Michael Flynn’s attorney Sidney Powell is hitting back hard against Judge Emmet Sullivan’s preposterous delay in dismissing Flynn’s case. Powell just filed an emergency petition for a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit. In non-legalspeak, this means Powell is requesting the appeals court to intervene and actually follow the law and the Constitution.
She’s asking the higher court for three things: first, order Sullivan to grant the Justice Department’s motion to dismiss; second, vacate Sullivan’s order appointing amicus curiae (“friend of the court”); and third, reassign the case to another district court judge for any further proceedings.
It’s legally absurd that this petition is even required and is an extraordinary remedy that is unfortunately needed here. Powell notes that “the district court [Sullivan] has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing amici to perform the investigation or prosecution that the court deems appropriate.” Sullivan is acting as a prosecutor, not an independent judicial officer.
Appealing to the higher court is rightly asking for a check on Sullivan’s clearly inappropriate conduct from the bench. Flynn has every right under the Constitution and due process to the relief sought.
Sullivan lacks the legal authority to refuse the government’s motion to dismiss. A criminal matter is a dispute between the government and the defendant. A judge’s sole function in procedural matters is to impose the law, not to takes sides in the dispute. The judicial branch is not charged with law enforcement — that power resides exclusively in the executive branch. Where the government decides not to prosecute, it is not for the judge to second-guess or compel the government to.
The petition goes into a lengthy recitation of the facts, highlighting both the grossly malicious targeting of Flynn by the outgoing administration, contravening our constitutional standard of peaceful transition of power, and also Sullivan’s clear error and bias in his statements and rulings. For example, Powell noted Sullivan’s bizarre statement from a prior hearing that Flynn could have been prosecuted for “treason” and that Flynn had “sold out his country.”
Who made Sullivan the prosecutor?
His decision to allow amicus arguments from a retired federal judge (who is, not incidentally, on record as averse to Flynn and the DOJ’s handling of the case) also oddly puts the DOJ and Flynn on the same side in a criminal matter. That’s contrary to the entire criminal justice system, where only the litigants are opposed.
Powell is entirely correct in her arguments to the appellate court. This case began as a political maneuver, and Sullivan is making more bad decisions at every turn based on politics, not on the law. No person in a U.S. court should ever be subject to a judge who is so clearly biased. Sullivan should be removed from the case — and frankly, should be removed from the bench.
As the petition powerfully states, “The district court has disregarded the constitutional imperative of a ‘case and controversy’ and the ‘separation of powers’ that invests the power to prosecute solely in the executive branch.”
The department should file its own writ as well to preserve the integrity of the system that provides for prosecutorial discretion. Abuses of power and undermining of justice must be overruled in every instance, but especially in such a prominent case. We deserve to have faith in our judicial branch and the legitimacy of judges who are sworn to uphold the Constitution and protect the rights of every American citizen, including Michael Flynn. Justice should be blind to political, partisan interests.
Jenna Ellis (@JennaEllisEsq) is a constitutional law attorney, the senior legal adviser for the Trump 2020 campaign, and a fellow with the Falkirk Center for Faith & Liberty. She is the author of The Legal Basis for a Moral Constitution.
