No. 20-5143 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _________________ IN RE: MICHAEL T. FLYNN, PETITIONER _________________ On Petition for A Writ of Mandamus To the United States District Court for the District of Columbia _________________ MICHAEL T. FLYNN’S OPPOSITION TO REHEARING EN BANC _________________ HARVEY & BINNALL, PLLC Jesse R. Binnall Lindsay McKasson Abigail Frye 717 King Street Suite 200 Alexandria, Virginia 22314 Telephone: (703) 888-1943 [email protected]SIDNEY POWELL, P.C. Sidney Powell Counsel of Record Molly McCann 2911 Turtle Creek Blvd., Suite 300 Dallas, Texas 75219 Telephone: (214) 707-1775 [email protected]ATTORNEYS FOR PETITIONER MICHAEL T. FLYNN USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 1 of 29
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No. 20-5143
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_________________
IN RE: MICHAEL T. FLYNN, PETITIONER
_________________
On Petition for A Writ of Mandamus
To the United States District Court for the District of Columbia
_________________
MICHAEL T. FLYNN’S OPPOSITION TO REHEARING EN BANC
U.S. 347, 373 (1976)). General Flynn has a constitutional right to be
prosecuted by the Executive Branch—if at all—and certainly not by the
Judicial one. See In re Cheney, 406 F.3d 723, 731 (D.C. Cir. 2005) (en
banc).
General Flynn also has a right not to hemorrhage time and money
in a proceeding that is moot because the previously adverse parties are
now aligned—or to receive orders from a judge no longer presiding over
a live controversy. See Greenlaw v. United States, 554 U.S. 237, 246
(2008) (quoting United States v. Nixon, 418 U.S. 683, 693 (1974)); see also
Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, 2020 WL
3492641, at *15 (U.S. June 29, 2020) (revised July 8, 2020) (affirming
“take care” clause solely within authority of the Executive accountable to
the people). General Flynn’s personal freedom is at stake. He cannot
travel freely, obtain employment, or enjoy a normal life until this case is
dismissed. His very liberty is wrongly impaired until the dismissal is
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 19 of 29
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granted. Forcing General Flynn to continue undergoing such an ultra
vires prosecution in violation of Articles II and III causes him irreparable
harm, and the gravity of the district court’s usurpation of power demands
a prompt dismissal. Fokker Servs., 818 F.3d at 750; Roche, 319 U.S. at
26.6
Judge Sullivan’s extraordinary actions arise solely from his
disagreement with the Government’s decision to dismiss the case against
General Flynn. Not only did he wrongfully tar General Flynn with a
baseless assertion of treason, but he has been vocal that General Flynn
should be punished severely. Pet. App. 77; ECF No. 205 (suggesting
additional perjury charges). Disagreement over a charging decision
provides no basis to deny the government’s motion. Fokker Servs., 818
F.3d at 742-43.
As this Court wrote in Fokker Servs., replete with analysis of Rule
48(a): “[N]umerous decisions of the Supreme Court and this court made
6 The PFR broadly cites the Supreme Court’s recent decision in Seila Law LLC v.
CFPB, No. 19-7 , 2020 WL 3492641 (U.S. June 29, 2020) (revised July 8, 2020) as if
it contradicts the panel decision. PFR 2, 13. Seila Law reaffirmed the powers of the
Article II Executive Branch and merely eschewed any expansion of those limits.
Indeed, the majority held that “[under] our Constitution, the ‘executive Power’—all
of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully
executed.’” Slip op. at 1-2 (citing Art. II § 1, cl. 1).
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 20 of 29
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clear that courts generally lack authority to second-guess the
prosecution's constitutionally rooted exercise of charging discretion. See,
e.g., Wayte, 470 U.S. at 607-08; Microsoft, 56 F.3d at 1460-63;
Ammidown, 497 F.2d at 621-22. Mandamus serves as a check on that
kind of "usurpation of judicial power." Bankers Life & Cas. Co. v.
Holland, 346 U.S. 379, 383 (1953).” 818 F.3d at 749-50.
V. Rehearing En Banc Must Be Denied for Lack of Case or
Controversy.
“[T]here is . . . no case or controversy within the meaning of Art. III
of the Constitution,” when “both litigants desire precisely the same
result.” Moore v. Charlotte-Mecklenburg Bd. Of Educ., 402 U.S. 47, 48
(1971). Judge Sullivan cannot create a controversy or redefine the issues
in defiance of the parties or the Supreme Court’s decision in United States
v. Sineneng-Smith, 140 S. Ct. 1575 (2020). Courts, “do not, or should not,
sally forth each day looking for wrongs to right. [They] wait for cases to
come to [them], and when [cases arise, courts] normally decide only
questions presented by the parties.” Id. at 1579 (citation omitted). See
United States v. Smith, 55 F.3d 157, 160 (4th Cir. 1995) (“A substantial,
reasonable doubt about the guilt of a defendant that arose after
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 21 of 29
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conviction is evidence of good faith. . . it is the duty of the United States
Attorney ‘not simply to prosecute but to do justice.’”) (citations omitted).
These Article III requirements apply to criminal cases no less than
to civil cases. United States v. Juvenile Male, 564 U.S. 932, 936 (2011).
Thus, if the Government and defendant agree that the case should be
dismissed, there remains no dispute between the parties, there is no need
for the court to impose judgment against the defendant, and there is no
basis for the further exercise of the court’s judicial power. “It is a basic
principle of Article III that a justiciable case or controversy must remain
“extant at all stages of review, not merely at the time the complaint is
filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)
(internal quotation marks omitted).
“[T]hroughout the litigation,” the party seeking relief “‘must have
suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial decision.’
(citations omitted).” Juvenile Male, 564 U.S. at 936. The umpire cannot
force the teams to play extra innings after the game is over. He, the
players, and the spectators need to go home and turn off the floodlights.
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 22 of 29
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VI. Conclusion
The district court has hijacked and extended a criminal prosecution
for almost three months for its own purposes. For these reasons and
those in Flynn’s Petition and Reply, and the arguments and briefs of the
Government, this Court should deny rehearing and issue mandamus to
dismiss with prejudice instanter.
Dated: July 20, 2020 Respectfully submitted,
/s/ Jesse R. Binnall
Jesse R. Binnall
Lindsay McKasson
Abigail Frye
HARVEY & BINNALL, PLLC
717 King Street
Suite 200
Alexandria, Virginia 22314
Telephone: (703) 888-1943
/s/ Sidney Powell
Sidney Powell
Counsel of Record
Molly McCann
SIDNEY POWELL, P.C.
2911 Turtle Creek Blvd.,
Suite 300
Dallas, Texas 75219
Telephone: (214) 707-1775
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 23 of 29
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CERTIFICATION OF COMPLIANCE WITH
TYPE-VOLUME LIMIT
This brief complies with the type-volume limit of this Court’s July
10, 2020 Order because it contains 3,897 words. This brief also complies
with the typeface and type-style requirements of Federal Rule of
Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft
Word in Century Schoolbook 14-point font, a proportionally spaced
typeface.
/s/ Sidney Powell
SIDNEY POWELL
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 24 of 29
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CERTIFICATE OF SERVICE
I hereby certify that on July 20, 2020, I electronically filed the
foregoing brief with the Clerk of Court by using the appellate CM/ECF
system. I further certify that the participants in the case are registered
CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
/s/ Sidney Powell
SIDNEY POWELL
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 25 of 29
ADDENDUM Time Stamped Docket Entries……………………………………………………………1a
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 26 of 29
a 1
Notice of Electronic Filing from the U.S. District Court for the District of Columbia for Judge Sullivan’s May 12, 2020 Minute Order Regarding Participation of Amici
Notice of Electronic Filing from the U.S. District Court for the District of Columbia for General Flynn’s May 12, 2020 Unsealed Motion Opposing Amicus Participation
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 27 of 29
a 2
Notice of Electronic Filing from the U.S. District Court for the District of Columbia for Judge Sullivan’s May 13, 2020 Minute Order Denying General Flynn’s Motions Opposing Amicus Participation
Notice of Electronic Filing from the U.S. District Court for the District of Columbia for Judge Sullivan’s May 13, 2020 Order Appointing John Gleeson Amicus Curiae
Docket entry from the U.S. Court of Appeals for the District of Columbia for the filing of General Flynn’s Petition for a Writ of Mandamus
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 28 of 29
a 3
Notice of Electronic Filing from the U.S. District Court for the District of Columbia for Judge Sullivan’s May 19, 2020 Minute Order Setting Briefing Schedule for Consideration of Governments’ Rule 48(a) Motion to Dismiss
USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 29 of 29