Fortunately, the country still has a judicial system. Granted, the law is not fair all the time or equal always. It can be extremely frustrating, but finally, at long last, Americans can see the Judicial Branch of the government prop up up the Legislative Branch as it has struggled for equality with the Executive Branch. Donald Trump and his fixer Attorney General William Bar and his Senate Grim Reaper have done everything within their power to make it so — and failed big time. One lone Federal judge decided to make an unusual move against Donald Trump and his sidekick Attorney General William Barr.
An independent, outspoken judge appeared before an appeals court and stood against the president’s first National Security Adviser Michael Flynn. He was originally hearing the case when AG Barr wanted it dropped. Sullivan appointed the three-panel court to review Barr’s request, but it found against the judge. After its decision, Sullivan asked the court to reconsider its decision to dismiss the charges against Trump’s friend. That almost never happens.
Barr asked the court to drop its case, even though Trump could have pardoned his friend, Flynn. Barr. asked even though Flynn had already admitted to lying to the FBI, which was the charge against him. The attorney general asked even though Flynn had pled guilty to the charges.
This judge wanted to the court “to rethink” its decision.
Judge Emmet Sullivan is in the District Court in Washington, D.C. He filed his petition with the D.C. Circuit Court of Appeals to rehear the case. A three-judge panel let the Department of Justice (DOJ) under new management withdraw its case. Sullivan’s attorney wrote in the petition:
‘The panel’s decision threatens to turn ordinary judicial process upside down. It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions — it does not preempt them.’
Judge Sullivan was not willing to quietly accede and move on to the next case. He wanted to look into the legal questions around Barr’s strange request. So, he appointed outside counsel to give a counterargument to Barr’s motion.
That was when Flynn’s attorney made the request for the D.C. Circuit to step in and make Sullivan grant the motion for a “mandamus petition.” This can occur when an appeals court is asked to place “a command on a lower court.”
Then, the three-judge circuit made its ruling last month against Sullivan in a two-to-one ruling. It ruled that he could not second guess Barr’s DOJ decision to just drop the Flynn case, because is said that Sullivan did not have that authority. The majority judges were both appointed by Republican presidents. They overruled the dissenting judge, who was appointed by President Barack Obama.
Judge Neomi Rao wrote the majority opinion. She was appointed by Trump:
‘In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power.’
She continued, pointing out the judge must have the authority to question the DOJ:
‘If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice.’
That is what has taken Sullivan to the point of requesting the D.C. Circuit to reconsider its decision. It would mean a larger panel of judges. A simple majority of the circuits 11 judges would need to approve any rehearing.
Sullivan argued that the panel’s decision erred in not allowing him to hold a hearing on whether to grant the DOJ’s motion, let alone rule on it:
‘Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold. All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion. Outside the panel opinion, those actions have not been considered inappropriate — much less an extreme separation-of-powers violation justifying mandamus.’
America had a few things to say about this unusual move. Take a look below for their responses:
The Mueller Report Adventures: In Bite-Sizes on this Facebook page. These quick, two-minute reads interpret the report in normal English for busy people. Mueller Bite-Sizes uncovers what is essentially a compelling spy mystery. Interestingly enough, Mueller Bite-Sizes can be read in any order.