On Tuesday May 19, 2020, Sidney Powell, the attorney for President Trump’s former National Security Advisor, Michael Flynn, filed a petition for a “writ of mandamus” with the D.C. Circuit of the Court of Appeals. The petition seeks, “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.”
Powell’s petition challenges Judge Emmet G. Sullivan’s recent order appointing a “friend of the court,” or “amicus curiae” to brief the court on whether it should agree to dismiss the Flynn case and whether Flynn should be held in criminal contempt. Powell has argued that the judge exceeded his authority by delaying the prosecution’s bid to dismiss the case on its own motion. She wrote, “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.”
On the previous day, Judge Sullivan admitted retired judge John Gleeson as a “friend of the court” to advocate against the government’s motion to dismiss and explore whether to charge Flynn with contempt. Gleeson penned an op-ed in the Washington Post in which he urged the judge to appoint an attorney for this same purpose. Powell challenged the propriety of the amicus order generally and specifically objected to appointing the author of an opinion piece to a role in the case against her client.
This author and others have raised ethical concerns regarding the conduct of Brandon Van Grack, the attorney who, until recently, managed the prosecution of Flynn. The government’s motion to dismiss relies on evidence of Flynn’s innocence that appears to have been withheld from Flynn until Van Grack’s supervisory chain intervened.
Additionally, there are concerns regarding a judge using contempt powers to punish a defendant for wrongfully entering a plea of guilty. Powell wrote, “The district judge in this case has abandoned any pretense of being an objective umpire—going too far as to suggest that a criminal defendant who succumbs to a coerced and unfair plea bargain should be prosecuted for contempt.”
The docket of the D.C. circuit contains no indication as to the next step in the process.