Flynn en banc Mandamus hearing denial Judge Rao dissent exposes Judge Sullivan’s partiality, “whether his conduct gives the appearance of partiality, that doubt is gone.”
“Instead of doing so, the government has continued to defy its
constitutional, ethical and legal obligations to this Court and to the defense, and to hide evidence that it knows exonerates Mr. Flynn. As is the essence of the problem here, instead of protecting its citizens, the “government” is protecting its own criminal conduct and operatives.”…Attorney Sidney Powell October
“her client was “totally set up” because he threatened to expose wrongdoing by top intelligence officials in the Obama administration.
“He was going to audit the intel agencies because he knew about the billions Brennan and company were running off the books,” Powell said, referring to former CIA Director John Brennan.”…Sidney Powell, Vickie McKenna Show
On Judge Sullivan: “if there was any doubt up to this point whether his conduct gives the appearance of partiality, that doubt is gone.”...Judge Rao dissenting opinion
From the Dissenting Opinion of Judge Rao in the General Michael Flynn hearing for Writ of Mandamus before the US Court of Appeals for the District of Columbia August 31, 2020.
“The trial judge’s attempted use of Rule 35 is not the first
time he has acted as if he were a party. At his option and with
the appellate court’s approval, Rule 21, as noted earlier, allows
the subject judge to participate in a mandamus proceeding
either directly or by amicus.
5 But Rule 21 leaves no room for
the judge to retain private counsel as was done here. See FED.
R. APP. P. 21(b)(4). A party, not a judge whose action is under
mandamus review, retains private counsel. As the Advisory
Committee Notes on Rule 21(b) make clear, “[b]ecause it is
ordinarily undesirable to place the trial court judge, even
temporarily, in an adversarial posture with a litigant, the rule
permits a court of appeals to invite an amicus curiae to provide
a response to the petition.” FED. R. APP. P. 21(b) advisory
committee’s note to 1996 amendment (first emphasis added).
And his earlier sua sponte appointment of amicus to
oppose the government’s motion to dismiss, although
apparently allowed, is further indication that he has from the
outset appeared to view his role in adjudicating the
government’s motion to dismiss as one that requires outside
support—as if he were a priori antagonistic to the relief both bona fide parties seek.6 Even more telling of apparent
partiality, the trial judge ordered amicus to opine on whether
Flynn had committed perjury and should be held in criminal
contempt. Order Appointing Amicus Curiae at 1, United States
v. Flynn, No. 17-cr-00232 (D.D.C. May 13, 2020), ECF No.
205. That direction indicates that, even if compelled to grant
the motion to dismiss, the trial judge intends to pursue Flynn
on his own.
But it is the trial judge’s conduct since the government’s
May 2020 motion to dismiss, weighed in light of his earlier
conduct, that delivers the coup de grâce to the last shred of the
trial judge’s appearance of impartiality. In other words, if there
was any doubt up to this point whether his conduct gives the
appearance of partiality, that doubt is gone. Granted, the panel
majority opinion resisted Flynn’s request that a different judge
be assigned to this case. See In re Flynn, 961 F.3d at 1223.
That decision rested primarily on the fact that Flynn’s request
centered on the trial judge’s in-court statements, which are
almost always insufficient on their own to warrant
reassignment, and the fact that the trial judge was simply
directed to grant the government’s motion to dismiss. See id.
But the trial judge’s “extreme” conduct throughout this case,
culminating in his decision to ignore the writ and instead seek
en banc review, demonstrates a “clear inability to render fair
““Unbiased, impartial adjudicators are the cornerstone of
any system of justice worthy of the label.” In re Al-Nashiri,
921 F.3d at 233–34. If the trial judge continues to preside over
this case, I submit our system is not so worthy because his
conduct has undermined the appearance of impartiality. My
colleagues in the majority disagree and I am frankly dismayed
by their endorsement of the trial judge’s conduct, especially
after the government’s motion to dismiss. Granted, all
members of the en banc court weigh that conduct in light of
their own experience and notions of impartiality, while, at the
same time, applying § 455(a)’s “objective” standard of “a
reasonable and informed observer.” Microsoft Corp., 253 F.3d
at 114. Although, for them, the exact tipping point at which
the appearance of impartiality is lost is unknown, I am certain
that such a point exists and that the trial judge has passed it. To
protect Flynn’s rights as a criminal defendant, the
government’s interest in controlling its prosecution and the
integrity of the United States District Court for the District of Columbia,9 I believe the trial judge, by his conduct manifesting
the appearance of glaring partiality, has disqualified himself. I
would order the reassignment of this case to a different trial
judge for dismissal.”