I’ll start with a “brief” primer on the case so far, and a short introduction into a key issue raised by the Government brief. //

The Department of Justice filed an Appellate Brief in support of the Petition for Writ of Mandamus filed by General Flynn on the same day that Judge Sullivan filed his response to the Circuit Court’s order that he do so. //

moving expeditiously by way of a Writ avoids “an unwarranted impairment” by Judge Sullivan of the Executive Branch’s “performance of its constitutional duties.”

At its core what this argument advances is the idea that when the Executive Branch, while executing its constitutional duties to see that that the laws are faithfully executed and enforced, comes across information establishing that an ongoing enforcement action is mistaken or amounts to an injustice, the Executive must move with all due haste to bring the enforcement action to an end.

The Justice Department has taken a position in a legal filing with the Judicial branch that it is no longer convinced that Gen. Flynn committed a crime, and it is certain that it would not be able to prove any such crime beyond a reasonable doubt if it attempted to do so in a trial.

Yet based on Justice Department conduct up to the date of that determination, Gen. Flynn remains a defendant in a criminal case pending in United States District Court. As such, the Justice Department has an ethical obligation – and an obligation under its own internal policies (explained later) – to move without delay to bring an end to that pending matter.

What Judge Sullivan proposes to do is an “unwarranted impairment” of the Executive Branch’s effort to fulfill its constitutional obligations to Gen. Flynn. //

The course of action proposed by Judge Sullivan is unwarranted in terms of the substance, that the process he proposes to follow is an interference with Executive branch functions in violation of the Separation of Powers doctrine.