[U] USDC Judge Emmet Sullivan’s Cogent Answers, In the Flynn DC Mandamus Appeal…

UPDATED Tuesday night: This was just entered in the DC Circuit:

“. . . .Scheduling oral argument on Friday, June 12, 2020, at 9:30 a.m. EDT Before Judges: Henderson, Wilkins and Rao. . . .” End, update.

In any sane mandamus appeal, to an upper federal court, this would not be a close question.

Judge Sullivan would be permitted to do his job, under the applicable trial court rules. But these are. . . strange times. So this very capable brief was. . . required. Do read it all, but here is a bit:

. . . .The unique facts of this case warrant evaluation by the trial judge before any review by this Court.

It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime. It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.

These reversals presented Judge Sullivan with several substantial questions. Was he required to grant the government’s post-plea motion to dismiss, and reverse his findings that Mr. Flynn’s false statements to the FBI about his contacts with Russia were material, without any inquiry into the facts set forth in, and surrounding, the government’s filing? What implications would dismissal have on Mr. Flynn’s separate false statements to the Department of Justice about his work for Turkey, which were part of his plea agreement but not addressed in the government’s motion? Do the facts here provide reason to question the “presumption of regularity” that ordinarily attaches to prosecutorial decisions, United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C.
Cir. 2016)?

And what, if anything, should Judge Sullivan do about Mr. Flynn’s sworn statements to the court, where he repeatedly admitted to the crime and to the voluntariness of his guilty plea, only to now claim that he never lied to the government and was pressured and misled into pleading guilty? Because the parties before him now support the same relief, Judge Sullivan turned to an approach used by federal courts across the country, as well as district courts in this Circuit: He appointed an amicus to present counterarguments, and set a briefing schedule giving the government and Mr. Flynn the last word. . . .

Mandamus is an extraordinary remedy that should be denied where the district court has not actually decided anything. The government’s motion is pending before Judge Sullivan and could well be granted, so Mr. Flynn can obtain the exact relief he seeks through ordinary judicial process. . . .

Mr. Flynn’s case has garnered considerable attention. But that is no reason to resolve it outside the normal judicial process. This is a “court of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). The questions presented should be resolved by the district court in the first instance. . . .

Flynn will lose — justice will. . . prevail, and he will go to jail, for lying. But it may all take beyond November 2020. Buckle-up.

Back from cleaning up damaged businesses, on Chicago’s west side, with a grass-roots community activists’ group. Video on request. . . smile. Chicago is a very fine city — her “big shoulders” can, and will, recover — and admit. . . that we need fundamental policing change, nationwide.


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