Appellate Court Orders Judge To Dismiss Michael Flynn Case

Will Judge Sullivan Escalate Anyway?

Wright Law Firm Update

In a 2-1 decision, the D.C. Court of Appeals granted Michael Flynn’s petition for a writ of mandamus, and it ordered Judge Sullivan of the federal district court to dismiss the criminal charge against Flynn. The appellate court also vacated Sullivan’s appointment of John Gleeson as amicus curiae. The federal appellate court, however, refused to reassign the case to another judge, the majority opinion stated that Sullivan’s conduct was not “so extreme as to display clear inability to render fair judgment.”

This may have been an olive branch to a distinguished judge. In not reassigning the Flynn case, the appellate court offered Sullivan a face-saving out. Now the question is if judge sullivan will accept defeat or escalate matters instead.

At this point, Sullivan need only grant the Department of Justice’s motion to dismiss and enter an order dismissing the criminal charge against Flynn with prejudice. That would end the matter. But as the respondent to Flynn’s petition for mandamus, Sullivan has the same options available to other litigants. That is, Judge Sullivan could seek review of the panel decision by the entire D.C. Circuit, or he could even request review by the United States Supreme Court.

Judge Robert Wilkins dissented from the majority opinion which was authored by Judge Neomi Rao and joined by Judge Karen Henderson. On that slim basis Sullivan might choose open defiance. Such a course of action would be a mistake, though, as Rao penned a cautious opinion, focused on separation-of-powers concerns. The opinion has an extremely limited reach. The majority opinion eviscerated every argument presented in Wilkins’ dissent.

Also, it is rare that federal appellate courts go en banc to rehear a case with narrow reach. It would be even more surprising for the Supreme Court to intervene in a case unlikely ever to arise again.

So Sullivan’s chances of success are low. Any attempt to push forward now would only cast in stone his already-bare anti-Trump and anti-Flynn bias. Sullivan’s best course of action would be to immediately grant the government’s motion to dismiss in a short order that framed his earlier rulings and his appointment of an amicus as a concern for transparency. Then, by feigning disgust over the brief Gleeson submitted, Sullivan could extricate himself from the swamp he created.