In an 8–2 decision, the D.C. Circuit yesterday denied Michael Flynn’s petition for a writ of mandamus that would have ordered district court Judge Emmett Sullivan to dismiss the criminal charge against Flynn. While the majority’s opinion presented a methodical analysis, devoid of the partisanship Sullivan displayed in handling the case against Trump’s former national security advisor, only politics can explain the D.C. Circuit’s decision. Here’s why.
Flynn’s attorney, Sidney Powell, first sought a writ of mandamus from the D.C. Circuit after Judge Sullivan refused to dismiss the criminal charge against Flynn. The Department of Justice had filed a motion to dismiss the charge that Flynn had lied to FBI agents about his conversations with the Russian ambassador, Sergey Kislyak, after U.S. Attorney Jeff Jensen conducted an independent review of the Flynn prosecution.
Jensen’s investigation uncovered substantial exculpatory evidence that had never been provided to Flynn — evidence indicating Flynn had not lied to the federal agents and that, in any event, any false statement would have been immaterial.
In the mandamus petition, Powell argued that the constitutional principle of separation of powers, and under controlling circuit precedent, Judge Sullivan was required to grant the government’s motion to dismiss. A three-judge panel consisting of Judge Neomi Rao (a Trump appointee), Karen Henderson (a George W. Bush appointee), and Robert Wilkins (an Obama appointee), heard the petition. In a 2-1 decision authored by Judge Rao, the D.C. Circuit granted mandamus and ordered Judge Sullivan to dismiss the criminal complaint. Judge Wilkins filed a dissenting opinion.
However, rather than dismiss the case, Judge Sullivan filed a petition for rehearing en banc, asking the full D.C. Circuit to rule on the propriety of mandamus. A majority of the active judges voted to rehear the case en banc. That a majority of the active judges on the D.C. Circuit voted to grant rehearing en banc is startling—and inexplicable, absent politics being in play…
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