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22 May 2020

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Jim

With former DOJ attorney, Beth Sullivan, having today filed her appearance in DC Circuit Court of Appeals, that's official.

She, on behalf of Judge Emmett Sullivan, who she is representing -- on Sullivan's dime, it appears -- not the government’s.

He, notorious of Lt. Gen. Michael Flynn case, as presiding judge in District Court case.

He who refused to approve DOJ motion to dismiss charge[s] against general.

DOJ, having determined much prosecutor misconduct, among other things, resulting in Mandamus writ that Flynn's attorney filed with appeals court.

And, appeals court demanding/ordering Sullivan to explain his action [or lack of it].

Attorney Wilkinson's Tuesday filing, in addition to saying she is Sullivan's personal counsel in this matter also verifies, it appears, the following:

She is acting as an "Appellee(s)/Respondent(s)".

[Of note: Wilkinson, on the court form, did not check off the box saying she was acting as “Appellant(s)/Petitioner(s).”]

For what it's worth, it's key to understand distinction between "appellant" and "appellee." This to understand Wilkinson's role [if any is granted by court] viz. Sullivan in particular. [Keeping in mind this is not a usual type of circumstance because of Mandamus.]

From Cornell law school, for usual cases viz. appellee and appellant distinction:

[[[Appellee
The party against whom an appeal is filed. The appellee usually seeks affirmance of the lower court's decision. By contrast, the appellant is the party who filed the appeal.

Suppose P sues D, and wins. D files an appeal. P is the appellee, and D is the appellant. If D wins the appeal, and P appeals, the roles are reversed. D becomes the appellee, and P is the appellant.]]]

https://www.law.cornell.edu/wex/appellee

Or, according to US Court of Appeals:

[[[Definitions
Appellant/Petitioner -- The appellant/petitioner generally is the party who lost in the district court/agency and filed the notice of appeal. The appellant/petitioner generally wants this Court to reverse or modify the judgment of the district court or agency.

Appellee/Respondent -- The appellee/respondent is generally the party who won in the district court/agency. The appellee/ respondent generally wants this Court to affirm the decision of the district court or agency.]]]

https://www.ca3.uscourts.gov/definitions

Cornell also says:

[[[Rule 31. Serving and Filing Briefs
(a) Time to Serve and File a Brief.

(1) The appellant must serve and file a brief within 40 days after the record is filed. The appellee must serve and file a brief within 30 days after the appellant's brief is served. The appellant may serve and file a reply brief within 21 days after service of the appellee's brief but a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing.

(2) A court of appeals that routinely considers cases on the merits promptly after the briefs are filed may shorten the time to serve and file briefs, either by local rule or by order in a particular case.]]]

https://www.law.cornell.edu/rules/frap/rule_31

These are normal, usual, basic rules: in a criminal case appellant would be someone accused of a crime; DOJ, the appellee as prosecutor.

The convicted criminal, the appellant, wants to appeal, and files an appeal; DOJ wants appeals court to affirm conviction, acting as appellee.

Things appear kind of reversed or upside down or backwards, in a way, in the Mandamus issue, re: Flynn and Sullivan.

Here, in place of "(1) The appellant must serve and file a brief within 40 days after the record is filed", we appear to have -- instead of Flynn appealing THE DEPARTMENT OF JUSTICE motion to dismiss – rather: appealing THE SULLIVAN refusal to dismiss it.

Here, in place of "The appellee must serve and file a brief within 30 days after the appellant's brief is served", we have instead the the appeals court, as a result of the Mandamus, ordering Sullivan, by June 1, to explain why he's refusing to approve the DOJ motion to dismiss.

What's interesting, however subtle, is that, normally: appellee would file a brief once an appellant has asked court to consider an appeal, and thus, respond to the appellant's arguments.

There is no obligation to respond to the appellant, though any good prosecutor would do that, so as to try and debunk it.

Because of the Mandamus, Sullivan has no choice but to respond.

And, he must do so in a relative "hurry" -- by June 1, instead of the longer time frame court rules allow under normal circumstances.

It also remains to be seen whether Sullivan's attorney will be permitted, by appeals court, to act as Apppellee on the judge's behalf, in this Mandamus process.

This actually underscores the fact that Sullivan is not a prosecutor and is not acting as one, legally at least.

He must respond.

A prosecutor has a choice whether to respond or not, and does so because he or she believes someone is guilty of a crime that a judge or jury had, already, decided was the case.

Sullivan, by hiring Wilkinson, may be signaling he will respond [if he does not respond, he essentially “defaults” – meaning, it would seem, that he has completely lost control of the actual Flynn case, totally; whether this would then mean his “default” would then require appeals court to grant the DOJ motion? I don’t know.]

Why hire a lawyer, if not to use her, that is simple logic.

Might something else be at play, and what might that be? I don’t know either way.

-30-

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