USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 1 of 29 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 jbinnall@harveybinnall.com SIDNEY POWELL, P.C. Sidney Powell Counsel of Record Molly McCann 2911 Turtle Creek Blvd., Suite 300 Dallas, Texas 75219 Telephone: (214) 707-1775 sidney@federalappeals.com ATTORNEYS FOR PETITIONER MICHAEL T. FLYNN USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 2 of 29 TABLE OF CONTENTS I. The Petition for Rehearing (PFR) is Rife with Errors and Misrepresentations. ......................................................................... 3 A. The PFR Elides The Government’s Massive Motion to Dismiss That Alone Mandates Dismissal. ..................................................... 3 B. The PFR’s Assertion General Flynn Did Not Challenge These Actions is False (PFR 3). ....................................................... 4 C. Judge Sullivan Denied Flynn’s Motions Twice. .............................. 5 D. Judge Sullivan’s Petition Misstates The Date Flynn Petitioned for Mandamus (PFR 3). .................................................. 6 E. Judge Sullivan Set the Extended Briefing Schedule and Oral Argument After General Flynn Filed for Mandamus. .................... 6 F. No Judgment of Conviction Was Ever Entered Against General Flynn (PFR 14-15). ............................................... 6 II. Judge Sullivan Has No Standing to Litigate................................... 8 III. Dismissal is Required by All Precedent in Rule 48(a) Cases. ....................................................................... 11 IV. The Panel Properly Issued the Writ to Confine the District Court Within its Authority and to Order Dismissal. ............................... 14 V. Rehearing En Banc Must Be Denied for Lack of Case or Controversy. ............................................................................... 17 VI. Conclusion ...................................................................................... 19 Addendum Time Stamped Docket Entries i USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 3 of 29 TABLE OF AUTHORITIES Cases Am. Civil Liberties Union of Kentucky v. McCreary Cty., 354 F.3d 438 (6th Cir. 2003) ................................................................ 15 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ................................................................................ 18 Bankers Life & Cas. Co. v. Holland, 346 U.S. 379 (1953) ...................... 17 Brown v. Baden, 815 F.2d 575 (9th Cir. 1987) ....................................... 10 Elrod v. Burns, 427 U.S. 347 (1976) ....................................................... 15 Ex parte Peru, 318 U.S. 578 (1943). .......................................................... 2 Greenlaw v. United States, 554 U.S. 237 (2008) ..................................... 15 In re al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019) ........................................ 7 In re Cheney, 406 F.3d 723 (D.C. Cir. 2005) ........................................... 15 In re Richards, 213 F.3d 773 (3d Cir. 2000) ........................................... 12 In re Sealed Case No. 98-3077 151 F.3d 1059 (D.C. Cir. 1998)............................................................... 2 *In re United States, 345 F.3d 450 (7th Cir. 2003) ............................. 8, 14 *Ligon v. City of New York, 736 F.3d 166 (2d Cir. 2013) .......................................................... 8, 9, 10 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ......................................... 8 Moore v. Charlotte-Mecklenburg Bd. Of Educ., 402 U.S. 47 (1971) ................................................................................ 17 __________________________________________________________________ * Authorities upon which we chiefly rely are marked with asterisks. ii USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 4 of 29 Raines v. Byrd, 521 U.S. 811 (1997) ....................................................... 11 *Rinaldi v. United States, 434 U.S. 22 (1977) .............................. 7, 13, 14 Roche v. Evaporated Milk Ass'n, 319 U.S. 21 (1943) .......................... 1, 16 Schlagenhauf v. Holder, 379 U.S. 104 (1964) ........................................... 2 Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, 2020 WL 3492641 (U.S. June 29, 2020) (revised July 8, 2020) .................... 15, 16 Thompson v. United States, 444 U.S. 248 (1980) ..................................... 7 *United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) .. 1, 3, 13, 17 *United States v. Fokker Servs. B.V., 818 F.3d 733 (D.C. Cir. 2016)............................... 1, 3, 11, 12, 14, 15, 16 United States v. HSBC Bank USA, N.A., 863 F.3d 125 (2d Cir. 2017). ................................................................... 2 United States v. Juvenile Male, 564 U.S. 932 (2011) .............................................................................. 18 United States v. Nixon, 418 U.S. 683 (1974)..................................... 11, 15 United States v. Pitts, 331 F.R.D. 199 (D.D.C. 2019) ............................. 13 *United States v. Sineneng- Smith, 140 S. Ct. 1575 (2020) ................... 17 United States v. Smith, 55 F.3d 157 (4th Cir. 1995) .............................. 17 Statutes 28 U.S.C. § 455 .......................................................................................... 9 Rules Fed. R. App. P. 21(b)................................................................................ 10 Fed. R. App. P. 35(a)(1) ............................................................................. 1 iii USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 5 of 29 No federal circuit has countenanced rehearing of a mandamus on petition by a district judge. Judge Sullivan has no cognizable interest in the case. Rehearing should be denied because the panel properly applied the longstanding use of mandamus to which General Flynn is clearly entitled “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). Here, it is both. Rehearing is not warranted under Fed. R. App. P. 35(a)(1) because there is no conflict with any decision. The opinion is not only consistent with—but required by—United States v. Fokker Servs. B.V., 818 F.3d 733 (D.C. Cir. 2016), and United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973). Ammidown recognizes the responsibility of the Executive Branch to determine “the public interest” to justify dismissal. Id. at 620. Only the prosecutor is “in a position to evaluate the government’s prosecution resources and the number of cases it is able to prosecute.” Id. at 621. Dismissal is required upon the Government’s statement of reasons. As the Second Circuit wrote when reversing then Judge Gleeson for selfaggrandizing his role in reviewing a deferred prosecution agreement, to 1 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 6 of 29 do otherwise would turn “the presumption [of regularity] on its head.” United States v. HSBC Bank USA, N.A., 863 F.3d 125, 136 (2d Cir. 2017). The district court exceeded its constitutional authority by appointing amicus to work against General Flynn after the parties agreed to dismissal. The Constitution and all precedent applying or analyzing Fed. R. Crim. P. 48(a) mandate dismissal on the robust substantive motion of the government—every case. Even if this were an issue of first impression, this Court has held that “mandamus is appropriate” where there is “a substantial allegation of usurpation of power.” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1067 (D.C. Cir. 1998) (citing Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964)); see Ex parte Peru, 318 U.S. 578, 587 (1943) (“delay and inconvenience of a prolonged litigation [must] be avoided by prompt termination of the proceedings in the district court”). The district court’s delay here has extended this litigation and impaired General Flynn’s freedom for an additional ten weeks so far. 2 USCA Case #20-5143 I. Document #1852378 Filed: 07/20/2020 Page 7 of 29 The Petition for Rehearing (PFR) is Rife with Errors and Misrepresentations. A. The PFR Elides the Government’s Massive Motion to Dismiss That Alone Mandates Dismissal. On May 7, 2020, the Government moved to dismiss the Information against General Flynn in a significant filing—twenty pages of briefing and eighty pages of new exculpatory documents. ECF No. 198. These documents and more provide substantial support for the Government’s determination that there was no crime. General Flynn was “forthcoming with the agents,” and the FBI had ordered the investigation of him closed because even surveillance over multiple months produced no derogatory information. Id. More stunning text messages from Agent Peter Strzok and agents’ notes demonstrated the directors of the FBI and others sought to set Flynn up, “prosecute” him, or “get him fired.” Id. at Ex. 7, Ex. 9. The motion recited General Flynn’s agreement, and he separately filed notice of consent. ECF Nos. 198, 199, 202. Dismissal was required then under this Court’s rulings in Ammidown and Fokker Servs. 3 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 8 of 29 B. The PFR’s Assertion General Flynn Did Not Challenge These Actions is False (PFR 3). Both the dissent and the PFR rely on the misconception that the district judge had no opportunity to consider these issues below. That is wrong. On May 11, 2020, at 4:58 p.m., the Robbins Russell firm emailed Judge Sullivan directly, the clerk of the district court, and lead counsel for General Flynn—attaching documents noticing intent to oppose dismissal on behalf of amici “former Watergate Prosecutors.” Pet. App. 64-73. General Flynn promptly opposed any amicus, urged granting the Government’s motion, and served the government at 2:58 p.m. on May 12, 2020. ECF No. 201 (sealed). The district judge entered a minute order a few hours later at 5:57 p.m., stating: because of “the current posture of this case, the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs.” Pet. App. 74-75. The court’s order recognized no rule allowed it, recited the standard (which would foreclose amicus here), and said it would enter a scheduling order “at the appropriate time.” Id. 4 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 9 of 29 General Flynn revised his opposition and filed it publicly two hours later: 7:59 p.m., May 12, 2020. ECF No. 204. The defense wrote: “A criminal case is a dispute between the United States and a criminal defendant. There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel. For the Court to allow another to stand in the place of the government would be a violation of the separation of powers.” Id. at 2. The defense again urged the court to grant the Government’s Motion to Dismiss. ECF No. 204. C. Judge Sullivan Denied Flynn’s Motions Twice. The next morning, May 13 at 9:42 a.m., Judge Sullivan denied General Flynn’s two oppositions to amicus and requests to grant dismissal as “moot.” Addendum at 2a. At 6:36 p.m., the district court appointed Mr. Gleeson to “present arguments in opposition to the government’s Motion to Dismiss” and advise “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.” ECF No. 205; Pet. App. 76-78. 5 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 10 of 29 D. Judge Sullivan’s Petition Misstates The Date Flynn Petitioned for Mandamus (PFR 3). Six days later, on May 19—after Judge Sullivan denied both defense motions and appointed an adversarial amicus to usurp the core role of the Executive and increase Flynn’s exposure, General Flynn filed for mandamus. Brief for Petitioner, In re Michael T. Flynn, No. 20-5143 (D.C. Cir. May 19, 2020). It was not May 21. Addendum at 3a. E. Judge Sullivan Set the Extended Briefing Schedule and Oral Argument After General Flynn Filed for Mandamus. May 19, at 4:36 p.m.—after the Clerk of this Court docketed the petition for mandamus—Judge Sullivan set an extended briefing schedule and hearing date. Addendum at 3a. F. No Judgment of Conviction Was Ever Entered Against General Flynn (PFR 14-15). The PFR relies heavily on the novel notion that Judge Sullivan has more authority to scrutinize the decision of the Executive Branch to dismiss this case because General Flynn had “two separate ‘judgment[s] of conviction.’” PFR 14. This is wrong on every level. 1. A guilty plea is not a conviction. There is no “conviction” until a defendant is sentenced, and an appealable judgment is entered. See Brief of Amicus Curiae Fed. Practitioners in Support of Petitioner Michael T. 6 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 11 of 29 Flynn and Respondent the United States at 12-15, In re Michael T. Flynn, No. 20-5143 (D.C. Cir. 2020). 2. The “plea proceeding” conducted by Judge Contreras is void. Judge Contreras was recused almost immediately for reasons long known to the Government but not to Flynn. “If a judge ‘should have been recused from the . . . proceedings, then any work produced’ by that judge ‘must also be ‘recused’—that is, suppressed.’” In re al-Nashiri, 921 F.3d 224, 238 (D.C. Cir. 2019). 3. Nor was Judge Contreras’s invalid Rule 11 colloquy cured by Judge Sullivan’s “extended” colloquy. Not only did Judge Sullivan fail to ask core questions, he ended his proceeding stating he had “many, many, many questions” about the factual basis for the plea. Pet. App. 51. General Flynn’s guilty plea is thus invalid, and he moved to withdraw it for that and many additional reasons—which Judge Sullivan also ignores. ECF Nos. 151, 154, 160. 4. The Government has the right to dismiss at any time—even after sentencing (Rinaldi v. United States, 434 U.S. 22 (1977))—or after certiorari is granted. Thompson v. United States, 444 U.S. 248 (1980); ECF No. 228 at 12-15. Dismissal is mandated at any stage the 7 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 12 of 29 Government files it. In re United States, 345 F.3d 450 (7th Cir. 2003); ECF No. 228 at 12-15. This Court should deny rehearing en banc for multiple reasons: (i) Judge Sullivan has no standing to litigate; (ii) the panel decision is correct and consistent with all precedent; and, (iii) there is no case and controversy. II. Judge Sullivan Has No Standing to Litigate. No rule or precedent authorizes a district judge to seek rehearing of a mandamus order. A district court ordered to respond to a petition for a writ of mandamus is not thereby endowed with the rights of a party. The resulting mandamus from this Court to Judge Sullivan—just like any appellate order to a district court—does not give the judge standing to litigate issues “as a party, intervenor, or amicus.” Ligon v. City of New York, 736 F.3d 166, 170 (2d Cir. 2013). The “irreducible constitutional minimum of standing contains three elements,” the first of which is an “injury in fact” that is “concrete and particularized” and “actual [and] imminent.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Judge Sullivan, the supposed umpire, does not make it to first base. He has no injury. 8 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 13 of 29 The Second Circuit’s rejection of Judge Scheindlin’s novel effort to get into the game by seeking reconsideration of its order reassigning one of her cases applies with equal force here: We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case. . . . [R]eassignment is not a legal injury to the district judge. Rather, reassignment allows the courts to ensure that cases are decided by judges without even an appearance of partiality. A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment. Ligon, 736 F.3d at 170-171. Or, in lay terms, umpires don’t get to swing bats or run bases; they suffer no harm when one team wins and the other loses. Likewise, this Court’s order to grant dismissal was not an injury to Judge Sullivan who—if he does have a personal stake in the outcome of the case—would be disqualified and required to remove himself immediately. 28 U.S.C. § 455. Ligon recognized an appellate court may allow a lower court to appear through counsel and respond to a petition for mandamus but held that this did not give Judge Scheindlin the status of a litigant. This Court already afforded Judge Sullivan that opportunity, and it is only because 9 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 14 of 29 of this Court’s order that he could respond.1 The order conferred no additional rights or interests upon Judge Sullivan. The umpire is not an active litigant. It is Judge Sullivan who is disrupting the “orderly administration of justice.” PFR 1. Not only does the law require him to have granted the Government’s substantial motion with no fuss, but he should have also granted General Flynn’s two motions opposing amicus. ECF. No. 201, 204. He had six more days to reconsider before General Flynn petitioned for mandamus. Judge Sullivan also should have ordered dismissal promptly upon receipt of this Court’s opinion. Instead, he waited another fifteen days to file an improper petition for rehearing. As Ligon quoted from the Ninth Circuit: “In the scheme of the federal judicial system, the district court is required to follow and implement our decisions just as we are oath- and duty-bound to follow the decisions and mandates of the United States Supreme Court.” Ligon, 736 F.3d at 171 n.12 (quoting Brown v. Baden, 815 F.2d 575, 576 (9th Cir. 1987)). The D.C. Circuit Rules of Appellate Procedure bar any suggestion that a judge in a mandamus proceeding becomes a party. Fed. R. App. P. 21(b). 1 10 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 15 of 29 To allow Judge Sullivan to delay and generate litigation against a criminal defendant is unconstitutional.2 This action itself diminishes the status of the federal judiciary as an independent bulwark for the rule of law. Because the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case,” this Court’s mandamus must issue instanter. United States v. Nixon, 418 U.S. 683, 693 (1974); Fokker Servs., 818 F.3d at 741. III. Dismissal is Required by All Precedent in Rule 48(a) Cases. The panel opinion did not make new law. Every reported decision applying Rule 48(a) requires the court to grant the Government’s substantial motion to dismiss. ECF No. 198. A “hearing” is warranted only in the rare case where the Government provided nothing more than a bald allegation of “public interest.” No “development of the record” of any kind is necessary or proper when the Government’s Motion to Dismiss is not only fully briefed but is also heavily documented with To the extent the district court is trying to expand the power of the Article III judiciary to probe the prosecutorial decision-making of the Executive Branch through a Rule 48(a) motion, the Supreme Court’s standing doctrine squarely forecloses it. Raines v. Byrd, 521 U.S. 811, 819-21 (1997) (denying standing to Congressmen even as parties to assert the diminution of legislative power and imposing an “especially rigorous” standing inquiry in assessing a constitutional power challenge between two branches). 2 11 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 16 of 29 eighty pages of exculpatory evidence—all of which the district court ignores—along with all Flynn’s motions. ECF Nos. 198, 151, 153, 106-2. Judge Sullivan’s stubborn disagreement with the Government’s decision to dismiss the case does not confer the right to contest it himself or through his amicus. His actions smack of vindictive animus against General Flynn and judicial overreach that have no place in America’s justice system. No precedent even suggests a “hearing” on a substantial government motion to dismiss.3 Not one. In Fokker Servs., 818 F.3d at 749-50, this Court soundly rejected Judge Sullivan’s assertion that mandamus cannot issue—even if it were a case of first impression: [W]e have never required the existence of a prior opinion addressing the precise factual circumstances or statutory provision at issue in order to find clear error justifying mandamus relief. Indeed, the reason there is no appellate opinion interpreting a district court's authority under § 3161(h)(2) is that, before the decision under review, no district court had denied a motion to exclude time based on a mere disagreement with the prosecution's charging decisions. In fact, as far as we can tell, no district court had denied a motion to exclude time under § 3161(h)(2) for any reason. The dissent’s only Rule 48(a) case “requiring a hearing” arose from a prosecutor’s attempt to dismiss a sexual misconduct charge in a territorial court of the Virgin Islands twenty years ago. In re Richards, 213 F.3d 773 (3d Cir. 2000). Even there, a hearing was warranted only because the prosecutor made a mere allegation that dismissal was in the “public interest.” Id. at 789. 3 12 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 17 of 29 Conversely, 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. The PFR misrepresents Rinaldi in arguing that this Court’s mandamus “created a conflict with a decision of the United States Supreme Court.” PFR at 6. Rinaldi stands for the principle that the “leave of court” provision in Rule 48(a) is to protect the defendant from harassment by the Government—to ensure dismissal was with prejudice.4 Id. at 29 n.15; 31. Rinaldi does not hold that a hearing is required; indeed, Rinaldi does not discuss the issue. Even if one could argue that, by its silence, the Supreme Court approved of a hearing in Rinaldi,5 the type of inquiry that the panel curtailed here was far more searching and intrusive than a “review of the Judge Sullivan himself has held that dismissal must be with prejudice to protect the defendant, and he added with prejudice to the government’s dismissal order. United States v. Pitts, 331 F.R.D. 199, 206 (D.D.C. 2019) (citing Ammidown, 497 F.2d at 620). 4 The Court often refuses to address any issue but the one squarely before it, as the Rinaldi Court pointed out itself : “[I]t is unnecessary to decide whether the court has discretion under these circumstances, since, even assuming it does, the result in this case remains the same.” Rinaldi, 434 U.S. at n. 15; accord In re Michael T. Flynn, Petitioner, No. 20-5143, 2020 WL 3895735 at *6 (D.C. Cir. July 10, 2020) (“Whatever the precise scope of Rule 48’s ‘leave of court’ requirement, this is plainly not the rare case where further judicial inquiry is warranted.”). 5 13 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 18 of 29 record”—which Judge Sullivan had ample opportunity to perform. Instead, he exceeded his constitutional authority and appointed a hostile amicus to litigate and create a record of his choosing adversarial to the Government and General Flynn—in the absence of a case and controversy. Thus, even if Rinaldi could be read to approve or require a hearing, Rinaldi would not conflict with the panel’s reasoned decision on this substantial record that requires dismissal. IV. The Panel Properly Issued the Writ to Confine the District Court Within its Authority and to Order Dismissal. General Flynn’s right to the writ is clear and indisputable. Rinaldi, 434 U.S. at 31-32; Fokker Servs., 818 F.3d at 749. The district court had no authority to appoint amicus, consider additional perjury charges, conduct a hearing to inquire behind a substantial motion to dismiss, or to deny the motion on this record. He has no discretion to deny the Government’s motion to dismiss on this record; it must be granted as a matter of law. Fokker Servs., 818 F.3d at 749; In re United States, 345 F.3d at 452-54. The government does not have a monopoly on irreparable harm from a district court’s infringement of Executive authority. An Article III judge acting outside his constitutional bounds violates a defendant’s 14 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 19 of 29 right to Due Process. Id. (deciding the right to writ first). When a constitutional right is “threatened or impaired, a finding of irreparable injury is mandated.” Am. Civil Liberties Union of Kentucky v. McCreary Cty., 354 F.3d 438, 445 (6th Cir. 2003) (interpreting Elrod v. Burns, 427 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 15 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 20 of 29 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 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). 6 16 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 21 of 29 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 17 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 22 of 29 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. 18 USCA Case #20-5143 VI. Document #1852378 Filed: 07/20/2020 Page 23 of 29 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 /s/ Sidney Powell Jesse R. Binnall Lindsay McKasson Abigail Frye HARVEY & BINNALL, PLLC 717 King Street Suite 200 Alexandria, Virginia 22314 Telephone: (703) 888-1943 Sidney Powell Counsel of Record Molly McCann SIDNEY POWELL, P.C. 2911 Turtle Creek Blvd., Suite 300 Dallas, Texas 75219 Telephone: (214) 707-1775 19 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 24 of 29 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 20 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 25 of 29 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 21 USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 26 of 29 ADDENDUM Time Stamped Docket Entries……………………………………………………………1a USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 27 of 29 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 1a USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 28 of 29 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 2a USCA Case #20-5143 Document #1852378 Filed: 07/20/2020 Page 29 of 29 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 3a