Wednesday, May 27, 2020


Respectfully Dissenting from Judge Luttig on Flynn Mandamus
Excerpt: While Judge Luttig is understandably worried about the public reputation of the court, the constitutional priority here is Flynn’s due-process rights. If, as I expect, Sullivan cannot defend his recent actions, the D.C. Circuit should either directly grant the Justice Department’s motion to dismiss, or order the lower court to grant it. The Court of Appeals’ order gave Judge Sullivan ten days to respond to Flynn’s mandamus petition. That is prudent. Sullivan is a highly experienced judge. John Gleeson, the former judge and prosecutor whom Sullivan wants to bring in as his adviser, is also well versed in criminal law. To my mind, they have both been swept away by the heated politics of the moment. Judge Sullivan, in addition, is clearly livid about putting in what may be wasted effort on the case, and no doubt feels ill-used by Flynn’s reversal of course — which happened only after Sullivan elicited from Flynn reaffirmations that he was guilty and was not seeking to withdraw his plea. The ten days give Sullivan an opportunity to count to ten and do his duty. No one is suggesting that he needs to agree with or approve of the Justice Department’s decision to dismiss the case. He must, however, accept that this is the Justice Department’s call to make. [As always, McCarthy makes perfect sense. I think everyone can see that this has become so political, there will be ZERO winners. We will all lose. At this point, the best the general public can hope for is to stop the loss, limit the psychological bleeding and move on. This case is over, except for yelling at each other. Ron P.]

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