WASHINGTON - Aug. 31, 2020 - The entire U.S.Court of Appeals has ruled overwhelmingly [8-2] that U.S. District Court Judge Emmet G. Sullivan is not a "potted plant," and can consider - and apparently even consider arguments - before deciding whether the Justice Department's request to drop the criminal case against Michael Flynn should be granted.

This exactly what I predicted when Sullivan first made his ruling, and even when a Court of Appeals panel ruled against him, says public interest law professor John Banzhaf, who explained why such consideration is logical and in accord with precedent. Here's what he pointed out at the time to provide context in support of the trial judged decision.

Although Sullivan's decision to permit outsiders to comment on and possibly influence his ruling regarding former national security adviser Michael T. Flynn might be unusual, it is certainly not unprecedented, nor is is it illegal or even illogical, says Banzhaf, who has been involved in several similar situations himself.

Everyone seems to agree that the judge has some discretion regarding the motion - he's not just a rubber stamp or a potted plant - since the government, under Federal Rule of Criminal Procedure 48(a), may dismiss an indictment, information, or complaint only "with leave of the court."

Or, as those seeking to be heard have argued: "So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing."

So the only question is whether or not the judge is legally precluded from obtaining a range of legal opinions to help him decide.

To say that he is supposed to exercise his legal discretion and judgment as an impartial judge, but must be shielded from any opinions other than from the two parties before him, makes no sense, especially on a case of national importance and impact, and as to which many impartial experts - not simply mouthpieces for special interests - have differing opinions.

http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf

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