Tuesday, September 22, 2020
Miles from the Mainstream
D. R. ZUKERMAN, proprietor

D.C. Circuit Court Plays Politics
With the Michael Flynn Case

September 5, 2020 --

Apparently the D.C. Circuit Court of Appeals waited for the two political party conventions to end to hand down its ruling on the Flynn matter, voting 8-2 to return the case to Federal District Court Emmet Sullivan, rather than to approve dismissal of the case, sought by both the government and Flynn.     

LPR believes that Flynn should appeal to the United States Supreme Court.  The appellate court's suggestion that Flynn could appeal an adverse ruling by Judge Sullivan blithely ignores the likelihood that it would reject a second Flynn appeal. 

Recall, too, that Judge Sullivan called upon former Federal Judge John Gleeson to write an amicus brief opposing dismissal - after Gleeson, with two of his partners at the high-powered law firm Debevoise and Plimpton, wrote an op-ed column for The Washington Post... opposing dismissal.   

That op-ed column, pointing a finger at the government, asserted that the record of the Flynn case "reeks of improper political influence."   

LPR does not disagree, but believes the accusation should be directed against the Obama administration -- and, presently, against those who oppose dismissal.

LPR believes that Judge Sullivan and the heavily Democratic appellate court consider the government's support for dismissal as a Trump administration slap at the Obama administration. 

(Democrats on the appellate court include Judge Merrick Garland, whose nomination to the Supreme Court  by President Obama was not acted on by the Senate, with its Republican majority.)

It would not surprise LPR if the Supreme Court allowed dismissal on a 5-4 vote (depending on how the Chief Justice would vote  -- against or with the Never Trumpers).

LPR has a hunch that the politically-minded judges cynically expect that the president could always step in and grant Flynn a full and complete pardon -- with the idea that such action would activate the Biden presidential campaign.

An added thought.  Four of the circuit judges ruling against Flynn were appointed by President Obama. Three of the circuit judges ruling against Flynn were appointed by President Clinton. There was one concurrence to the court's per curiam opinion: Judge Thomas B. Griffith, appointed by President George W. Bush.

The dissenters were Judge Karen Henderson, appointed by President George H.W. Bush, and Judge Neomi Rao, appointed by President Trump.

LPR considers the dissenting opinions persuasive and, indeed, should be roadmaps for an appeal to the Supreme Court. Judge Henderson's main point was that Judge Sullivan was not impartial in refusing to agree to dismissing the Flynn matter. 

Judge Rao, among other things, noted that Judge Sullivan improperly conducted himself as if he were a party to the case and violated separation of powers by demanding the right to interfere with the discretion given by the Constitution to the Executive Branch on deciding whether to bring prosecutions.  That the majority ignored the opinions of the dissenters underscores the politics of the Flynn matter.

It seems clear to LPR that the majority, along with Judge Sullivan, are annoyed that Flynn sought to overturn a political prosecution brought by the Obama administration,

It would be appropriate for the Supreme Court to correct the political decision of the D.C. appellate court and restore the rule of law, not politics, to the Flynn matter.

LPR is convinced that God is blessing attorney Sidney Powell and Lt. Gen. Flynn as exemplars of the greatness of America.