United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued August 11, 2020 Decided August 31, 2020 No. 20-5143 I
N RE
:
M
ICHAEL
T.
F
LYNN
, P
ETITIONER
On Emergency Petition for Writ of Mandamus
Sidney Powell
argued the cause for petitioner Michael T. Flynn. With her on the opposition to the petition for rehearing en banc were
Molly McCann
and
Jesse R. Binnall. Jeffrey B. Wall
, Acting Solicitor General, U.S. Department of Justice, argued the cause for United States of America. With him on the response to the petition for rehearing en banc were
Brian C. Rabbitt
, Acting Assistant Attorney General,
Hashim M. Mooppan
, Counselor to the Solicitor General,
Eric J. Feigin
, Deputy Solicitor General,
Frederick Liu,
Assistant to the Solicitor General,
Kenneth C. Kohl
, Acting Principal Assistant U.S. Attorney, and
Jocelyn Ballantine
, Assistant U.S. Attorney.
Beth A. Wilkinson
argued the cause for Judge Emmet G. Sullivan. With her on the petition for rehearing en banc were
Kosta S. Stojilkovic
and
Rakesh N. Kilaru
.
USCA Case #20-5143 Document #1859018 Filed: 08/31/2020 Page 1 of 61
2 Before: S
RINIVASAN
,
Chief Judge
, and H
ENDERSON
, R
OGERS
, T
ATEL
, G
ARLAND
, G
RIFFITH
, M
ILLETT
, P
ILLARD
, W
ILKINS
, K
ATSAS
* and R
AO
,
Circuit Judges
. * Circuit Judge Katsas did not participate in this matter. Opinion for the Court filed P
ER
C
URIAM
. Concurring opinion filed by
Circuit Judge
G
RIFFITH
. Dissenting opinion filed by
Circuit Judge
H
ENDERSON
, with whom
Circuit Judge
R
AO
joins. Dissenting opinion filed by
Circuit Judge
R
AO
, with whom
Circuit Judge
H
ENDERSON
joins.
I.
P
ER
C
URIAM
: In December 2017, Michael T. Flynn
(“Petitioner”) pleaded guilty to making false statements to FBI
agents in violation of 18 U.S.C. § 1001.
See
Transcript of Proceedings at 7:22
–
13:15,
United States v. Flynn
, No. 1:17-cr-232, ECF No. 103 (D.D.C. Dec. 18, 2018); Transcript of Proceedings at 16:1
–
15,
Flynn
, No 1:17-cr-232, ECF No. 16 (D.D.C. Jan. 16, 2018); Plea Agreement,
Flynn
, No. 1:17-cr-232, ECF No. 3 (D.D.C. Dec. 1, 2017). In May 2020, before sentencing, the Government moved to dismiss all charges with prejudice, under Federal Rule of Criminal Procedure 48(a).
Gov’t Mot. Dismiss Crim. Info.,
Flynn
, No. 1:17-cr-232, ECF No. 198 (D.D.C. May 7, 2020). Petitioner moved to withdraw his pending motions, including a motion to withdraw his guilty
plea, Flynn’s Mot. Withdraw Pending Mots.,
Flynn
, No. 1:17-cr-232, ECF No. 199 (D.D.C. May 7, 2020),
and he consented
USCA Case #20-5143 Document #1859018 Filed: 08/31/2020 Page 2 of 61
3
to the Government’s motion to dismiss, Notice of Consent Gov’t Mot. Dismiss,
Flynn
, No. 1:17-cr-232, ECF No. 202 (D.D.C. May 12, 2020).
On May 13, the District Court appointed an
amicus curiae
“to present arguments in opposition to the government’s Motion to Dismiss,” and to “address whether the Court should
issue an Order to Show Cause why [Petitioner] should not be
held in criminal contempt for perjury.” Order Appointing
Amicus Curiae
at 1,
Flynn
, No. 1:17-cr-232, ECF No. 205 (D.D.C. May 13, 2020). On May 19, the District Court set a briefing schedule and scheduled argument on the
Government’s motion to dismiss
, adding that the order was
“subject to a motion for reconsideration, for good cause
shown.
”
Minute Order,
Flynn
, No. 1:17-cr-232 (D.D.C. May 19, 2020).
On the same day, Petitioner filed an Emergency Petition for a Writ of Mandamus in this Court, seeking expedited review. The Government did not file a petition for mandamus, but it has ge
nerally supported Petitioner’s separation
-of- powers arguments for mandamus relief. Petitioner sought to
compel 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.” Pet. 2. A three
- judge panel of this Court ordered the District Judge to submit a brief in response to the Petition. Order,
In re: Michael T. Flynn
, No. 20-5143 (D.C. Cir. May 21, 2020) (per curiam). The panel heard oral argument and granted the Petition in part, issuing the writ to compel the District Court to immediately
grant the Government’s motion. Panel Maj. Op. 19;
Per Curiam
Order. The panel majority declined to mandate that the case be reassigned to a different district judge, Panel Maj. Op. 11
–
12, and, in light of its grant of the writ to compel immediate
USCA Case #20-5143 Document #1859018 Filed: 08/31/2020 Page 3 of 61