In an 8-2 decision, the D.C. Circuit yesterday denied Michael Flynn's petition for a writ of mandamus that would have ordered district court Judge Emmett Sullivan to dismiss the criminal charge against Flynn.
Flynn's attorney, Sidney Powell, first sought a writ of mandamus from the D.C. Circuit after Judge Sullivan refused to dismiss the criminal charge against Flynn.
The Department of Justice had filed a motion to dismiss the charge that Flynn had lied to FBI agents about his conversations with the Russian ambassador, Sergey Kislyak, after U.S. Attorney Jeff Jensen conducted an independent review of the Flynn prosecution.
In a 2-1 decision authored by Judge Rao, the D.C. Circuit granted mandamus and ordered Judge Sullivan to dismiss the criminal complaint.
After detailing the lengthy procedural background of the Flynn case, the court held that mandamus was unavailable because an "Adequate alternative remedy existed," namely Flynn could seek mandamus again if the district court denies the government's motion to dismiss.
As Judge Henderson details in her dissent, 28 U.S.C. 455, requires a judge to recuse when his impartiality might reasonably be questioned.
Flynn could seek review by the Supreme Court, but strategically he is likely better off waiting for Sullivan to rule on the motion to dismiss - something the D.C. Circuit said they "Trust and expect" will happen with "Appropriate dispatch." Flynn has already waited long enough for justice.
https://thefederalist.com/2020/09/01/d-c-court-endorses-continued-legal-harassment-of-michael-flynn/
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