The court of appeals orders that Judge Sullivan respond in 10 days about the motion to dismiss in the Michael Flynn case

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--

https://turcopolier.typepad.com/files/michaelflynn_mandamus_order_for_response-1.pdf

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 [1].  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--

https://turcopolier.typepad.com/files/us_v_fokker_services_818_f3d_733.pdf

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.

 

[1]  https://turcopolier.typepad.com/sic_semper_tyrannis/2020/05/michael-flynn-files-a-new-action-in-a-court-of-appeals-about-the-motion-to-dismiss-and-the-appointment-of-an-amicus-curiae.html

 

Comments

[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.

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