After the long Memorial Day weekend, there’s so much news about the Michael Flynn case that we needed a second commentary for the overflow.
First of all, you must be aware by now that Flynn’s name in the conversation with Russian ambassador Sergey Kislyak wasn't masked in the first place --- we’ve talked about the fact that it couldn’t have been because there was no unmasking request for the day of that call --- but there’s more:
President Obama himself ordered the surveillance.
He must have. As Dan Bongino has pointed out, we know this because (here's the new part) Andrew McCabe, right in his own book, says he was ordered by the Presidential Daily Brief staff to find that phone call. Flynn’s call with Kislyak didn’t just happen to be caught in the routine surveillance on the ambassador. It wasn’t just “incidental.” In Bongino’s words, “Flynn was hunted down and targeted by the Obama administration, period.”
That's why Flynn's name wasn't masked in that particular phone call. So, does that mean it was legal to leak Flynn’s name? Heck, no. Andrew McCarthy has pointed out that, oh, by the way, the leak to the media is STILL A FELONY, as the surveilled conversation was classified. It doesn’t matter if Flynn’s name was intended to be hidden or not.
In other news, Flynn’s attorney Sidney Powell is no doubt heartened by the action taken by the D.C. Court of Appeals. In what Margot Cleveland calls “a rare move,” a three-judge panel has ordered Judge (“Judge”) Emmet Sullivan to respond to Powell’s petition for a writ of mandamus.
This is an appeal to the appellate court to order Judge Sullivan to dismiss the criminal charge against Flynn. A writ of mandamus is rarely granted, so Cleveland says that for the panel to order the judge to respond, rather than just denying the petition as is usually done, is a good sign. And they issued the order expeditiously, in just two days. Likewise, they're expecting Sullivan to answer promptly, giving him just 10 days to respond. So Powell’s petition isn’t just languishing on somebody’s desk.
There’s legal precedent to dismiss the case against Flynn: the Fokker case, in which the court held that “decisions to dismiss pending criminal charges --- no less than decisions to initiate charges and to identify which charges to bring –- lie squarely within the ken of prosecutorial discretion.” In this case, that would be the attorney general’s office.
Another good sign: the panel did not order the government to respond, simply allowing the DOJ to respond at its own discretion, or not at all. Apparently, these judges don’t see the necessity of hearing additional arguments from the government.
The fine source “Undercover Huber” has identified the three judges on the panel: Karen Henderson, a Reagan-Bush appointee; Robert Wilkins, an Obama appointee; and Neomi Rao, nominated by Trump to take Brett Kavanaugh’s place on the D.C. Circuit Court when Kavanaugh went to the Supreme Court. Powell does not see politics playing into this decision too much, as Sullivan’s refusal to dismiss the charge is “in violation of clear precedent from the circuit and Supreme Court.”
Cleveland agrees with Powell that “The Department of Justice should weigh in and soon because this case is no longer just about Flynn. It is about separation of powers and the executive branch. Unfortunately, it is also now about Judge Sullivan.”
Funny she should say that. The latest weirdness from Judge Sullivan is that he has gone out and hired himself a lawyer.
In a highly unusual step, Judge Sullivan has lawyered up, with Beth Wilkinson, reportedly “a go-to for high-profile officials in difficult situations.” It’s hard to know what role politics might play; Wilkinson represented Brett Kavanaugh while he was fighting sexual misconduct allegations on his way to Supreme Court confirmation. On the other hand, she’s also a close friend of Obama “fixer” Kathryn Ruemmler.
Flynn’s attorneys are arguing that Judge Sullivan “has no authority to adopt the role of prosecutor or change the issues in the case.” As they observe, “This is an umpire who has decided to steal public attention from the players and focus it on himself. He wants to pitch, bat, run bases and play shortstop. In truth, he is way out in left field.”
I think with that metaphor, Flynn’s lawyers hit it out of the park. It’s hard to know why Sullivan is SO bent on prosecuting Flynn. Maybe he’s just a political hack, but at this point his behavior is downright pathological. Why is he so “dug in,” and what does he need an attorney for? Once again, when something doesn’t seem to make sense, it’s because there’s a piece we don’t have. There’s something going on with Judge Sullivan that we...just don’t know.