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June 24, 2020

DC Circuit Court of Appeals Rules in Favor of Flynn, Directing Rogue #Resistance Judge Sullivan to Grant the Government's Motion to Dismss the Charges

Decision here. It was written by Rao and joined by Henderson. Wilkins, the Obama appointee who repeatedly injected Black Lives Matter agitprop into his hypotheticals, dissented.

You may have heard that there were arguments about how large a role the judge is to have in cases of a motion to dismiss. Such motions are granted "by leave of the court" -- with the judge's permissions -- and yet the decision to charge, not charge, or dismiss is given entirely to the Executive.

Rao's decision clarifies why "leave" is required in these cases: to protect the defendant from a harassing prosecution. Prosecutors will sometimes repeatedly indict someone for charges they cannot actually prove. Then they go to court to dismiss the indictment. Then they come back months later an indict again. And so on, and so on.

Double jeopardy does not prevent this because jeopardy does not attach until there's actually the start of a trial -- when a jury is empaneled, jeopardy attaches.

So the leave of the court provision exists so that the judge can protect a defendant from this sort of prosecutorial harassment -- the judge can refuse to dismiss, if the defendant objects to the dismissal. In that case the judge would be saying, "Either finally put on a case against this man or I will dismiss the charges, with prejudice, forever."

Somehow Sullivan and the various #Resistance lawyers on Twitter and MSNBC and CNN have interpreted this limited power to protect a defendant from prosecutorial abuse as a license to conduct his own illegal prosecution, violating the Constitution by assigning Article II prosecution power to himself, an Article III judge.

Sullivan (or his taxpayer-paid lawyer) repeatedly claimed "abuse of prosecutorial discretion" gave him authority to conduct his own prosecutor -- again, overlooking the fact that the abuse of prosecutorial discretion that was contemplated in the "with leave of the court" permission had to do with a vindictive prosecutor harassing the defendant.

Sullivan turned this defendant-protecting clause into a license to bring his own slate of charges against a defendant.

The court disagrees with this and said so:

The circumstances of this case demonstrate that mandamus is
appropriate to prevent the judicial usurpation of executive
power. The first troubling indication of the district court's
mistaken understanding of its role in ruling on an unopposed
Rule 48(a) motion was the appointment of John Gleeson to
"[resent arguments in opposition to the government's Motion."

Whatever the extent of the district court's "narrow" role under Rule 48(a),
see Fokker Servs., 818 F.3d at 742, that role does not include
designating an advocate to defend Flynn's continued
prosecution. The district court's order put two "coequal
branches of the Government … on a collision course." Cheney,
542 U.S. at 389. The district court chose an amicus who had
publicly advocated for a full adversarial process. Based on the
record before us, the contemplated hearing could require the
government to defend its charging decision on two fronts--
answering the district court's inquiries as well as combatting
Gleeson's arguments. Moreover, the district court's invitation
to members of the general public to appear as amici suggests
anything but a circumscribed review. See May 12, 2020,
Minute Order, No. 1:17-cr-232. This sort of broadside inquiry
would rewrite Rule 48(a)'s narrow "leave of court" provision.

And we need not guess if this irregular and searching
scrutiny will continue; it already has. On May 15, Gleeson
moved for permission to file a brief addressing, among other
things, "any additional factual development [he] may need
before finalizing [his] argument" and suggesting a briefing and
argument schedule. Mot. to File Amicus Br., No. 1:17-cr-232,
ECF No. 209, at 1–2 (May 15, 2020). The district court granted
the motion and then set a lengthy briefing schedule and a July
16, 2020, hearing. See May 19, 2020, Minute Order, No. 1:17-
cr-232. In his brief opposing the government’s motion, Gleeson
asserted the government's reasons for dismissal were "pretext"
and accused the government of "gross prosecutorial abuse."
Amicus Br., No. 1:17-cr-232, ECF No. 225, at 38–59 (June 10,
10 2020). He relied on news stories, tweets, and other facts outside
the record to contrast the government's grounds for dismissal
here with its rationales for prosecution in other cases. See id. at
43, 46–47, 57–59.

The District Court ruled for Flynn on two of his motions: To dismiss the amicus hearing, and to order Sullivan to dismiss the charges. It ruled against him as far as getting his case reassigned to someone other than this God-complexed imbecile.

But reassigning the case might have been a mercy to Sullivan -- now he's forced to dismiss the case himself.

People are wondering if this idiot is going to show "defiance" (as Andy McCarthy called it, I think) to the District Court's order and still hold his own hearing (without amicus involvement). He is ordered to dismiss the case; but the court didn't specify "immediately." He could continue campaigning for his job as a CNN legal analyst by fulminating for several days about government abuse and who knows, maybe even nooses he saw on his tie rack.

I'll post more as I read more of the decision.

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