The federal appeals court in Washington on Aug. 31 rejected a request for intervention filed by former National Security Adviser Michael Flynn, sending the case back to the district judge who had set up an unprecedented procedure to determine whether he should approve the governments motion to dismiss the case.
The U.S. Court of Appeals for the District of Columbia Circuit denied the mandamus petition, arguing that Flynn has not exhausted other means of relief. Two of the eleven judges on the panel wrote a dissenting opinion. A mandamus petition is a form of extraordinary relief which asks a higher court to issue an order to a lower court.
“We conclude that mandamus is unavailable because an adequate alternative remedy exists,'” the court opinion (pdf) states.
“Here, petitioner and the government have an adequate alternate means of relief,” the opinion states. “The District Court could grant the motion, reject amicuss arguments, and dismiss the case.”
Flynns legal team filed a petition with the DC circuit court in May, shortly after the district judge in his case appointed an “amicus curiae” (friend of the court) to provide arguments against the prosecutions motion to dismiss the case. The unprecedented step pitted the judge against the defendant and the prosecutor before an appeals court. A three-judge panel sided with Flynn, but Judge Emmet Sullivan hired attorney Beth Wilkinson and asked the courts full eleven-judge panel, or en banc, to rehear the case.
Circuit Court Judge Neomi Rao dissented and argued that Sullivans “conduct patently draws his impartiality into question.” Sullivan, Rao continued, voided his impartiality by acting as a party in the case before the appeals court.
“But his petition for en banc review with no legal support whatsoever therefor manifests, first, that he plainly appears to view himself as a party; second, and more important, that his attempted action removes any doubt that the appearance of impartiality required of all federal judges has been compromised beyond repair,” Rao wrote.
Flynn pleaded guilty to lying to the FBI in December 2017, but withdrew his plea prior to the sentencing. The prosecutors later asked the judge to dismiss the case after discovering evidence that the bureau had no reason to conduct the interview during which Flynn allegedly lied. Sullivan responded to the moRead More From Source