Gen. Michael Flynn’s attorney, Sidney Powell, appears to be following Constitutional Scholar and conservative pundit Mark Levin’s suggestion for how to deal with the judge who refused to grant the Justice Department’s motion to dismiss the case against her client.
On Tuesday, Powell filed an Emergency Petition For A Writ of Mandamus with the U.S. Court of Appeals for the District of Columbia, asking it to compel lower-court Judge Emmet Sullivan to grant the Justice Department’s motion:
“This petition seeks an order directing the district court to grant the Justice Department’s Motion to Dismiss its criminal case against former National Security Advisor to President Trump, Lieutenant General Michael T. Flynn (Ret.) (“Motion to Dismiss”). ECF No. 198. The Government moved to dismiss the Information charging a violation of 18 U.S.C. §1001 after an internal review by United States Attorney Jeffrey Jensen unearthed stunning evidence of government misconduct and General Flynn’s innocence.”
The request urges the court to grant Flynn three specific remedies, including assignment of a new judge:
“Petitioner respectfully requests that this Court order the district court immediately to (1) grant the Justice Department’s Motion to Dismiss; (2) vacate its order appointing amicus curiae; and (3) reassign the case to another district judge as to any further proceedings.”
Not only is Judge Sullivan is refusing to grant the Justice Department’s motion to dismiss case against President Donald Trump’s former National Security Adviser - he is also inviting outside parties to advise him on how to justify denying the motion – and to suggest additional charges that can be pressed against Flynn.
Last Thursday, Mark Levin used an appearance on Fox News Channel to recommend that Flynn’s lawyers file a Writ of Mandamus with a higher court, since Judge Sullivan has exceeded his jurisdiction, CNSNews.com reported:
“So, this judge is a rogue judge. He’s out of control; he should recuse himself – but, he’s too damn arrogant and he won't.
“So, let me make a suggestion to the folks over there at the Department of Justice. They've got a lot of smart attorneys in the office of legal counsel and elsewhere. I used to work at that grand Department of justice before the Left destroyed.
“It's called a Writ of Prohibition. It's almost never used, because we almost never have situations like this, and you file it with the appellate court, the D.C. Circuit court: an appellate court’s order to a lower court prohibiting it from acting, because it lacks jurisdiction.
“This judge lacks jurisdiction to do what he is doing - according to the United States Supreme Court last week, according to the United States Constitution.”
Powell’s writ also appears to cite a court case Levin noted, in which a unanimous 9-0 Supreme Court decision written by Ruth Bader Ginsburg ruled that a judge can’t use friend of the court briefs (as Judge Sullivan is doing) to change the nature and position of a case in order to force the parties to fight over “not what the parties were fighting over – but, what the court wanted them to fight over.”
Likewise, as both Levin and the Powell contend, the case does not contain the “case and controversy” required for it to be prosecuted.
And, while Levin cited Judge Sullivan’s public declarations of disdain and disgust for Flynn, Powell notes in her request for a new judge that Sullivan once insinuated that General Flynn is a traitor to his country:
“Petitioner, the Government, and the appearance of justice will best be served by having another judge—one who has not implied that Petitioner is a traitor—conduct any further proceedings in the case.”