No. ____________
___________________________________________________

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
Case No. 1:17-cr-232
___________________________________________________
EMERGENCY PETITION FOR A WRIT OF MANDAMUS
___________________________________________________
HARVEY & BINNALL, PLLC
Jesse R. Binnall
Lindsay McKasson
Abigail Frye
717 King Street
Suite 200
Alexandria, Virginia 22314
Tel: (703) 888-1943

SIDNEY POWELL, P.C.
Sidney Powell
Counsel of Record
Molly McCann
2911 Turtle Creek Blvd.,
Suite 300
Dallas, Texas 75219
Tel: (214) 707-1775

ATTORNEYS FOR PETITIONER MICHAEL T. FLYNN
May 19, 2020

 TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................. i
TABLE OF AUTHORITIES .......................................................................... iii
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES ............................................................ vii
JURISDICTION ............................................................................................ 1
RELIEF SOUGHT ......................................................................................... 2
ISSUE PRESENTED ..................................................................................... 2
FACTS ........................................................................................................... 2
REASONS WHY THE WRIT SHOULD ISSUE ............................................. 7
I. INTRODUCTION .............................................................................. 7
II. STANDARD OF REVIEW ................................................................. 10
III. THE DISTRICT COURT LEGALLY ERRED ......................................... 11
A. The District Court Lacked Authority to
Appoint an Amicus to Oppose the Government’s
Motion to Dismiss or Investigate General Flynn
for Contempt or Perjury. ........................................................ 11
B. The District Court May Not Deny the Motion
to Dismiss and Lacks Authority to Conduct the
Searching Inquiry Proposed by its Chosen Amicus ................ 17

i

 C. This is the Rare Case Where Mandamus is
Warranted. ............................................................................ 26
D. Petitioner’s Right to Relief is “Clear and
Indisputable,” and He Has no Alternative
Avenue of Relief..................................................................... 27
E. Issuance of the Writ is Appropriate....................................... 29
IV. THE COURT SHOULD ORDER THIS CASE
RE-ASSIGNED TO ANOTHER DISTRICT JUDGE. ............................... 31
CONCLUSION ............................................................................................. 34
CERTIFICATE OF SERVICE....................................................................... 35
CERTIFICATION OF COMPLIANCE WITH
TYPE-VOLUME LIMIT ............................................................................... 36

ii

 TABLE OF AUTHORITIES
Cases
Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692
(D.C. Cir. 2014) ....................................................................................... 12
Bordenkircher v. Hayes, 434 U.S. 357 (1978) ............................................ 19
Cmty. for Creative Non–Violence v. Pierce,
786 F.2d 1199 (D.C.Cir.1986) .................................................................. 19
Greenlaw v. United States, 554 U.S. 237 (2008) .......................................... 7
Hollingsworth v. Perry, 558 U.S. 183 (2010) .................................. 12, 13, 14
ICC v. Bhd. of Locomotive Eng'rs, 482 U.S. 270
(1987) ...................................................................................................... 19
In re Aiken Cnty., 725 F.3d 255 (D.C. Cir. 2013) ........................................ 19
In re Barry, 946 F.2d 913 (D.C.Cir.1991); .................................................. 33
In re Kellogg Brown & Root, 756 F.3d 754
(D.C. Cir. 2014) ........................................................................................ 32
In Re Reyes, 814 F.2d 168 (5th Cir. 1987) .............................................. 11, 27
In re United States, 345 F.3d 450 (7th Cir. 2003) ........................ 8, 9, 21, 28
Jin v. Ministry of State Sec., 557 F. Supp. 2d 131
(D.D.C. 2008) ........................................................................................... 17
Liteky v. United States, 510 U.S. 540 (1994) ........................................ 33, 34
Newman v. United States, 382 F.2d 479
(D.C. Cir.1967) ................................................................................... 19, 20
Rinaldi v. United States, 434 U.S. 22 (1977)........................................... 8, 20
iii

 Roche v. Evaporated Milk Ass'n, 319 U.S. 21 (1943) .................................. 10
SEC v. First City Fin. Corp., 890 F.2d 1215
(D.C.Cir.1989) .......................................................................................... 33
United States v. Armstrong, 517 U.S. 456 (1996) ...................... 19, 20, 21, 25
United States v. Batchelder, 442 U.S. 114 (1979)........................................ 19
United States v. Flynn, No. 17-232 (D.DC Dec. 18, 2019) ...................... 4, 16
United States v. Fokker Servs., B.V., 818 F.3d 733
(D.C. Cir. 2016) ................................................................................. passim
United States v. Hector, 577 F.3d 1099 (9th Cir.2009) ................................ 8
United States v. Nixon, 418 U.S. 683 (1974) ................................................. 9
United States v. Samuels, 808 F. 2d 1298 (8th Cir. 1987) ............................ 7
United States v. Sineneng-Smith, No. 19–67
(U.S. May 7, 2020) ...................................................................... 1, 8, 10, 26
Wayte v. United States, 470 U.S. 598 (1985) ............................................. 19
Weil v. Neary, 278 U. S. 160, 169 (1929) .................................................... 12
Statutes
18 U.S.C. § 1001 ..................................................................................1, 22, 24
28 U.S.C. § 2071 .......................................................................................... 12
28 U.S.C. § 1651(a) ........................................................................................ 1

iv

 Other Authorities
Alan M. Dershowitz, Judges are Umpires,
Not Ringmasters, WALL ST. J. (May 13, 2020, 12:29 PM)
https://www.wsj.com/articles/judges-areumpires-not-ringmasters-11589387368.................................................. 14
Demetri Sevastopulo, ‘You sold your country out,’ judge
tells Michael Flynn as sentence delayed, THE IRISH
TIMES (Dec. 18, 2018, 6:54 PM)
https://tinyurl.com/y7e5lxvz .................................................................. 31
Griffin Connolly, Judge Lights Into Michael Flynn:
‘You Sold Your Country Out,’ ROLL CALL
(Dec. 18, 2018, 1:03 PM) http://tiny.cc/p1h9oz ..................................... 31
John Gleeson, David O'Neil, and Marshall Miller,
The Case Isn’t Over Until the Judge Says it’s Over,
WASH. POST (May 11, 2011),
https://www.washingtonpost.com/opinions/2020/
05/11/flynn-case-isnt-over-until-judge-says-its-over/ ............................15
Shannon LaFraniere and Adam Goldman, ‘Not Hiding
My Disgust’: Judge Rebukes Flynn, Then Delays
Sentencing, N.Y. TIMES (Dec. 28, 2018)
https://tinyurl.com/ybh2czv6 ................................................................. 31
Stephanie Kirchgaessner, 'I can’t hide my disgust,
my disdain’: judge lambasts Michael Flynn,
THE GUARDIAN (Dec. 18, 2018, 5:26 PM)
https://tinyurl.com/ycbt6ayr .................................................................. 31
Victoria Albert, Judge asks prosecutors whether
Mike Flynn could have been charged with treason,
THE DAILY BEAST (Dec. 18, 2018, 4:06 PM)
https://tinyurl.com/ycx45gvt .................................................................. 31

v

 Rules
Federal Rule of Appellate Procedure 29....................................................... 17
Federal Rule of Criminal Procedure 48(a) .................................... vii, 8, 9, 20
U.S. District Court for the District of
Columbia Local Civil Rules ........................................................... 11, 16, 17

vi

 CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
Pursuant to Circuit Rule 28(a)(1), counsel for Petitioner Michael T.
Flynn make the following certification:
(A) Parties and Amicus.
Petitioner:

Michael T. Flynn.

Respondents:

United States District Judge Emmet G. Sullivan.

United States:

Timothy O’Shea, United States Attorney,
District of Columbia.

Amicus:

John Gleeson, Esq.

(B) Ruling Under Review. The district court’s appointment of an
amicus curiae to consider additional charges against General Flynn,
ECF No. 205; its unnumbered minute order of May 18, 2020, granting
amicus pro hac vice status in the case; its order indicating it will grant
a schedule for amici, App. 3; and, its failure to grant the Government’s
Motion to Dismiss with Prejudice pursuant to Rule 48(a), ECF No. 198.
(C) Related Cases. This case has not previously been before this
Court. There are no pending related cases.
/s/ Sidney Powell
Sidney Powell
SIDNEY POWELL, P.C.

vii

 JURISDICTION
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.
This Court has jurisdiction pursuant to the All Writs Act, which
authorizes federal courts to issue writs “in the aid of their respective
jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C.
§1651(a). The district court’s failure to grant the Government’s Motion to
Dismiss defies this Court’s binding precedent in United States v. Fokker
Servs., B.V., 818 F.3d 733, 740 (D.C. Cir. 2016). The district court’s sua
sponte appointment of an amicus to oppose the Government’s motion and
its Minute Order to issue a schedule for additional amici are at loggerheads
with the unanimous Supreme Court opinion in United States v. SinenengSmith, No. 19–67 (U.S. May 7, 2020).

1

 RELIEF SOUGHT
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.
ISSUE PRESENTED
Whether the district court exceeded its authority and egregiously
abused its discretion by failing to grant the Government’s Motion to Dismiss
the Criminal Information and, instead, appointing an amicus to oppose the
motion and to propose contempt and perjury charges against General Flynn,
while inviting additional amici.
FACTS
On January 24, 2017, Michael T. Flynn, the National Security Advisor
to the newly-elected President of the United States, was interviewed at the
White House by two agents of the Federal Bureau of Investigation—Peter
Strzok and Joseph Pientka. As former FBI Director James Comey later
bragged on television, he “just sent them”—in violation of known protocols.
A fresh review of the Government’s file by U.S. Attorney Jeffrey Jensen
revealed long-suppressed Brady material establishing the FBI had no
legitimate reason to interview General Flynn.
2

 The recently disclosed material also shows that members of the FBI
had plotted to interview General Flynn without the standard section 1001
warnings to “get him to lie so we can prosecute him or get him fired.” ECF
No. 198-11. Text messages between the FBI Agents Peter Strzok and Lisa
Page (Deputy FBI Director Andrew McCabe’s special counsel), revealed that,
weeks after the pretextual interview, Strzok was still rewriting the 302 so
completely that he struggled to “maintain Joe [Pientka]’s voice.” ECF No.
198-8. Page and Strzok massaged the 302 until McCabe approved it, and it
was filed as final on February 15, 2017—two days after General Flynn
resigned from the White House. Id.
General Flynn pled guilty on December 1, 2017.1 A year later, on what
was scheduled to be his sentencing, for which the Government had filed a
motion for downward departure and certified his “substantial cooperation,”
Judge Sullivan publicly berated him. He suggested he may have committed
“treason,” asserted that he had “sold [his] country out,” and expressed

The plea was taken by Judge Rudolph Contreras who, a few days
later, recused without explanation, and the case was transferred to Judge
Emmet G. Sullivan. It soon became public that Contreras and Strzok are
friends. Strzok’s now-infamous texts with Page exploded into the news the
morning after Special Counsel Mueller coerced Flynn into taking a swift plea
with threats to indict his son and give them both the “Manafort treatment” if
Flynn did not immediately surrender his claim to innocence.
1

3

 “disdain” and “disgust” for General Flynn’s conduct—flat wrong on crucial
facts of the case. Hr’g Tr., United States v. Flynn, No. 17-232, (D.D.C Dec.
18, 2018) at 36:1-3, 9-10; 33:13-14, 21-23. App. 1: 34, 37. Before Judge
Sullivan returned from recess, explosive headlines of General Flynn’s
“treason” permeated international news.

Judge Sullivan postponed

sentencing, after making clear that General Flynn faced prison despite the
Government’s recommendation of leniency.
In June 2019, General Flynn fired his defense team and current
counsel appeared—immediately requesting Brady material from the
Government.

When informal requests were unsuccessful and AUSA

Brandon Van Grack (on detail to the Special Counsel’s Office) claimed he had
produced everything to which the defense was entitled, General Flynn filed a
Motion to Compel the Production of Brady Material and For an Order to
Show Cause. ECF No. 109. After extensive briefing, ECF No. 129, 132, 135,
Judge Sullivan issued a 92-page denial on December 16, 2019. ECF No. 144.
Meanwhile, the Inspector General for the Department of Justice filed
the long-awaited report, Office of the Inspector General (OIG), A Review of
Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane
Investigation, Oversight and Review Division Report 20-012 Revised
(December 2019) https://www.justice.gov/storage/120919examination.pdf
4

 (“IG Report”). The IG Report disclosed for the first time that Agent Pientka
had been surreptitiously slipped into a presidential briefing for nominee
Trump on August 17, 2016, because General Flynn would be attending. IG
Report at 340. The FBI had decided to have Pientka attend that meeting to
“assess” Flynn’s mannerisms and collect information in case the FBI needed
to interview him later (i.e. if Flynn were in the White House after Trump’s
election). Id. This prompted General Flynn’s Supplemental Motion to
Dismiss for Egregious Government Misconduct and Brady Violations. ECF
No. 160-2.
General Flynn also filed motions to withdraw his guilty plea because of
the Government’s breach of the plea agreement, the conflict of interest of his
prior counsel, failure of the court to comply with Rule 11, the lack of factual
basis for the plea, and ineffective assistance of counsel that rendered his plea
unknowing and involuntary. ECF Nos. 151, 160.
In early 2020, the Attorney General asked United States Attorney
Jeffrey Jensen of the Eastern District of Missouri to review General Flynn’s
prosecution. Jensen had served as an FBI agent for ten years and later as an
AUSA for another ten years.
Months of contentious litigation culminated on April 24, 2020, when
the Government produced four pages of long-withheld Brady material. ECF
5

 No. 180. A later tranche of damning evidence showed that the FBI interview
was a setup and the 302 was doctored—just as General Flynn had suggested.
ECF Nos. 187, 188, 189.
On May 7, 2020, the United States Attorney for the District of
Columbia acknowledged the Government’s longstanding failure to produce
Brady evidence and the lack of a legitimate basis for what amounted to a
charge fabricated against General Flynn, and the Government moved to
dismiss the Information with prejudice in the interest of justice. ECF No.
198. The Government acknowledged that General Flynn’s statements to the
FBI were not material to a legitimate investigation, and there was no crime.
Id.
On May 11, 2020, just four days later, a collection of former prosecutors
(“The Watergate Group”) emailed the court, clerk, and counsel—giving
notice of intent to File a Motion for Leave to File an Amicus Brief. App. 2:
64-73.
The defense promptly objected to allowing any amici before the district
court acted. See ECF No. 204. The court did not address the Motion to
Dismiss that had been pending for five days. Instead, it issued a de facto call
for amicus briefs by advising that “at the appropriate time, the Court will
enter a Scheduling Order governing the submission of any amicus curiae
6

 briefs.”

App. 3: 75. The following day, the court, sua sponte, entered an

order appointing “the Honorable John Gleeson (Ret.) [sic] as amicus curiae
to present arguments against the government’s Motion to Dismiss.” ECF No.
205. The court’s order instructed Mr. Gleeson to advise “whether the Court
should issue an Order to Show Cause why Mr. Flynn should not be held in
criminal contempt for perjury.” Id. Mr. Gleeson has now appeared and
proposes, inter alia, to advise the court as to “any additional factual
development [he] may need before finalizing [his] argument in opposition to
the government’s motion in this case.” ECF No. 209.
REASONS WHY THE WRIT SHOULD ISSUE
I.

Introduction

The district court has disregarded the constitutional imperative of a
“case and controversy” and the “separation of powers” that invests the power
to prosecute solely in the executive branch. In the American system, the
parties “frame the issues for decision” while the courts take the role of
“neutral arbiter of matters the parties present.” Greenlaw v. United States,
554 U.S. 237, 243 (2008).
The Supreme Court recently noted: “‘[C]ourts are essentially passive
instruments of government.’ United States v. Samuels, 808 F. 2d 1298, 1301
(8th Cir. 1987) (Arnold, J., concurring in denial of reh’g en banc). They ‘do
7

 not, or should not, sally forth each day looking for wrongs to right.’”
Sineneng-Smith, slip op at 4. “Our system is designed around the premise
that [parties represented by competent counsel] know what is best for them
and are responsible for advancing the facts and argument entitling them to
relief.” Id. at 7 (internal citations omitted).
The principle of party autonomy is particularly salient in criminal cases
where the power to prosecute is assigned by the Constitution to the executive
branch. As the United States notes in its motion to dismiss:
Federal Rule of Criminal Procedure 48(a) permits the Government,
“with leave of court,” to “dismiss an indictment, information or
complaint.” Fed. R. Crim. P. 48(a). It is also “well established that
the Government may move to dismiss even after a complaint has
turned into a conviction because of a guilty plea.” United States v.
Hector, 577 F.3d 1099, 1101 (9th Cir.2009) (collecting cases); see
also Rinaldi v. United States, 434 U.S. 22, 31 (1977) (finding an
abuse of discretion to refuse to grant post-conviction Rule 48(a)
motion).
When the Government so moves, the role for courts addressing Rule
48(a) motions is “narrow” and circumscribed. United States v.
Fokker Servs., B.V., 818 F.3d 733, 742 (D.C. Cir. 2016). The “leave of
court” provision serves “primarily to guard against the prospect that
dismissal is part of a scheme of ‘prosecutorial harassment’ of the
defendant” through repeated prosecutions—a prospect not
implicated by, as here, a motion to dismiss with prejudice. Id. at 742
(citing Rinaldi, 434 U.S. at 29 n.15); see also In re United States, 345
F.3d 450, 453 (7th Cir. 2003) (no such concerns where “[t]he
government wants to dismiss the civil rights count with prejudice,
and that is what [the defendant] wants as well”).
ECF No. 198, at 10-11.
8

 This Court has held that the discretion of the Justice Department under
Rule 48(a) is predominant, while the role of the judge is ministerial:
“[D]ecisions to dismiss pending criminal charges ... lie squarely within the
ken of prosecutorial discretion” and “‘at the core of the Executive’s duty to
see to the faithful execution of the laws.’” Fokker Servs., 818 F.3d at 741
(citation omitted); see also United States v. Nixon, 418 U.S. 683, 693 (1974)
(“[T]he Executive Branch has exclusive authority and absolute discretion to
decide whether to prosecute a case.”).
A district court cannot deny the Government’s motion to dismiss
because the judge has “a disagreement with the prosecution’s exercise of
charging authority,” such as “a view that the defendant should stand trial” or
“that more serious charges should be brought.” Fokker Servs., 818 F.3d at
742-43. Nor should a court second-guess the Government’s “conclusion that
additional prosecution or punishment would not serve the public interest.”
Id. at 743; see also In re United States, 345 F.3d at 453 (“We are unaware …
of any appellate decision that actually upholds a denial of a motion to dismiss
a charge” on grounds that dismissal would not serve the “public interest.”).
The district court has no authority to adopt the role of prosecutor or
change the issues in the case by inviting or appointing amici to perform the
investigation or prosecution that the court deems appropriate. Less than two
9

 weeks ago, in Sineneng-Smith, the Supreme Court unanimously reversed a
similar usurpation by the Ninth Circuit in an opinion authored by a venerable
alumna of this Court.
II.

Standard of Review

While, “[a] mandamus petitioner must demonstrate that its right to the
writ is ‘clear and indisputable,’” Fokker Servs., 818 F.3d at 749, “numerous
decisions of the Supreme Court and this court made clear that courts
generally lack authority to second-guess the prosecution's constitutionally
rooted exercise of charging discretion. Mandamus serves as a check on
that kind of ‘usurpation of judicial power.’” Id. at 750 (citations
omitted) (emphasis added).

“The traditional use of the writ in aid of

appellate jurisdiction both at common law and in the federal courts has been
to confine an inferior court to a lawful exercise of its prescribed jurisdiction
or to compel it to exercise its authority when it is its duty to do so.” Roche v.
Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943).
While every mandamus petition must meet the familiar three-factor
test, namely that (i) the petitioner has no adequate alternative remedy for
obtaining the relief he desires; (ii) his right to relief is clear and indisputable;
and (iii) he persuades the court that, in the exercise of its discretion, the writ
10

 is appropriate under the circumstances, Fokker Servs., 818 F.3d at 747,
"[w]hen the writ of mandamus is sought from an appellate court to confine a
trial court to a lawful exercise of its prescribed authority, the court should
issue the writ almost as a matter of course." In Re Reyes, 814 F.2d 168, 170
(5th Cir. 1987). If there is “a threshold question concerning ... jurisdiction to
review the district court’s interlocutory order ... [this Court] first consider[s]
whether the district court legally erred.” Fokker Servs., 818 F.3d at 740.
III. The District Court Legally Erred
Binding Supreme Court and Circuit precedent squarely foreclose the
district court’s determination to continue the prosecution of General Flynn.
The district court order appointing an amicus is both unauthorized and
bespeaks a disturbing lack of appreciation of the court’s limited role when
confronted with a motion to dismiss by the Government in a criminal case.
A. The District Court Lacked Authority to Appoint an Amicus
to Oppose the Government’s Motion to Dismiss or
Investigate General Flynn for Contempt or Perjury.
Neither the Federal Rules of Criminal Procedure nor the district court’s
local rules authorize amicus participation in criminal cases. This is in sharp
contrast to the district court rule governing civil cases, which does authorize
the filing of amicus briefs.

LCvR 7(o).
11

Under the canon of statutory

 construction expressio unius est exclusio alterius, the express mention of
amicus briefs on the civil side must be understood to exclude them on the
criminal side. See Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 697 (D.C.
Cir. 2014) (“the canon's relevance and applicability must be assessed within
the context of the entire statutory framework”) (emphasis added). The
Supreme Court has held that this canon applies to the interpretation of
district court local rules:
Notably, the [Local] Rule excepted from its general ban the
transmittal of certain proceedings—but it limited that exception to
transmissions “within the confines of the courthouse.” The negative
inference of this exception, of course, is that the Rule would have
prohibited the streaming of transmissions, or other broadcasting or
televising, beyond “the confines of the courthouse.”
Hollingsworth v. Perry, 558 U.S. 183, 192 (2010).
The judges of district court, having acted collectively under the
authority of Congress, 28 U.S.C. §2071, made a reasoned decision to allow
amicus briefs in civil but not criminal cases. “Those rules have ‘the force of
law.’ Weil v. Neary, 278 U. S. 160, 169 (1929).” Hollingsworth, 558 U.S. at
191.
Prior to issuance of its extraordinary May 12, 2020, order, the district
judge adhered scrupulously to the district court’s rules, denying some two
dozen attempts by third parties to intervene or file amicus briefs in this very
12

 case. A December 20, 2017, Minute Order denies such a motion with a
detailed explanation:
MINUTE ORDER. This Court has received several motions to
intervene/file an amicus brief along with letters in support from a
private individual who is neither a party to this case nor counsel of
record for any party. The Federal Rules of Criminal Procedure do not
provide for intervention by third parties in criminal cases. The Court
recognizes that the movant sincerely believes that he has
information to share that bears on this case, and that,
understandably, he wishes to be heard. Options exist for a private
citizen to express his views about matters of public interest, but the
Court's docket is not an available option. The docket is the record
of official proceedings related to criminal charges brought
by the United States against an individual who has pled
guilty to a criminal offense. For the benefit of the parties in
this case and the public, the docket must be maintained in
an orderly fashion and in accordance with court rules. The
movant states that he disagrees with the similar Minute Order issued
by Judge Berman Jackson in Criminal Case Number 17-201, but the
contrary legal authority on which he relies is neither persuasive nor
applicable. Therefore, the Clerk is directed not to docket additional
filings submitted by the would-be intervenor. If the individual seeks
relief from this Court's rulings, he must appeal the rulings to the
United States Court of Appeals for the District of Columbia Circuit.
Signed by Judge Emmet G. Sullivan on 12/20/2017. (lcegs3)
(Entered: 12/20/2017). [Emphasis added.]
As the Supreme Court held in Hollingsworth, rules of court, no less
than other regulations, are binding, not just on the parties, but the court
itself. “If courts are to require that others follow regular procedures, courts
must do so as well.” 558 U.S. at 199. Any change to the rules may not be
implemented by a single judge in a particular case but must be initiated by
13

 the full court pursuant to its rule-making processes and subject to the
requirement of public notice-and-comment. Id. at 193. “The Court's interest
in ensuring compliance with proper rules of judicial administration is
particularly acute when those rules relate to the integrity of judicial
processes.” Id. at 196. In Hollingsworth, this interest was sufficiently
important for the Court to stay a high-visibility civil case—the morning trial
was set to begin—to prevent broadcast of the trial to remote federal
courthouses.
As this Court is aware, the prosecution of General Flynn has garnered
at least as much publicity as the trial at issue in Hollingsworth. The district
court’s disregard of rules that “have ‘the force of law’” in a criminal case,
where concerns for “the integrity of the judicial process” are at their zenith,
has been widely reported and drawn massive attention and criticism of the
federal judiciary and this judge in particular. In the words of fabled Harvard
Law Professor Alan Dershowitz, this undermines the notion that “Judges are
Umpires, Not Ringmasters.”

WALL ST. J. (May 13, 2020, 12:29 PM)

https://www.wsj.com/articles/judges-are-umpires-not-ringmasters11589387368.
This adverse effect will be exacerbated by the fact that the person the
district court appointed to “present arguments in opposition to the
14

 government’s Motion to Dismiss” and to “address whether the Court should
issue an Order to Show Cause why General Flynn should not be held in
criminal contempt for perjury” had just published an opinion piece
excoriating the Department of Justice’s Motion to Dismiss as “smack[ing] of
impropriety,” of attempting to make the court “a party to corruption,” and of
“reek[ing] of improper political influence.” John Gleeson, David O'Neil, and
Marshall Miller, The Case Isn’t Over Until the Judge Says it’s Over, WASH.
POST (May 11, 2011, 6:52 PM), https://www.washingtonpost.com/opinions/
2020/05/11/flynn-case-isnt-over-until-judge-says-its-over/.

Mr. Gleeson

advocated that the court “assess the credibility of the department’s stated
reasons for abruptly reversing course,” “compel the department to reveal”
classified information, and “appoint an independent attorney to act as a
‘friend of the court’ . . . .”2 It did not take the district court long to follow
these suggestions by appointing Mr. Gleeson as amicus.

Similarly, the Watergate Group expressed its intent to seek leave to
file a brief of amici to address “procedures that the Court can and should
follow, such as conducting a hearing or potentially appointing counsel to
assist the Court; whether a dismissal, if any, should be with or without
prejudice; and whether the Court should instead deny the Motion and
proceed to sentencing.” Because this document was e-mailed and not
docketed, it is App. 2.
2

15

 The district court’s order appointing Mr. Gleeson as amicus cites the
court’s “inherent authority” and two cases (discussed below) to support the
appointment. An order issued a day earlier is also revealing. That order
noted, without mentioning the undocketed correspondence from the
Watergate Group, that “the Court anticipates that individuals and
organizations will seek leave of the Court to file amicus curiae briefs pursuant
to Local Civil Rule 7(o). There is no analogous rule in the Local Criminal
Rules, but ‘[the Local Civil] Rules govern all proceedings in the United States
District Court for the District of Columbia.’ LCvR 1.1.”

United States v.

Flynn, Crim. No. 17-232 (D.D.C. Minute Order May 12, 2020). App. 3: 75.
However, the local civil rules cannot be read as authorizing procedures
that the criminal rules exclude. By the district court’s logic, all the civil
rules—some 130 pages—are incorporated into the criminal rules, whenever
the criminal rules are silent. This includes Duty to Confer, LCvR 16.3,
Pretrial Statements, LCvR 16.5, Class Actions, LCvR 23.1, Discovery, LCvR
26.2, Motions for Summary Judgment, LCvR 7(h), Temporary Restraining
Orders, LCvR 65.1, and a multitude of other procedures that no reasonable
person would interpret as applying to criminal cases. Nor does the court
have “inherent authority” to circumvent the rules, any more than did the
district court in Hollingsworth.
16

 The district court cites two cases that do not support its orders: Jin v.
Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008), and this
Court’s opinion in Fokker Servs. But those courts were authorized to
entertain amicus briefs—in Jin by LCvR 7(o), because it was a civil case, and
in Fokker Servs. by Fed. R. App. P. 29, which authorizes this Court, unlike
the district court, to entertain amicus briefs in criminal cases.
The May 12, 2020, Minute Order establishes the court’s intent to allow
multiple additional amicus briefs: “Accordingly, at the appropriate time, the
Court will enter a Scheduling Order governing the submission of any amicus
curiae briefs.” App. 3: 75. As with its appointment of Mr. Gleeson as amicus,
nothing of the sort is authorized by the district court rules or any other
authority. It undermines the prerogative to decline prosecutions which, as
this Court held in Fokker Servs., is the Government’s alone.
B. The District Court May Not Deny the Motion to Dismiss
and Lacks Authority to Conduct the Searching Inquiry
Proposed by its Chosen Amicus.
In its seminal Fokker Servs. opinion, this Court granted mandamus
where the district court denied a joint motion to suspend the running of the
Speedy Trial Act clock in accordance with a plea bargain that included a
Deferred Prosecution Agreement (DPA). 818 F.3d at 738. The court had
denied the motion because “in the court's view, the prosecution had been too
17

 lenient …. [T]he court disagreed with prosecutors' decision to forgo bringing
any criminal charges against individual company officers.” Id. at 738-39.
Ordering the district court to grant the motion, this Court offered a
textbook discourse on the allocation of authority between the district court
and the Government in criminal cases, with proper emphasis on the
separation of powers that necessarily constrains the court’s authority:
The Constitution allocates primacy in criminal charging decisions to
the Executive Branch. The Executive's charging authority embraces
decisions about whether to initiate charges, whom to prosecute,
which charges to bring, and whether to dismiss charges once
brought. It has long been settled that the Judiciary generally
lacks authority to second-guess those Executive
determinations, much less to impose its own charging
preferences. The courts instead take the prosecution's charging
decisions largely as a given, and assume a more active role in
administering adjudication of a defendant's guilt and determining
the appropriate sentence.
Fokker Servs., 818 F.3d at 737 (emphasis added).
Later in its opinion, the Court observed: “In vacating the district court
order, we have no occasion to disagree (or agree) with that court's concerns
about the government's charging decisions in this case. Rather, the
fundamental point is that those determinations are for the Executive—not
the courts—to make.” Id. at 738.
These were not ex-cathedra ruminations of the unanimous panel.
Rather, they were supported by long-standing tradition as to the
18

 constitutionally-mandated allocation of authority between the district court
and the Government in criminal cases:
The Executive's primacy in criminal charging decisions is long
settled. That authority stems from the Constitution's delegation of
"take Care" duties, U.S. Const. art. II, § 3, and the pardon power, id.
§ 2, to the Executive Branch. See United States v. Armstrong, 517
U.S. 456, 464 (1996); In re Aiken Cnty., 725 F.3d 255, 262- 63 (D.C.
Cir. 2013). Decisions to initiate charges, or to dismiss charges once
brought, "lie[] at the core of the Executive's duty to see to the faithful
execution of the laws." Cmty. for Creative Non–Violence v. Pierce,
786 F.2d 1199, 1201 (D.C.Cir.1986). The Supreme Court thus has
repeatedly emphasized that "[w]hether to prosecute and what
charge to file or bring before a grand jury are decisions that generally
rest in the prosecutor's discretion." United States v. Batchelder, 442
U.S. 114, 124 (1979); see Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978).
Correspondingly, "judicial authority is ... at its most limited" when
reviewing the Executive's exercise of discretion over charging
determinations. Pierce, 786 F.2d at 1201 see ICC v. Bhd. of
Locomotive Eng'rs, 482 U.S. 270, 283 (1987). The decision whether
to prosecute turns on factors such as "the strength of the case, the
prosecution's general deterrence value, the Government's
enforcement priorities, and the case's relationship to the
Government's overall enforcement plan." Wayte v. United
States, 470 U.S. 598, 607 (1985). The Executive routinely
undertakes those assessments and is well equipped to do so. By
contrast, the Judiciary, as the Supreme Court has explained,
generally is not "competent to undertake" that sort of
inquiry. Id. Indeed, "[f]ew subjects are less adapted to judicial
review than the exercise by the Executive of his discretion in
deciding when and whether to institute criminal proceedings, or
what precise charge shall be made, or whether to dismiss a
proceeding once brought." Newman v. United States, 382 F.2d 479,
480 (D.C.Cir.1967). "Judicial supervision in this area" would also
"entail[] systemic costs." Wayte, 470 U.S. at 608. It could "chill law
enforcement," cause delay, and "impair the performance of a core
19

 executive constitutional function." Armstrong, 517 U.S. at
465 (quotation omitted). As a result, "the presumption of regularity"
applies to "prosecutorial decisions and, in the absence of clear
evidence to the contrary, courts presume that [prosecutors] have
properly discharged their official duties." Id. at 464 (internal
quotation marks, quotation, and alterations omitted).
Fokker Servs., 818 F.3d at 741-42.
The Court then rejected any notion that the "leave of court" language
in Fed. R. Crim. P 48(a) upended this constitutional balance:
That language could conceivably be read to allow for considerable
judicial involvement in the determination to dismiss criminal
charges. But 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. See
e.g., Newman, 382 F.2d at 480. To that end, the Supreme Court has
declined to construe Rule 48(a)'s "leave of court" requirement to
confer any substantial role for courts in the determination whether
to dismiss charges. Rather, the "principal object of the ‘leave of court’
requirement" has been understood to be a narrow one—"to protect a
defendant against prosecutorial harassment ... when the
[g]overnment moves to dismiss an indictment over the defendant's
objection." Rinaldi v. United States, 434 U.S. 22, 29 n. 15 (1977). A
court thus reviews the prosecution's motion under Rule 48(a)
primarily to guard against the prospect that dismissal is part of a
scheme of "prosecutorial harassment" of the defendant through
repeated efforts to bring—and then dismiss—charges. Id.
So understood, the "leave of court" authority gives no power to a
district court to deny a prosecutor's Rule 48(a) motion to dismiss
charges based on a disagreement with the prosecution's exercise of
charging authority. For instance, a court cannot deny leave of
court because of a view that the defendant should stand
trial notwithstanding the prosecution's desire to dismiss
the charges, or a view that any remaining charges fail
adequately to redress the gravity of the defendant's alleged
20

 conduct. See In re United States, 345 F.3d 450, 453 (7th Cir.2003).
The authority to make such determinations remains with
the Executive.
Fokker Servs., 818 F.3d at 742 (emphasis added).
Fokker Servs. did acknowledge there may be a limited role for the court
where it appears that the parties were attempting to “evade” statutory
constraints. Id. at 746. However, it does not apply here. Moreover, the
district court must be mindful that "the presumption of regularity" applies to
‘prosecutorial decisions and, in the absence of clear evidence to the
contrary, courts presume that [prosecutors] have properly discharged their
official duties.’” Id. at 741 (quoting United States v. Armstrong, 517 U.S. 456,
464 (1996) (emphasis added; alteration in original)). The Government’s
lengthy motion and exhibits make clear it acted properly here.
Assuming any such authority exists, but see In re United States, 345
F.3d at 453 (dubitante), there is nothing in this record—much less clear
evidence—to undermine the presumption of regularity that attaches to the
Government’s Motion to Dismiss. The Government’s motion explains in
plain terms the reasons for the Government’s change in position: “After a
considered review of all the facts and circumstances of this case, including
newly discovered and disclosed information appended to the defendant’s
supplemental pleadings, the Government has concluded that the interview
21

 of Mr. Flynn was untethered to, and unjustified by, the FBI’s
counterintelligence investigation into Mr. Flynn—a no longer justifiably
predicated investigation that the FBI had, in the Bureau’s own words,
prepared to close because it had yielded an ‘absence of any derogatory
information.’” ECF No. 198 at 4 (citations omitted) (emphasis added).
“Having repeatedly found ‘no derogatory information’ on Mr. Flynn,
[Ex. 1] at 2, the FBI’s draft ‘Closing Communication’ made clear that the FBI
had found no basis to ‘predicate further investigative efforts’ into whether
Mr. Flynn was being directed and controlled by a foreign power (Russia) in
a manner that threatened U.S. national security or violated FARA or its
related statutes, id. at 3.” Id. at 13. The FBI nevertheless decided to interview
General Flynn, not to serve a legitimate investigative purpose, but to frame
him with a bogus violation of 18 U.S.C. §1001—and altered the 302 to achieve
that goal.
To that end, FBI officials at the highest level circumvented standard
Justice Department procedures by failing to notify the White House
Counsel’s Office of the interview, advising the Acting Attorney General only
after “agents were already on their way to the White House to interview Mr.
Flynn,” ECF No. 198 at 7, and failing to give him the standard “warnings that
making false statements would be a crime.” Id. at 9. The decision to bypass
22

 these procedures were made by then-FBI Director Comey, who later preened
that this was “something we, I probably wouldn’t have done or gotten away
with in a [] more organized administration.” Id. at 7 (quoting December
2018 interview with MSNBC and NBC News analyst Nicolle Wallace).
There is much more information in the Government’s motion (and in
the multiple defense motions that preceded it) that the Special Counsel failed
to disclose to General Flynn or his lawyers, despite the district court’s
standing Brady order and repeated denials that such evidence even existed.
All this information bears directly on the “materiality” element of a section
1001 prosecution. U.S. Attorney Jensen’s discovery of this Brady material
led the Government to conclude that it “does not have a substantial federal
interest in penalizing a defendant for a crime that it is not satisfied occurred
and that it does not believe it can prove beyond a reasonable doubt ....” ECF
No. 198 at 12.
As the Government also points out, the “materiality” element of a
section 1001 prosecution is an important protection of personal liberty which
“prevents law enforcement from fishing for falsehoods merely to
manufacture jurisdiction over any statement—true or false—uttered by a
private citizen or public official.” Id. at 13. General Flynn rotely “stipulated
to the essential element of materiality without cause to dispute it insofar as
23

 it concerned not his course of conduct but rather that of the agency
investigating him.” Id. at 19. General Flynn could swear truthfully that he
committed the acts constituting the crime with which he was charged—after
all he had no duty to tell FBI line agents about missions he undertook in his
capacity as Security Advisor to the President Elect—but he had to accept on
faith that the questions were “material” to a legitimate criminal
investigation, even though that was not made clear to him at the time.3 In
truth, they were not.
Because the Government failed to disclose this information to the
defense, General Flynn had no way of knowing that it was false. Now
additional facts have established he was not interviewed for a legitimate
purpose, and therefore any statements he made were not “material” under
18 U.S.C. §1001, the Government justly believes that he is not guilty of any
crime. “[T]he balance of proof, the equities, and the federal interest served

Nor, as the Government explains, was there anything unlawful or
improper about General Flynn’s conversations with Ambassador Kislyak:
“Mr. Flynn, as the incumbent National Security Advisor and senior member
of the transition team, was reaching out to the Russian ambassador in that
capacity. In the words of one senior DOJ official: ‘It seemed logical ... that
there may be some communications between an incoming administration
and their foreign partners.’ App. 3 at 3. Such calls are not uncommon when
incumbent public officials preparing for their oncoming duties seek to begin
and build relationships with soon-to-be counterparts.” ECF No. 198 at 14.
3

24

 by continued prosecution of false statements that were not ‘material’ to any
bona fide investigation,” all favor dismissing the prosecution. ECF No. 198
at 19-20.
The Government has amply supported its assertions with documents
appended to its motion.

Nothing in the record casts doubt on the

Government’s reasons for moving to dismiss. Nor is there anything outside
the record—and certainly nothing cited by the district court—that justifies
the outrageous suggestions of “impropriety,” “corruption,” or “improper
political influence” flung by the district court’s chosen amicus in the
Washington Post.
To rebut “the presumption of regularity” that attaches to prosecutorial
decisions, this Court and the Supreme Court require “clear evidence to the
contrary.” Fokker Servs., 818 F.3d at 741 (quoting Armstrong, 517 U.S. at
464). Here, there is no evidence to the contrary, so the district court lacks
authority to do anything but grant the Motion to Dismiss, as it has done
routinely in other cases—including after guilty pleas.4 It is unheard of to

For example, in 2009, the FBI arrested twenty-two people for
Foreign Corrupt Practices Act violations. See United States v. Amaro
Goncalves, No. 09-CR-335-RJL, https://tinyurl.com/yabn8anb. On the
Government’s perfunctory Rule 48(a) motion, Judge Leon promptly
dismissed the prosecution of three of the defendants long after their guilty
25
4

 conduct the type of intrusive inquiry—including forcing the Government to
divulge classified information—that Mr. Gleeson and the Watergate Group,
supra n.2—urge the district court to undertake. It would make a collision
between the branches of government inevitable. The district court’s repeated
efforts to hijack the prosecution of General Flynn defy the clear mandates of
Sineneng-Smith and Fokker Servs.
C. This is the Rare Case Where Mandamus is Warranted.
The Government, which has sole authority to dismiss this prosecution,
has presented a well-documented motion explaining its reasons.

The

Government misconduct and Brady violations provide a more-thansufficient basis for dismissal. An innocent man has been the target of a
vendetta by politically motivated officials at the highest level of the FBI. The
egregious Government misconduct, and the three-year abuse of General
Flynn and his family, cry out for ending this ordeal immediately and
permanently.
The district judge’s orders reveal his plan to continue the case
indefinitely, rubbing salt in General Flynn’s open wound from the
Government’s misconduct and threatening him with criminal contempt.
pleas. Similarly, Judge Sullivan granted a short motion to dismiss the
prosecution of Senator Stevens. App. 4: 79-90.
26

 Petitioner has no alternative avenue of relief, his right to relief is “clear and
indisputable” and, in these extraordinary circumstances, issuance of the writ
is not just appropriate, it follows “as a matter of course." In Re Reyes, 814
F.2d at 168.
D. Petitioner’s Right to Relief is “Clear and Indisputable,”
and He Has no Alternative Avenue of Relief.
Petitioner has already suffered an unimaginable ordeal at the hands of
unscrupulous high-ranking Government officials and a three-year
prosecution. He has suffered the opprobrium of much of the country—which
he reveres and for which he has risked his life—financial ruin, and the mental
anguish caused by the prospect of prison and the unscrupulous threat to
prosecute his son. All for no legitimate reason.
To its credit, the Department of Justice has finally produced the
evidence that General Flynn committed no crimes. The wrongful and
wasteful prosecution must end. Since the district judge refuses, Petitioner
must ask this Court to order the district court to comply with the controlling
precedent of the Supreme Court and this Court.
The Government, too, is entitled to have its motion granted.
Continuation

of

these

proceedings

undermines

the

Government’s

prosecutorial authority and subjects the Department of Justice to specious
27

 charges of misconduct such as Mr. Gleeson’s publication in the Washington
Post, among countless others.
As Judge Posner noted in a much less contentious case, “No statute
authorizes the Government to appeal from a denial of the dismissal of a count
or case, but we do not think that there can be much doubt that such relief is
available by way of mandamus.” In re United States, 345 F.3 450, 452 (7th
Cir. 2003).

There is even less doubt here, where continuation of the

proceedings for the indefinite future will subject the Department of Justice
to sustained assaults on its integrity and cast doubt on its authority to
terminate criminal proceedings it has determined do not serve the interests
of the United States.
As Judge Posner wryly noted in the above-cited case, “The judge . . . is
playing U.S. Attorney. It is no doubt a position that he could fill with
distinction, but it is occupied by another person.” Id. at 453. Here, that
person is the signatory of the Government’s Motion to Dismiss, the United
States Attorney for the District of Columbia. Like the district judge in In Re
United States, the district judge below has taken over the role of prosecutor.
“Mandamus serves as a check on that kind of ‘usurpation of judicial power.’”
Fokker Servs., 818 F.3d at 750.

28

 E. Issuance of the Writ is Appropriate.
In granting Mandamus, this Court noted in Fokker Servs., “numerous
decisions of the Supreme Court and this court made clear that courts
generally lack authority to second-guess the prosecution's constitutionally
rooted exercise of charging discretion.” Fokker Servs., 818 F.3d at 750.
Impairment of the Government’s authority to make prosecutorial decisions
suffices to make this an appropriate case for mandamus, but there is much
more.
First, Petitioner, through no fault of his own, has been drawn into a
Kafkaesque nightmare that is a cross between The Trial and In the Penal
Colony. He has been subjected to deception, abuse, penury, obloquy, and
humiliation. Having risked his life in service to his country, he has found
himself the target of a political vendetta designed to strip him of his honor
and savings, and to deprive the President of his advice. He has been dragged
through the mud and forced, through coercion and the artful withholding of
information crucial to his defense, to confess to a crime he did not commit—
indeed, to a crime that could not exist. Having at last, through the relentless
determination of his current counsel, brought the truth to light, he now
learns that the judge who is charged with adjudicating his case impartially
has, in Judge Posner’s words, decided to “play[] ... U.S. Attorney.” The
29

 equities demand an end to this nightmare and restoration of General Flynn’s
freedom and peace of mind.
Second, the reputation of the judiciary is in jeopardy. As the Chief
Justice memorably stated at his confirmation hearings, the function of a
judge in our system of government is to “call balls and strikes, and not to
pitch or bat.” The district judge in this case has abandoned any pretense of
being an objective umpire—going to0 far as to suggest that a criminal
defendant who succumbs to a coerced and unfair plea bargain should be
prosecuted for contempt.
In the midst of a national election season, with unprecedented
acrimony on all sides of the civic debate, the district judge has dragged the
court into the political hurricane—cementing the notion that judges are
politicians in robes who use their authority to thwart what they consider the
“corruption,” “impropriety,” and “improper political influence” of another
one of the political branches.
Confidence in the rule of law, and the willingness of federal judges to
administer it impartially, will continue to erode, if this Court fails to put a
swift end to this spectacle.

30

 IV.

The Court Should Order this Case Re-Assigned to
Another District Judge

The district judge’s manifest confusion about the facts of this case,
accusing General Flynn of treason and having “sold out his country,” and his
punitive intentions are well documented.

Following Petitioner’s first

sentencing hearing on December 18, 2018, headlines such as these appeared:
Stephanie Kirchgaessner, 'I can’t hide my disgust, my disdain’: judge
lambasts Michael Flynn, THE GUARDIAN (Dec. 18, 2018, 5:26 PM)
https://tinyurl.com/ycbt6ayr; Shannon LaFraniere and Adam Goldman,
‘Not Hiding My Disgust’: Judge Rebukes Flynn, Then Delays Sentencing,
N.Y. TIMES (Dec. 28, 2018) https://tinyurl.com/ybh2czv6; Victoria Albert,
Judge asks prosecutors whether Mike Flynn could have been charged with
treason,

THE

DAILY

BEAST

(Dec.

18,

2018,

4:06

PM)

https://tinyurl.com/ycx45gvt; Griffin Connolly, Judge Lights Into Michael
Flynn: ‘You Sold Your Country Out,’ ROLL CALL (Dec. 18, 2018, 1:03 PM)
http://tiny.cc/p1h9oz; Demetri Sevastopulo, ‘You sold your country out,’
judge tells Michael Flynn as sentence delayed, THE IRISH TIMES (Dec. 18,
2018, 6:54 PM) https://tinyurl.com/y7e5lxvz.
These world-wide headlines are only one wave of the tsunami of
invective that crashed into General Flynn as a result of the district judge’s
31

 intemperate comments. A defendant facing sentencing is entitled to a judge
who does not express “disgust” and “disdain” in a courtroom filled with
reporters. Inflaming public passions against a party, particularly a criminal
defendant, and encouraging prosecutors to vastly increase the charges
against him, is the very antithesis of calling balls and strikes.
Nor was this the end of the matter. The district judge’s latest actions—
failing to grant the Government’s Motion to Dismiss, appointing a biased and
highly-political amicus who has expressed hostility and disdain towards the
Justice Department’s decision to dismiss the prosecution, and the promise
to set a briefing schedule for widespread amicus participation in further
proceedings—bespeaks a judge who is not only biased against Petitioner, but
also revels in the notoriety he has created by failing to take the simple step of
granting a motion he has no authority to deny. 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.
This Court in Fokker Servs. declined the petitioners’ request to
reassign the case because “[r]eassignment is warranted only in the
‘exceedingly rare circumstance,’ [In re Kellogg Brown & Root, 756 F.3d 754,
763 (D.C. Cir. 2014)], in which the district judge's conduct is ‘so extreme as
32

 to display clear inability to render fair judgment,’ Liteky v. United States, 510
U.S. 540, 551 (1994).” 818 F.3d at 750-51. The Court concluded that Fokker
“does not approach that high bar. Although the district court volunteered
opinions about Fokker's conduct on the basis of facts presented during the
proceedings, those sorts of ‘candid reflections’ concerning the judge's
assessment of a defendant's conduct ‘simply do not establish bias or
prejudice.’ In re Barry, 946 F.2d 913, 914 (D.C.Cir.1991); see SEC v. First
City Fin. Corp., 890 F.2d 1215, 1222 (D.C.Cir.1989). Nor do the district
court's observations suggest ‘deep-seated ... antagonism that would make
fair judgment impossible.’ Liteky, 510 U.S. at 555.” Id.
Unlike in Fokker, the district judge’s outrage at General Flynn does
reveal a deep-seated antagonism. In open court, knowing full well that his
words would be broadcast all over the world within minutes, the district
judge accused General Flynn of treason—a charge hurtful to any American,
but a stake through the heart of one who has risked his life protecting the
United States from its foreign enemies.

The judge also expressed his

personal “disgust” (pointing out he was not hiding it) and accused him of
arguably having “sold out” his country. App. 1: 34. Even uttered in a private
conversation, such words would be cause for recusal, but to say them to the

33

 world does, indeed, evince “deep-seated ... antagonism that would make fair
judgment impossible.” Liteky, 510 U.S. at 555.
If the Court grants the principal relief Petitioner seeks, there may not
be much by way of further proceedings in the case, but there could be.
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.
CONCLUSION
For these reasons, Petitioner respectfully requests a Writ of Mandamus
ordering the district court to (1) grant the Government’s Motion to Dismiss
with prejudice, (2) vacate its order appointing an amicus curiae, and (3)
assign the case to another judge for any additional proceedings.
Respectfully submitted,
/s/ Jesse R. Binnall

/s/ Sidney Powell

Jesse R. Binnall
Lindsay McKasson
Abigail Frye
HARVEY & BINNALL, PLLC
717 King Street
Suite 200
Alexandria, Virginia 22314

Sidney Powell
Molly McCann
SIDNEY POWELL, P.C.
Counsel of Record
2911 Turtle Creek Blvd.,
Suite 300
Dallas, Texas 75219
Tel: (214) 707-1775

Tel: (703) 888-1943

34

 CERTIFICATE OF SERVICE
I hereby certify that on May 19, 2020, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals
for the D.C. Circuit by using the CM/ECF system. I further certify that I
have served the following by first-class United States Mail for delivery to
each of the following on May 19, 2020.
Timothy Shea, Esquire
United States Attorney for the District of Columbia
555 4th Street, N.W.
Washington, D.C. 20530
The Hon. Emmet G. Sullivan
United States District Court for the District Columbia
333 Constitution Avenue, N.W.
Washington, D.C. 20001
John Gleeson, Esquire
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Tel: 212-909-6000
Fax: 212-909-6836
May 19, 2020

/s/ Sidney Powell
Sidney Powell
SIDNEY POWELL, P.C.
Counsel of Record
2911 Turtle Creek Blvd.,
Suite 300
Dallas, Texas 75219
Tel: (214) 707-1775
35

 CERTIFICATION OF COMPLIANCE
WITH TYPE-VOLUME LIMIT
(1)

This document complies with the word limit of the Federal Rule of
Appellate Procedure 21(d)(1) because, excluding the parts of the
document exempted by Federal Rule of Appellate Procedure 32(f)
and D.C Circuit Rule 32(e)(1) this document contains 7,765 words.

(2)

This document complies with the typeface requirement of Federal
Rule of Appellate Procedure 32(a)(6) because this document has
been prepared in a proportionally spaced typeface using Microsoft
Word in 14-point Georgia.

May 19, 2020

/s/ Sidney Powell
Sidney Powell
SIDNEY POWELL, P.C.
Counsel of Record
2911 Turtle Creek Blvd.,
Suite 300
Dallas, Texas 75219
Tel: (214) 707-1775

36