In light of Judge Sullivan’s bizarre orders in the Flynn prosecution, there is talk about the possibility of filing a petition with the court of appeals seeking to have it pull the plug on the Flynn proceedings. However, I don’t think the D.C. Circuit would grant such a petition, and I question whether, at this stage, it should.
The problem is that Sullivan hasn’t ruled one way or the other on the government’s motion to dismiss the case against Gen. Flynn. Technically, all he has done is ask for briefing from outside parties on the question of whether he should grant the motion.
Sullivan shouldn’t have asked for outside help. He should have done his own research, if necessary, and granted the motion without further ado. However, I doubt that this is the kind of error a court of appeals would, or should, correct on a petition.
If Sullivan denies the government’s motion and/or launches a prosecution of Flynn for perjury, then a petition to the court of appeals will be in order. It would be unconscionable to make Flynn wait until he has endured additional substantive criminal proceedings before finally being able to appeal.
U.S. v. Fokker Services, decided by the D.C. Circuit in 2016, is an example of a successful petition for mandamus against a district court judge who exceeds his authority in a criminal case the parties want to halt. There, the district court refused to enter a deferred prosecution agreement (DPA) reached by the government and the defendant because the judge felt the defendant was getting off lightly. Finding that the judge had gone beyond his proper role, the D.C. Circuit pulled the plug.
However, this was after the district court denied the parties’ DPA motion. In the Flynn case, Sullivan has yet to rule. Only after he does might an appeals court be receptive to intervening .