Writ of Mandamus that seeks an order that the criminal case be dismissed, per the petitions from both the U.S. DoJ and Flynn.

As Benjamin Wittes reports in Lawfare:

[T]he case before the D.C. Circuit’s remote hearing concerned whether the appeals court should preemptively order Judge Sullivan to dismiss the case on the theory that he has no authority to do anything else. Flynn’s lawyer, Sidney Powell, has asked the court for a writ of mandamus to compel Judge Sullivan to grant the government’s motion to dismiss, and the government is supporting Flynn. In other words, today’s case pitted both the prosecutor and defendant against—get this—the district court itself. The respondent in today’s case was none other than Judge Sullivan, who is trying to defend his authority to hold a hearing on the motion before him and to seek the input of a court-appointed amicus whom he named to argue against what both prosecutor and defendant want him to do, and to weigh in on the appropriateness of contempt charges against Flynn. Sullivan’s hearing is scheduled for July 16.

The litigation is extraordinary on several fronts, and its nature was signaled by Sullivan's bizarre musing and posturing in open court at a Dec 2017 plea bargain hearing.

Faced with the U.S. DoJ agreeing to a plea deal composed of a single criminal count with no jail time, Sullivan launched into a tirade against Flynn that questioned whether the DoJ had contemplated charges of treason, (The Guardian).

Sullivan's unhinged comments also included voicing his "disgust" and "disdain" towards Flynn.

To understand Emmet Sullivan, one needs to appreciate the political salience of the Democratic Party and intelligence community's determination to often smear politically unorthodox beliefs as Russian-inspired.

Sullivan is an unabashed partisan in a new McCarthyite effort to tar everyone from Flynn to Bernie Sanders to Tulsi Gabbard as Russian assets.

Self-dealing Sullivan is using his court to impose the end-game of his judicial scheming.

Sullivan seeks to delay Flynn's legal victory, gaming that a new administration would feature a new DoJ reaching different determinations in the criminal case, in accordance with Sullivan's charging preferences.