A lawyer for former Trump national security adviser Michael Flynn has filed an appeal with the D.C. Circuit Court of Appeals asking for an order removing Judge Emmet Sullivan from the dispute.
The filing by lawyer Sidney Powell contends that under the precedent set in the district by the “Fokker Services” case, the judiciary must dismiss the case against Flynn because the Department of Justice, which was prosecuting it, has asked for that action.
Fox News reports the specific request to the appellate judges was a writ of mandamus, which is used when there “clear and indisputable” misbehavior on the part of a judge.
Harvard Law emeritus professor Alan Dershowitz earlier explained the precedent:
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“If this judge has the gall to not throw this out, he ought to be impeached. Remember that judges only have jurisdiction for cases and controversies,” Dershowitz said. “There’s no controversy here. Both sides agree this case should be dismissed. This judge has no power to do anything else. And if he asserts that power, he has violated the Constitution.”
The situation in the Flynn case is that his defense lawyers wants the case dropped, the prosecution wants the case dropped and the judge is the only one who hasn’t agreed.
Instead, Sullivan has ordered that friend-of-the-court briefs will be accepted in the case, and he’s even picked out a lawyer, John Gleeson, who has openly criticized the Trump administration, and appointed him to argue against the DOJ’s motion to dismiss.
Gleeson now has asked for court hearings on the issue.
Flynn had pleaded guilty to lying to an FBI investigator apparently under pressure from the agency’s threats to pursue charges against his son.
Gleeson’s opposition to Trump, Fox reported, raised “concerns that he was selected to improperly bolster Sullivan’s efforts to keep the Flynn case alive even though both the government and defendant want it dismissed.”
Powell’s filing stated, “Neither the Federal Rules of Criminal Procedure nor the district court’s local rules authorize amicus participation in criminal cases. Prior to issuance of its extraordinary May 12, 2020, order, the district judge adhered scrupulously to the district court’s rules, denying some two dozen attempts by third parties to intervene or file amicus briefs in this very case.”
She also explained trial courts are not allowed to second-guess the government’s “conclusion that additional prosecution or punishment would not serve the public interest.”
She pointed out that the FBI interview that triggered the charges was not supported by law, since the agency already had a transcript of the telephone call about which agents were asking, meaning there was no reason for them to be asking Flynn questions unless they had another agenda involved.
“Additional facts have established he was not interviewed for a legitimate purpose, and therefore any statements he made were not ‘material’ under 18 U.S.C. §1001, the Government justly believes that he is not guilty of any crime,” Powell wrote.
Agents, when they planned to interview him, openly wondered whether it was “to get him to lie, so we can prosecute him or get him fired.”
Flynn’s lawyer also pointed out that Sullivan already has made derogatory comments about Flynn, including that he incorrectly accused Flynn of working as an agent of a foreign government” while he was national security adviser.
Dershowitz pointed out that according to precedent, there is no case when prosecutors drop charges, meaning Sullivan is clearly exceeding his authority.
“There is a joke lawyers who practice in federal court like to tell. Angel Gabriel summons Sigmund Freud in heaven and tells him God is having delusions of grandeur,” Dershowitz wrote. “Freud asks how God can have delusions of grandeur: There is no one grander than Him. To which the Angel Gabriel responded, ‘he thinks he’s a federal judge.’
“But what Judge Sullivan is doing is no joke. He is endangering our system of separation of powers and he should be stopped by a writ of mandamus or a motion to recuse. Judges, too, are not above the law or the Constitution.”