Judge Sullivan asks for an en Banc hearing by the Circuit Court. Which means that the Brady Order for exculpatory evidence will remain valid for a little longer.
#ButNothingsHappening
#ButNothingsHappening
If heard, the entire court will hear the case for the writ of mandamus to grant the DOJ's motion to dismiss without ever hearing the facts of the case. 
Sullivan argues that the 3 judge panel ignored precedent to reach the decision, we shall see.
We must not forget there are 2 Motions to Dismiss pending before Judge Sullivan. The DOJ's motion from May & Sidney Powell's Motion to Dismiss for Egregious Government Conduct from January.
Enforcement of the writ would prevent ruling on either motion.
Enforcement of the writ would prevent ruling on either motion.
Do not forget that the DOJ's 5/7/20 motion & their mandamus filings claim that there was no prosecutorial misconduct in the Flynn case.
The circuit used this argument that there was no government misconduct on the record so the judge must presume that everything was ok w the case
The circuit used this argument that there was no government misconduct on the record so the judge must presume that everything was ok w the case
As Judge Rao says, after 3 1/2 years there is no 'clear evidence' of misconduct in the Flynn case according to DOJ.
DOJ even argued that explaining why they dropped the case would damage DOJ's reputation? Why would that be if there was no misconduct?
DOJ even argued that explaining why they dropped the case would damage DOJ's reputation? Why would that be if there was no misconduct?
Answering Sullivan's questions would force DOJ to explain why Flynn was charged in the first place...
In most cases this is a prosecutors call, but does anyone think the decision to charge Flynn was a normal prosecution decision? That it wasn't unusual?
In most cases this is a prosecutors call, but does anyone think the decision to charge Flynn was a normal prosecution decision? That it wasn't unusual?
The court granted mandamus to protect DOJ's reputation, even though they were not the party that asked for the writ.
IF everything was okay in the Flynn prosecution, why would it embarrass the DOJ & destroy their reputation to explain why Flynn was charged?
IF everything was okay in the Flynn prosecution, why would it embarrass the DOJ & destroy their reputation to explain why Flynn was charged?
Just like Flynn, the Rinaldi precedent ended in a hearing over a motion to dismiss when DOJ was caught with statements that conflicted. Why did DOJ not retract any of the Van Grack filings & statements? Would it embarass the DOJ to admit what was false in those filings?
The Rinaldi precedent was a narrow call, with Rehnquist leading the dissent. The ruling was not that a Rule 48 hearing could not be held, just that the judge in that case overstepped in refusing to dismiss it.
Precedent holds that a lower court must first rule on a motion, before a circuit court steps in with mandamus to decide if the judge's ruling on the motion should be set aside.
Mandamus also requires that there be irreparable harm to the party that filed it. The circuit judges ruled based upon irreparable harm to the DOJ reputation, when they were not the party that filed it.
If the prosecution was legitimate, why would explaining it be so harmful?
If the prosecution was legitimate, why would explaining it be so harmful?
Precedent also holds that Flynn's attorneys must first make the argument to Sullivan & only after he rejects their argument can they take the writ to the circuit court. They can't take a new argument to the circuit court.
It clearly set an odd precedent to allow one party to a case to make novel arguments at the appeals level, then find for the one party over potential harm to the other party in the case.
What will they do?
What will they do?
