Sidney Powell is hardly alone in being “mystified” by Judge Emmet Sullivan’s latest moves in the trial of Michael Flynn, but she may be the most disillusioned. Powell told Sean Hannity last night that Sullivan’s attempts to punish her client are inexplicable, especially considering the heroic way she portrayed Sullivan in her book Licensed to Lie, which exposed corruption and abuse of power in the Ted Stevens case. History has repeated itself in the attempt to railroad Flynn, Powell argues, only this time Sullivan’s greasing the rails rather than reaching the obvious conclusion that investigatory and prosecutorial misconduct has created a vast injustice — again.
But what does Powell plan to do about it? For some odd reason, Hannity never gets around to asking that question:
“I am personally extremely disappointed and saddened by his reaction,” Sidney Powell told Sean Hannity.
“I don’t know, I am mystified by the entire thing,” she later added. “It’s not like the Judge Sullivan I knew … at all. I can’t explain it.” …
“We have been the victims of astonishing Brady violations for three years now,” said Powell, using a common term to describe breaches of the prosecutorial obligation to disclose exculpatory evidence to a defendant. “Some of the information we’ve just been given was in the possession of [the] special counsel [Robert Mueller], and of course was in the possession of the FBI before that.
“The FBI knows that its agents made up of the purported false statements and then that special counsel statements made up the purported filing,” she went on. “The government was the only institution that lied in this case. General Flynn was honest with the agents and they reported that back.”
One has to wonder why Powell has yet to appeal these decisions, especially since they clearly violate clear Supreme Court and DC Circuit appellate precedent. It would have seemed like a natural question to ask Powell about her next steps in preventing Sullivan from dragging Flynn any further in this vortex of abuse. Instead, Hannity asked Mark Levin to comment, and Levin offered his own prescription — a writ of prohibition:
My appearance on Hannity pic.twitter.com/rsvL7ZXLfj
— Mark R. Levin (@marklevinshow) May 15, 2020
“So, this judge is a rogue judge. He’s out of control; he should recuse himself – but, he’s too damn arrogant and he won’t.
“So, let me make a suggestion to the folks over there at the Department of Justice. They’ve got a lot of smart attorneys in the office of legal counsel and elsewhere. I used to work at that grand Department of justice before the Left destroyed.
“It’s called a Writ of Prohibition. It’s almost never used, because we almost never have situations like this, and you file it with the appellate court, the D.C. Circuit court: an appellate court’s order to a lower court prohibiting it from acting, because it lacks jurisdiction.
“This judge lacks jurisdiction to do what he is doing – according to the United States Supreme Court last week, according to the United States Constitution.
“And, if he wants to be an Obama flunky and a Never Trumper, then take your black robe off, judge, leave the courtroom and join the rest of us.
“But, if you are not going to conduct yourself like a serious judge, you either recuse yourself, resign, or the Department has to go over his head to the D.C. Circuit and get him the hell off this case. That’s it.”
The other option is a writ of mandamus, which differs from a writ of prohibition in an important manner. The latter stops a judge from taking a specific action; the former mandates that a judge take a specific action. In this case, a writ of mandamus might work better by asking the appellate court to order Sullivan to dismiss the case with prejudice and end the circus in his court. Either or both would work, but so might a regular appeal that asks the higher court to simply dismiss the case themselves and cut Sullivan out entirely. Their own precedent gives room for that kind of outcome.
So when will Powell file an appeal? One might have expected that move already, but perhaps she’s waiting to see whether public opinion might push Sullivan into reversing himself and finally dispensing with this case. That might take a long wait, if Powell expects media scrutiny to move Sullivan. For instance, this Slate analysis that purports to rebut conservative criticism of Sullivan’s moves and explore his legitimate options never once mentions US v Sineneng-Smith nor US v Fokker Servs BV, the two precedents that speak directly to whether a federal judge has the authority to do what Sullivan is attempting here. Ditto this fawning look at Sullivan’s actions from the Washington Post out this morning.
So much for stare decisis, as I wrote yesterday. Powell had better appeal to a venue that actually respects stare decisis rather than exploits it for political advantage, and fast.