Sidney Powell, Michael Flynn’s lawyer in the criminal case against him, has filed a Writ of Mandamus to the United States District Court for the District of Columbia. The petition asks the D.C. Circuit to issue an order directing the district court to grant the Justice Department’s motion to dismiss its case against Gen. Flynn. It also asks that the district court be ordered to vacate its order appointing amicus curiae in the case and that the case be reassigned to another district judge for any further proceedings.
I speculated here about the prospects for succeeding with such a petition at this stage of the proceedings before Judge Sullivan. It seemed to me that the prospects aren’t good because Sullivan hasn’t yet ruled on the government’s motion to dismiss. I hope I’m wrong.
The petition Powell filed on Gen. Flynn’s behalf does not mince words. Here are the key passages regarding dismissal of the case against Flynn:
Petitioner, through no fault of his own, has been drawn into a Kafkaesque nightmare that is a cross between The Trial and In the Penal Colony. He has been subjected to deception, abuse, penury, obloquy, and humiliation.
Having risked his life in service to his country, he has found himself the target of a political vendetta designed to strip him of his honor and savings, and to deprive the President of his advice. He has been dragged through the mud and forced, through coercion and the artful withholding of information crucial to his defense, to confess to a crime he did not commit—indeed, to a crime that could not exist.
Having at last, through the relentless determination of his current counsel, brought the truth to light, he now learns that the judge who is charged with adjudicating his case impartially has, in Judge Posner’s words, decided to “play … U.S. Attorney.” The equities demand an end to this nightmare and restoration of General Flynn’s freedom and peace of mind. . . .
[T]he reputation of the judiciary is in jeopardy. As the Chief Justice memorably stated at his confirmation hearings, the function of a judge in our system of government is to “call balls and strikes, and not to pitch or bat.” The district judge in this case has abandoned any pretense of being an objective umpire—going to so far as to suggest that a criminal defendant who succumbs to a coerced and unfair plea bargain should be prosecuted for contempt.
In the midst of a national election season, with unprecedented acrimony on all sides of the civic debate, the district judge has dragged the court into the political hurricane—cementing the notion that judges are politicians in robes who use their authority to thwart what they consider the “corruption,” “impropriety,” and “improper political influence” of another one of the political branches.
Confidence in the rule of law, and the willingness of federal judges to administer it impartially, will continue to erode, if this Court fails to put a swift end to this spectacle. (Emphasis added)
In support of taking the case away from Judge Sullivan, Powell writes:
The district judge’s manifest confusion about the facts of this case, accusing General Flynn of treason and having “sold out his country,” and his punitive intentions are well documented. Following Petitioner’s first sentencing hearing on December 18, 2018, headlines such as these appeared: Stephanie Kirchgaessner, ‘I can’t hide my disgust, my disdain’: judge lambasts Michael Flynn, THE GUARDIAN. . . Judge asks prosecutors whether Mike Flynn could have been charged with treason, THE DAILY BEAST); Griffin Connolly, Judge Lights Into Michael Flynn: ‘You Sold Your Country Out,’ ROLL CALL. . . . [citations and links omitted]. . . .
These world-wide headlines are only one wave of the tsunami of invective that crashed into General Flynn as a result of the district judge’s intemperate comments. A defendant facing sentencing is entitled to a judge who does not express “disgust” and “disdain” in a courtroom filled with reporters. Inflaming public passions against a party, particularly a criminal defendant, and encouraging prosecutors to vastly increase the charges against him, is the very antithesis of calling balls and strikes.
Nor was this the end of the matter. The district judge’s latest actions—failing to grant the Government’s Motion to Dismiss, appointing a biased and highly-political amicus who has expressed hostility and disdain towards the Justice Department’s decision to dismiss the prosecution, and the promise to set a briefing schedule for widespread amicus participation in further proceedings—bespeaks a judge who is not only biased against Petitioner, but also revels in the notoriety he has created by failing to take the simple step of granting a motion he has no authority to deny.
This is an umpire who has decided to steal public attention from the players and focus it on himself. He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field. (Emphasis added)
I don’t know whether Judge Sullivan revels in the notoriety this case has brought him. He might simply be really pissed off at Michael Flynn for lying either to the FBI or in Sullivan’s courtroom.
Either way, I believe Sullivan is obligated to dismiss the criminal case against Gen. Flynn. If the D.C. Circuit doesn’t direct him to do so now, it should direct him to do so if, ultimately, he denies the government’s motion to dismiss.