ZeroHedge
reports on DC Appeals Judge Neomi Rao wrote the majority opinion that shreds
the dissenting od Judge Robert Wilkins. The Majority tells Deep State Judge Emmet
Sullivan to dismiss case against framed Michael Flynn.
JRH 6/26/20
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Flynn Dismissal Order 'Thoroughly Demolishes' Dissenting
Judge's Opinion
By Tyler
Durden
06/25/2020 - 04:12
Update (2135ET): Missouri appellate attorney
John Reeves has weighed in on today's decision by the US Court of Appeals for
DC ordering Judge Emmett Sullivan to grant a DOJ request to drop the case
against Michael Flynn.
The opinion, authored by one of the three judges on the
panel, Neomi J. Rao, "thoroughly demolishes" a dissenting opinion
by Judge Robert Wilkins - who Reeves thinks was so off-base
that he "shot himself in the foot" when it comes to any chance
of an 'en-banc review' in which the Flynn decision would be kicked back for a
full review by the DC appellate court.
Neomi Rao testifies
before the Senate Judiciary Committee during her confirmation hearing to be
U.S. Circuit Judge for the District of Columbia Circuit, on Tuesday, February
5, 2019. Photo: Diego M. Radzinschi/ALM (via law.com)
Reeves, who has written filings for US Supreme Court
cases, unpacks Rao's "outstanding opinion" in the below Twitter
thread, conveniently adding which page you can find what he's referring to (condensed
below after the first tweet, emphasis ours):
THREAD re: Flynn mandamus opinion— John M. Reeves (@reeveslawstl) June 24, 2020
1) Judge Rao's opinion--joined by Judge Henderson--granting Flynn mandamus is outstanding not only for its legal reasoning, but also for how it COMPLETELY EVISCERATES Judge Wilkins' dissenting opinion. https://t.co/LBqGihkrMH
In all my years of appellate practice, I don't think I've
ever seen a non-US Supreme Court appellate opinion that so thoroughly demolishes
a dissenting opinion as this one. Judge Rao could not have done better in
writing the opinion, and it should be required law school rdg.
In addition, Judge Wilkins' dissenting opinion is so
off-the-mark that I believe he has shot himself in the foot for purposes of en
banc review--in other words, he has ensured that otherwise-sympathetic
judges on the DC Circuit will vote against en banc review.
Judge Rao comes out swinging by holding that its earlier
opinion in Fokker "foreclose[s] the district court's proposed scrutiny of
the government's motion to dismiss the Flynn prosecution." p. 7.
In relying on Fokker, Judge Rao explicitly rejects Judge
Wilkinson's argument that Fokker's holding is dicta (that is, non-binding).
She holds Fokker "is directly controlling here." p. 14.
Keep in mind that Fokker was written by Chief Judge
Srinivasan, an OBAMA appointee. Judge Srinivasan does NOT want Fokker's
legitimacy undermined, no matter his politics.
Judge Wilkins' dissent implies that Fokker was wrongly
decided, and that it conflicts with other federal appellate courts. See p.
23 of 28. Judge Srinivasan will NOT be impressed by this argument in
deciding whether to grant en banc rehearing. Fokker does not create a
split.
Judge Rao goes on to emphasize that while judicial inquiry
MAY be justified in some circumstances, Flynn's situation "is plainly
not the rare case where further judicial inquiry is warranted." p. 6.
Rao notes that Flynn agrees with the Govt.'s dismissal motion,
so there's no risk of his rights being violated. In addition, the Government
has stated insufficient evidence exists to convict Flynn. p. 6.
Rao also holds that "a hearing cannot be used as an
occasion to superintend the prosecution's charging decisions." p. 7.
But by appointing amicus and attempting to hold a hearing on
these matters, the district court is inflicting irreparable harm on the
Govt. because it is subjecting its prosecutorial decisions to outside inquiry.
p. 8
Thus, Judge Rao holds, it is NOT true that the district
court has "yet to act" in this matter, contrary to Judge Wilkins'
assertions. p. 16.
"[T]he district court HAS acted here....[by
appointing] one private citizen to argue that another citizen should be
deprived of his liberty regardless of whether the Executive Branch is willing
to pursue the charges." p. 16. This justified mandamus being issued
NOW.
Judge Rao also makes short work of Judge Wilkins' argument
that the court may not consider the harm to the Government in deciding whether
to grant mandamus bc the Government never filed a petition for mandamus. p. 17.
Judge Rao notes "[o]ur court has squarely rejected
this argument," and follows with a plethora of supporting citations.
p. 17.
Judge Rao also notes--contrary to what many legal
commentators have misled the public to believe--that it is "black
letter law" that the Govt. can seek dismissal even after a guilty plea is
made. This does not justify greater scrutiny by the district court. p. 6,
footnote 1.
As to Judge Wilkins' argument that a district court may
conduct greater scrutiny where, as here, the Govt. reverses its position in
prosecuting a case, Judge Rao points out that "the government
NECESSARILY reverses its position whenever it moves to dismiss charges...."
p. 13
"Given the absence of any legitimate basis to question
the presumption of regularity, there is no justification to appoint a
private citizen to oppose the government's motion to dismiss Flynn's
prosecution." p. 13.
But Judge Rao saves her most stinging and brutal takedown
of Judge Wilkins' dissent for the end.....(cont)
Judge Rao writes that "the dissent swings for the
fences--and misses--by analogizing a Rule 48(a) motion to dismiss with a
selective prosecution claim." p. 17. (cont)
While it is true that the Executive cannot selectively
prosecute certain individuals "based on impermissible
considerations," p. 18, "the equal protection remedy is to dismiss
the prosecution, NOT to compel the Executive to bring another prosecution."
p. 18 (emph. added).
And Judge Rao is just getting warmed up here....She then
notes that "unwarranted judicial scrutiny of a prosecutor's motion to
dismiss puts the court in an entirely different position [than selective
prosecution caselaw assigns the court]." p. 18 (cont)
"Rather than allow the Executive Branch to dismiss a
problematic prosecution, the court [as Judge Wilkins and Judge Sullivan
would have it] assumes the role of inquisitor, prolonging a prosecution deemed
illegitimate by the Executive." p. 18 (cont).
And now for Judge Rao's KO to Judge Wilkins and Judge
Sullivan: "Judges assume that role in some countries, but Article
III gives no prosecutorial or inquisitional power to federal judges."
p. 18. (cont)
In other words, Judge Rao is likening Judge Wilkins'
arguments, and Judge Sullivan's actions, to what is done in non-democratic,
third world countries. p. 18. Outstanding opinion. No mercy. END
Judge Robert Wilkins of
the District of Columbia Circuit (Credit: Diego M. Radzinschi / NLJ)
* * *
Like a liquid-metal terminator with half its head blown
apart, the case against Michael Flynn just won't die.
Hours after the US Court of Appeals for DC ordered Judge
Emmett Sullivan to grant the DOJ's request to drop the case, the retired
'resistance' judge hired to defend Sullivan's actions has filed a motion
requesting an extension to file his findings against Flynn.
The D.C. Appeals Court today vacated the lawless appointment of a left-wing shadow prosecutor to go after Flynn.— Sean Davis (@seanmdav) June 24, 2020
Gleeson, the Resistance dead-ender hired by Sullivan, is ignoring the order and plowing ahead with his illegal inquisition against Flynn. https://t.co/bOeG7pRJxv
* * *
In a major victory for Michael Flynn, the United
States Court of Appeals for the District of Columbia Circuit has ordered Judge Emmet Sullivan to grant the Justice Department's
request to dismiss the case against the former Trump National Security Adviser.
"Upon consideration of the emergency petition for a
writ of mandamus, the responses thereto, and the reply, the briefs of amici
curiae in support of the parties, and the argument by counsel, it is ORDERED
that Flynn's petition for a writ of mandamus be granted in part; the District
Court is directed to grant the government's Rule 48(a) motion to dismiss; nd
the District Court's order appointing an amicus is hereby vacated as moot,
in accordance with the opinion of the court filed herein this date," reads
the order.
Appeals court orders Flynn judge to grant dismissal of the case pic.twitter.com/MmWSDrzHCh— kadhim (＾ｰ^)ノ (@kadhim) June 24, 2020
In their decision, the appeals court wrote: "Decisions
to dismiss pending criminal charges - no less than decisions to initiate charges
and to identify which charges to bring - lie squarely within the ken of prosecutorial
discretion."
"The Judiciary's role under Rule 48 is thus confined to
"extremely limited circumstances in extraordinary cases.""
Hence, no dice for Judge Sullivan.
Great! Appeals Court Upholds Justice Departments Request To Drop Criminal Case Against General Michael Flynn!— Donald J. Trump (@realDonaldTrump) June 24, 2020
Flynn pleaded guilty in December 2017 to lying to the FBI
about his conversations with former Russian Ambassador to the US, Sergey
Kislyak, during the presidential transition following the 2016 US election. He
later withdrew his plea after securing new legal counsel, while evidence
emerged which revealed the FBI had laid a 'perjury trap' - despite the fact
that the agents who interviewed him in January, 2017 said they thought he
was telling the truth. Agents persisted hunting Flynn despite the FBI's
recommendation to close the case.
Once the FBI's malfeasance was uncovered, the Justice
Department moved to dismiss the case after Attorney General William Barr tapped
an outside prosecutor to examine the FBI's conduct. Judge Sullivan rejected
the DOJ's request - instead calling on an outside lawyer to make arguments
against the DOJ's move to drop the case.
In their Wednesday decision, the Appeals court noted
that "the government's motion includes an extensive discussion of newly
discovered evidence casting Flynn's guilt into doubt."
Specifically, the government
points to evidence that the FBI interview at which Flynn allegedly made false
statements was "untethered to, and unjustified by, the FBI's
counterintelligence investigation into Mr. Flynn." -US Court of Appeals
Shortly before the DOJ move to dismiss, former Mueller
prosecutor Brandon Van Grack suddenly withdrew from the case (and
others). Flynn's new attorney, Sidney Powell, said that government documents
revealed "further evidence of misconduct by Mr. Van Grack
specifically."
Sullivan urged the federal appeals court to also reject
Flynn's bid to bring an end to the case, which has now ruled against the
judge.
Meanwhile...
Looks like @JoeBiden and @BarackObama were complicit in framing @GenFlynn.— John Cardillo (@johncardillo) June 24, 2020
I can't wait for Flynn to tell all he knows about these traitors. https://t.co/JynrbnuawE
Read the full decision below:
(Scribd link: https://www.scribd.com/document/466802669/Appeals-Court-Orders-Charges-Against-Michael-Flynn-To-Be-Dismissed)
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