I’ll say this for Judge Emmet Sullivan, he’s a persistent old cuss. Sullivan is so determined to sentence Michael Flynn that, rather than giving up after an appeals court ordered him to grant the government’s motion to dismiss the Flynn case, he has petitioned the full appeals court for en banc review. His lengthy brief can be found here.
I can understand why Sullivan fights on. First, the appeals court’s ruling is arguably erroneous. Granting a writ of mandamus, as the panel did here, is an extraordinary measure. It would be one thing if Sullivan had denied the government’s motion to dismiss the Flynn prosecution. But he didn’t. The appeals court didn’t wait for his ruling to find error and tell him what to do. Ordering a court to grant a motion it hasn’t yet ruled on is truly extraordinary.
Second, the court of appeals in question — the D.C. Circuit — is majority left-liberal (not counting senior judges). Harry Reid saw to that when he changed the Senate rules to eliminate the filibustering of judges at this level. He did so to pave for the way for three leftist Obama nominees — Patty Millet, Cornelia Pillard, and Robert Wilkins — to be confirmed.
Third, the panel’s grant of mandamus represents so stinging a rebuke to Sullivan that he would likely have been tempted to seek en banc review even if the decision had a stronger basis in the law and even from a less liberal court of appeals. And even if he didn’t have it in so strongly for Michael Flynn.
I don’t know what the resolution of Judge Sullivan’s petition will be, but I think there’s a decent chance the full court will reverse course and allow Sullivan to rule on the government’s motion to dismiss.
At the same time, there’s a better than decent chance that Flynn will never serve jail time. By the time the court hears the case en banc (if it does) and issues a ruling, and by the time Judge Sullivan takes testimony in connection with the government’s motion and decides on a sentence for Flynn (if he does), and by the time all further appeals are exhausted, we very likely will be past the election. At that point, I’m pretty sure President Trump will pardon Flynn, if necessary.
It’s disappointing, however, that the Justice Department’s motion to dismiss the case against Flynn wasn’t granted soon after the DOJ filed it in early May. And it’s disappointing that this matter will now drag on, possibly for many more months.