https://www.nationalreview.com/2020/09/michael-flynn-case-dc-circuit-rules-against-mandamus-case/
Judge Sullivan should dismiss the Flynn case.
It will come as no surprise to anyone who listened to the oral argument (or, ahem, read the coverage of it here at National Review) that the U.S. Court of Appeals for the D.C. Circuit has denied Michael Flynn’s petition for a writ of mandamus against District Court Judge Emmet Sullivan. General Flynn, President Trump’s original national-security adviser, was seeking to persuade the appellate court to order Judge Sullivan to dismiss the case against him on the Justice Department’s motion.
The ruling by the en banc court (i.e., consideration by all ten active Circuit judges who were not recused from the case) was 8–2. As predicted here, a strong majority of the court — whose Democratic appointees easily outnumber their Republican counterparts — lined up against two dissenting Republican appointees. In May, those dissenters, Judges Neomi Rao and Karen L. Henderson, had formed the majority of a three-judge Circuit panel that initially ruled in Flynn’s favor. The panel ruling was vacated when the full Circuit decided to hear the case.
Flynn pled guilty in 2017 to a false-statements charge brought by the Mueller investigation. He subsequently hired new counsel and moved for dismissal of the case based on alleged misconduct by the FBI in the investigation, and by the prosecutors in the court proceedings. Attorney General Bill Barr appointed a Justice Department prosecutor (St. Louis U.S. Attorney Jeff Jensen) to review the case, and the review turned up several investigative improprieties. The Justice Department determined that there had been no underlying basis to investigate Flynn (i.e., there was insufficient predicate to investigate him as a criminal suspect or as a clandestine agent of Russia). From this premise, DOJ reasoned that none of the allegedly false statements Flynn made to FBI agents were material to a matter under investigation — an essential element of a false-statements offense. Prosecutors thus moved to dismiss the case, under Rule 48(a) of the Federal Rules of Criminal Procedure.