The DC appellate court dealt Flynn a major setback

The U.S. District Court for the District of Columbia, in the person of Judge Emmet Sullivan, refused to grant the Department of Justice's request that he dismiss the case against Gen. Michael Flynn.  A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit granted a writ of mandate and ordered Flynn's dismissal. Judge Sullivan appealed, and the appellate court, sitting en banc (meaning the whole court), reversed that earlier ruling and said Sullivan has the right to hold a full evidentiary hearing of the motion to dismiss.

If you've read the above paragraph, you know all the major facts.  Now for some helpful details.

When Bill Barr took over as attorney general, he assigned an attorney to review the facts surrounding Flynn's case, including exculpatory evidence that previous prosecutors had withheld.  Based upon the result of that review, the DOJ determined that the case against Flynn should be dismissed.  Flynn agreed to the dismissal, which meant that his counsel was confident that it was a good faith dismissal, rather than game-playing with the defendant.

Under ordinary circumstances, when the prosecutor brings a good faith motion to dismiss, the trial judge grants it.  Indeed, there is controlling case authority in the D.C. Circuit holding that the trial judge lacks the power to deny such a motion.

Sullivan, however, did not automatically grant the motion.  Instead, he appointed a third party — a former judge known to despise Trump — and asked him to write a brief explaining why Sullivan should deny the motion to dismiss.  He also ordered everyone to produce evidence.

Flynn filed a writ of mandamus with the appellate court, stating that the judge had no discretion to deny the motion.  This meant that his decision to hold a full evidentiary hearing, complete with a brief from a third party, abused discretion and, additionally, wrongly usurped power that lies solely with the executive; namely, the power to determine which cases to prosecute.

The original three-judge appellate panel allowed Sullivan to brief his position and then ruled in Flynn's favor.  It remanded the matter to Sullivan's court, instructing him to dismiss the case.  Sullivan, who is not a party to the litigation, nevertheless requested a review of the matter from the entire D.C. appellate bench, which is heavily weighted with leftist judges.

On Monday, the en banc appellate court, headed by an Obama-appointed chief justice, issued its ruling.  It held that the mandamus request was premature, pending an actual ruling from Sullivan.  Put another way, it held that even though Sullivan lacked authority to rule against the motion to dismiss and was infringing on the separation of powers doctrine, he could still hold a full evidentiary hearing provided that he reached the correct outcome.  In theory, the only allowable outcome is an order granting the dismissal.  In fact, if Trump loses, the outcome will be whatever the heck the Biden Department of Justice wants.

The appellate court justified its decision by holding that Flynn has ways other than a petition for writ of mandate to obtain the dismissal.  Again, fact and theory differ.  The only other way for Flynn to get relief from Sullivan's overreach is to wait for Sullivan to rule against him and then file for an appeal.  Because Flynn must inevitably be dismissed (assuming a Trump victory), the process itself has become part of his punishment for having the temerity to oppose Obama's Iran deal and to support Trump.

The appellate panel also rejected the claim that any time the judiciary infringes on an area of executive authority, the Executive Branch of the government is harmed.  It made a risible argument that pretends the trial court's appointing an amicus is business as usual.  I already shot down this utterly dishonest argument, but I am not surprised that a left-leaning appellate court would rely upon it.  That's what they do.

Here's the bottom line: if the trial court lacks discretion under the separation of powers to rule against the motion to dismiss, it must lack discretion to have a full evidentiary hearing and amicus briefing on that same motion.  Again, one senses that the appellate court is essentially saying, "When it comes to determining harm to the Executive Branch, let's just wait and see which executive is in the White House."

There's more in the 21-page opinion, which you can read here, but there simply isn't room in a post to cover it.  However, there are two ancient maxims of jurisprudence that govern here (and that California helpfully codified more than 100 years ago): "The law respects form less than substance" (Calif. Civ. Code § 3528) and "The law neither does nor requires idle acts" (Calif. Civ. Code § 3532).  An evidentiary hearing is an idle act here, and General Flynn should not forever be trapped in the illegal spider web that a corrupt FBI and DOJ spun to trap him.

Image: Michael Flynn and Emmet Sullivan.  The Flynn picture is cropped from an image by Gage SkidmoreCC BY-SA 2.0; the Sullivan picture is from the public domain.

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