As Twitchy reported earlier, a three-person appeals court panel gave Michael Flynn judge Emmet Sullivan until June 1 to explain what the court should do with Flynn’s emergency request to force the dismissal of his case. That flies in the face of Sullivan’s plan to have his own “prosecutor,” retired Judge John Gleeson, file an amicus brief by June 10 explaining how Flynn could be charged with contempt of court for perjury.
John Huber has weighed in on the legalese and explained just what this means for Sullivan.
A few comments about the US Court of Appeals for the DC Circuit’s order to Judge Sullivan to respond to Powell’s Writ of Mandamus
THREAD pic.twitter.com/CfFfZwJsRC
— Undercover Huber (@JohnWHuber) May 21, 2020
Powell is Sidney Powell, Flynn’s attorney.
The Court didn’t respond on its own to Powell’s motion. They want to have Sullivan’s views on the table making his *own* case before deciding on the merits pic.twitter.com/vqD6i9hIuY
— Undercover Huber (@JohnWHuber) May 21, 2020
That is going to force Judge Sullivan to put his cards on the table. Because he hasn’t actually denied the DOJ’s motion to dismiss. He’s just left it sitting there & invited “amici” to argue against it. That suggests he doesn’t agree, but doesn’t *say* it. Now he’ll have to say
— Undercover Huber (@JohnWHuber) May 21, 2020
“Within ten days” is by June 1, which is way before the oral arguments Sullivan scheduled himself in the district court (June 10). Suggests the Appeals Court wants this decided ASAP pic.twitter.com/p2gGsk0CiX
— Undercover Huber (@JohnWHuber) May 21, 2020
The Court specifically invited the DOJ to respond to the Writ as well. Barr joining Powell’s side in arguing to dismiss the case will make it much more powerful than on its own, if he takes that opportunity (which I suspect he will) pic.twitter.com/RExQzYzZkg
— Undercover Huber (@JohnWHuber) May 21, 2020
The Court ignored two of Powell’s arguments – to order Sullivan to vacate his order appointing amici, and to remove the case from Sullivan – and wants to make it about the core issue: granting or not granting the DOJ’s motion to dismiss the case. This makes sense & simplifies it pic.twitter.com/VcXQGhFUkn
— Undercover Huber (@JohnWHuber) May 21, 2020
The Court cites two authorities that it wants Sullivan’s response to address – Federal Rules of Criminal Procedure 48(a) (rules on Dismissal) and US v Fokker. Both of these were cited by Powell in her Writ and both strongly support her case and that of DOJ’s pic.twitter.com/MyWrdA7PhI
— Undercover Huber (@JohnWHuber) May 21, 2020
Some background on the three judges who will decide the Writ here https://t.co/FTpWrl6VFr pic.twitter.com/742HRdI7KT
— Undercover Huber (@JohnWHuber) May 21, 2020
Overall, this is a positive development and will at least force Sullivan to stop playing games and address the core issue of the DOJ’s motion to dismiss, which he’s being trying to wriggle out of. Doesn’t mean Powell will win (that’s a high bar), but a good start
/ENDS
— Undercover Huber (@JohnWHuber) May 21, 2020
Can't wait to see what Judge Sullivan files in response to this. pic.twitter.com/CJGXO3E60o
— Brian Cates //Flynn & Breitbart's Army! (@drawandstrike) May 21, 2020
There was still time for Sullivan to fold and just do his job before this Court made this ruling.
Now he's STUCK.
Now he has to respond to Powell's Mandamus filing in writing with a response of his own and he's got 10 days to do it in.
What **rational**response could he make?
— Brian Cates //Flynn & Breitbart's Army! (@drawandstrike) May 21, 2020
Note that in it's order to Judge Sullivan to respond to the Mandamus appeal Powell made, the Court of Appeals directly references Fokker, the key court case that illustrated that district judges don't get to play prosecutor & refuse to follow the law.
— Brian Cates //Flynn & Breitbart's Army! (@drawandstrike) May 21, 2020
Sullivan will double down. They always do. 10 days for Team Swamp to craft a response. 10 days to conjure up the talking points and get them out to their media friendlies. It’ll all be BS & everyone will know it, but the goal is to keep Flynn tied up & off the chessboard.
— themooseisloose (@Timmymoose) May 21, 2020
Sullivan’s response will boil down to this: “Uhhhh…Ummmm…Whaaaaa! They are mean trying to dismiss this case! This is my case, I set the rules!” As that is all he has.
— Thomas Craig (@tomwcraig) May 21, 2020
In other words, he's right where we want him – unmasked for all to see his rank corruption.
— Victor Laszlo (@VictorLaszlo8) May 21, 2020
I always thought a Judge was in a court to oversee the proceedings. Where in Law does the Judge become the prosecutor. That truly is a "CONFLICT of INTEREST". How can the scales of Justice be balanced in a scenario of this nature. Can a Judge not bring the Law into disrepute ?
— It's all about TRUTH (@ItsallaboutTRU2) May 21, 2020
Criminal contempt is an unusual legal widget, in part because it does in fact give the judge the power to be prosecutor. Criminal contempt has a long and interesting history. Codified in US Codehttps://t.co/9oi3cWgVCy
— Chuck Seyboldt (@cboldt) May 21, 2020
Think Sullivan’s gonna lob ball over net at COA by responding he felt he couldn’t rule on the motion without giving opportunity to interested parties to weigh in via amicus briefing. Puts COA in the hot seat w choice bn “no, you must now dismiss” or “ok, do the amicus briefing.”
— Pokey (@pokey_84) May 21, 2020
There is no allowance for amicus briefing in criminal case . The federal rule of criminal procedure clearly establishes that. If that is his line of arguement, he should be disbarred as a judge.
— 'Dipo (@Ayomitidipo) May 21, 2020
I suppose Sullivan willsay that it’s premature for him to take a position on the motion to dismiss because briefing is still open (e.g., his appointed judge hasn’t filed his “opposition” yet) and oral argument hasn’t happened yet. They should have made him address amicus order.
— Sailor Sam (@SailorSam_1) May 21, 2020
He dare not. Say that to the court of appeals. He'll get the rebuke of his life!
— 'Dipo (@Ayomitidipo) May 21, 2020
He could plead felonious stupidity.
— LuigiM (@LuigiM27275584) May 21, 2020
Orange Man Bad, therefore whatever
— TallDave (@TallDave7) May 21, 2020
Looks like Sullivan might have to spend the long Memorial Day weekend doing homework.
Related:
Appeals court panel gives Judge Emmet Sullivan 10 days to explain what he’s doing with the Michael Flynn case https://t.co/MJfYiqoTjZ
— Twitchy Team (@TwitchyTeam) May 21, 2020
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