On Friday June 12, 2020, the Court of Appeals for the D.C. Circuit held a telephonic hearing on a petition for a writ of mandamus filed by Michael Flynn to seek an order forcing District Judge Emmet Sulivan to accept the government’s motion to dismiss. During the hearing, Judge Robert Wilkins revealed his impression of Judge Sullivan’s strategy to keep the Flynn case open when both the prosecution and defense agreed the case should be over.
Judge Wilkins argued, “If the government can’t make the case go away and the case is in limbo, then while it is in limbo, pressure could be brought to bear on the government to reconsider the decision (to dismiss)” To understand how shocking and unfair is this approach to a criminal case, we need to place it in context.
As I’ve written before, the government filed this motion because the case fell apart after the discovery of new evidence uncovered by U.S. Attorney Jeff Jenson. Attorney General Barr assigned Jenson to review the Flynn prosecution when prosecutorial misconduct allegations against Mueller alumnus Brandon Van Grack became too credible to ignore.
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