In re Michael Flynn as Bush v. Gore

A thought on today's D.C. Circuit ruling.

|The Volokh Conspiracy |

Today a divided panel of the D.C. Circuit's handed down its decision in In re Michael Flynn. The appellate court ordered the district court to grant the government's motion to dismiss the charges against Flynn.  Reading the decision, it reminds me a lot of another decision from another field in another time by another court.  That other decision is Bush v. Gore.  I wanted to say a bit about why I see them as similar.

First, the context.  Both Bush v. Gore and In re Flynn occurred in hyper-partisan political environments.  In Bush v. Gore, the outcome of the 2000 Presidential election hinged on the result in Florida.  The vote counting was being overseen by the Florida Supreme Court, which was a liberal court that many conservatives believed was trying to stack the deck on the recount to help the 2000 Democratic candidate.

In Flynn, the defendant is a close supporter of the President.  The President strongly wants the charges dismissed in Flynn's case so he can use the resulting narrative of that case as part of his campaign in the upcoming election. The district court proceeding is being overseen by Judge Sullivan, a liberal judge who conservatives think is trying to interfere with the dismissal of Flynn's case to help the 2020 Democratic candidate.

Next, the timing.  Both Bush v. Gore and In re Flynn involve extreme time pressures. In Bush v. Gore, we needed to know who won the election.  The Court had heard an earlier case from the Florida Supreme Court earlier, but the Bush v. Gore round was lightning fast: The Florida Supreme Court ruled on December 8th, the U.S. Supreme Court took the case and had argument on December 11th, and the opinion came down the next day, December 12th.

In Flynn, there is less of a timing pressure—the election is coming up in a few months, not behind us.  But still, the proceedings happened very quickly. The emergency mandamus petition was filed May 19th, oral argument was June 12th, and the opinions were handed down twelve days later on June 24th.

Next, both cases pair a novel merits question and a remedies question. As to the merits, in both cases the question of was how the lower court was supposed to apply a general principle to a new context.  And in both cases, the remedies question was whether to let the lower court then apply the law on remand.   In a normal case, the higher court would say what the law is and remand to the lower court.

But here's the most interesting part, I think.  In both cases, the court told the lower court to just flat out stop what it was doing.  And in both cases, that remedy was pretty astonishing.

In the 2000 election case, Bush v. Gore, you would have expected the state court to decide what kind of election recount state law permitted.  Instead, the Supreme Court ordered the Florida Supreme Court to halt the recount. "Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed," the majority held, "we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."   Remarkably, Supreme Court just took control and told the lower court to stop it.

Similarly, in Flynn, you would have expected the lower court to be able to rule on the motion. A motion to dismiss was filed, and the district court was considering it and wanted to hear different perspectives before ruling.  Judges get motions, consider them, have hearings, and rule on them all the time.  That's the way it normally works.  Instead, the D.C. Circuit concluded that the district judge couldn't even consider the question.  Merely having a hearing on how to decide the motion is a harm, the court concluded.  And the court didn't trust the district court to approach the law the right way if they let him proceed in the normal way.  So remarkably, the D.C. Circuit just took control and told the lower court to stop it.

Finally, there's another obvious and perhaps inevitable (although sad) similarity. In both cases, the opinions were divided along party lines, with the majority judges on the side that helped the President of the party that nominated them.

 

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  1. It would appear this outcome demonstrates that Leo Leo’s funders are getting their money’s worth.

    1. Not with Gorsuch.

      There’s some rubber meeting the road wrt the Federalist Society as to whether it’s going to be about conservative doctrine or conservative outcomes. I’ve seen signs of both impulses in the past.

      My money (and a bunch of real money) is on the cynical option; they will become what they claim liberals have always been.

      1. I think at this point the concern is that it’s neither; That the usual GOP bait and switch has infected the Federalist society, and they’re recommending judges who only have an interest in part of conservative doctrine, the part that doesn’t get in the way of liberal outcomes.

        1. Leftist, not liberal….

          1. Fascist, not leftist.

            1. LOL that fascist Federalist Society! Beginning to sound quite leftist in here!

          2. Left-right-left; it’s a classic march. Your terminological tautology Is terminally tedious. Also wrong.

        2. You see liberals freaking everywhere, Brett.

          What do you mean, anyhow? The Federalist Society champions rigid adherence to legal formality, which includes ignoring a ruling’s effect on outcomes, liberal or conservative.

          I think they have wavered from that in the past (see: Barr’s speech), but it’s hard to argue that Gorsuch hasn’t continued in the mold they model, if not always adhere to.

          1. Well, he’s aping that mold, of course, but that’s different from genuinely following it.

            1. On accounta being a secret liberal I presume.

              1. One act of heresy and he is excommunicated forever.

                That’s zealotry, Brett.

          2. I am inclined to agree with Sarcastro on this occasion. I don’t think he was Robertsing his way to a conclusion he thought was politic, I think he persuaded himself that the words did indeed lead to the conclusion he found.

            IMHO he was mistaken, and I think the key error was in reading a judicial gloss on the text – “but for” – as if it was actually the text – “because of…sex.”

            But I think it was an honest mistake.

      2. “claim liberals have always been”

        Its a fact, not a claim.

        Anyways, if Gorsuch continues last week’s course, the Federalist Society isn’t going to pick the next GOP president’s judges. They won’t be trusted. The Federalist website mifgt however.

    2. You’ve set the Barr very low. What is wrong with the AG trying to protect the president’s cronies? (Did someone say Michael Cohen and Roger Stone?)

  2. I think that the similarities end there.

    When we contrast the cases, we see that the key reason why mandamus was granted was that the district court judge in Flynn acted contrary to DC Circuit precedent (US v Fokker Services):

    “So understood, the “leave of court” authority gives no power to a district court to deny a prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant’s alleged conduct. The authority to make such determinations remains with the Executive.”

    I get it that a lot of people think that “holding a hearing” is harmless, but it isn’t. There’s harm to Flynn, who has to have his attorney file additional briefs (cost). Then there’s harm to the executive branch which has its charging decision challenged (separation of powers). But we don’t conduct fishing expeditions in the US. Fokker says that in cases in situations like US v Flynn, Sullivan *MUST* dismiss. There’s nothing more to do.

    Sullivan should not be appointing an amicus to argue against the motion to dismiss because Fokker says he must grant the motion.

    Sullivan should not be appointing an amicus to determine whether Sullivan should charge Flynn with additional crimes (The amicus subsequently told Sullivan to not charge Flynn with additional crimes while punishing Flynn as if he was guilty of those crimes anyways).

    Mandamus is an extraordinary remedy which is needed if a court has a foreclosed outcome and the judge has merely a ministerial role. Based on the record, there’s no basis to conduct a fishing expedition. Fokker says that the case must be dismissed. Sullivan has the ministerial role of approving the DOJ’s unopposed motion to dismiss. Now the appeals court has ordered him to do his job and approve the motion.

    1. tylertusta — What does Fokker have to say about defendants who have already pleaded guilty?

      Also, how does executive interference with the judiciary’s sentencing power enhance separation of powers? Do you suppose, as the Trump administration seems to do, that separation of powers means the other branches should be separated from their powers?

      1. Good question. In footnote 1, the Court says that the context of the guilty plea doesn’t matter. It does not cite Fokker, but rather Wright & Miller.
        On the other hand, I am not convinced that the harm to Flynn in holding a hearing is so great as to warrant the extraordinary remedy of mandamus. Delay, expense, time . . . these kinds of harms happen all the time. If a judge denies a disputed motion to dismiss at the *outset* of a case which clearly should have been granted, these kinds of costs are way higher than Flynn would have had to endure, but I am not aware of mandamus being typically awarded in such circumstances.

        1. If the motion was just straight-up denied then Flynn would have appealed this as an abuse of discretion.

        2. What does Wright & Miller cite? A 1960 intermediate appellate decision?

        3. The problem was really not in having a hearing, but rather letting Gleeson intervene. That was the unprecedented aspect (as the majority pointed out) – one private individual prosecuting another, with the intent to incarcerate him.

          But without the involvement of Gleeson there would be no reason for the hearing. There would be no way to get more evidence into the record, with both legal and legitimate parties to the case in agreement as to dismissal, and neither having any incentive to add evidence to the record. And the record showed that the government had made a plausible argument about why changed circumstances (to correct past government misbehaviors) required dismissal. No Gleeson meant no new evidence, which meant no reason for a hearing.

      2. “[E]ven after a defendant has been convicted of a crime, a prosecutor may obtain a Rule 48(a) dismissal based on broad considerations of justice.” United States v. Gonzalez, 58 F.3d 459, 462 (9th Cir. 1995)

      3. I know a lot of punditry are saying that post-conviction Rule 48 (a) motions are treated differently, but they’re wrong.

        There was a similar case a decade ago in which the DOJ found misconduct after conviction but before sentencing. The DOJ filed a Rule 48 (a) motion to dismiss the case and it was granted by the district court Judge. That case was Ted Steven’s. The district court judge was Judge Sullivan. The irony does not escape me.

        To answer your question directly, Fokker says nothing about whether Rule 48 (a) who have plead guilty but are awaiting conviction, but Rule 48 (a) has never been held to only apply to pre-sentencing situations. As I described above, Rule 48 (a) motions can and have been made in similarly situated cases.

        As for the separation of powers argument, you’ve got it backwards. Judges don’t have an inherent power to sentence everyone. Article III judges act on cases and controversies. As soon as the executive said that they were dropping the case, there is no longer a constitutional authorization (so to speak) for Sullivan to sentence Flynn.

        By searching for ways to continue the prosecution, the judiciary was usurping the power of the executive and interfering with its Article II charging authority.

        Essentially, Sullivan wanted to sentence someone that the executive now says is innocent. How could Sullivan possibly continue without the executive now? Sullivan cannot order Flynn into custody without the cooperation of the Marshalls. Is the Federal Bureau of Prisons really going to imprison someone who the DOJ says is innocent?

        Assuming Sullivan sentenced Flynn, this will get appealed. When it does, the DOJ and Flynn will go to the DC Circuit and both will continue to argue that Flynn is innocent. Sullivan is not a party to the case, so unless he further assumes additional powers, he cannot appear to argue that Flynn is guilty. At which point does this charade of Judges acting as if they’re the Attorney General end? Probably as soon as it lands at the DC Circuit, in my view.

        1. Re: Stevens.

          Like in Stevens, the prosecution here appears to have withheld a good deal of evidence in support of Flynn, despite court orders to provide all evidence to the court and the defense.

          Why isn’t Sullivan furious about this?

          Is this case the Ted Stevens prosecution redux?

          1. That’s a *very* good question. Why isn’t Sullivan mad that the Special Counsel’s prosecutor withheld Brady evidence?

            Sullivan was reportedly so livid at being deceived in the Stevens case that he issues a standing order in each of his criminal cases for Brady material to be released to the defense.

            Instead of trying to take the government to task for withholding evidence that shows that the materiality element of the charge wasn’t met, Sullivan attacks the government for reversing course. Sullivan then attacks Flynn for trying to say he’s innocent.

            1. I reference this below, but instead of Bush v Gore, there are far more similarities here with the Ted Steven’s Corruption case.

              That had massive political implications, and likely threw the Alaska Senate election in favor of the Democrats, giving them the critical 60 seats needed in 2008.

              And there was massive malfeasance on the part of the DOJ and prosecutors in that case (which ALSO had a Rule 48(a) withdrawal, and AFTER conviction).

            2. “That’s a *very* good question. Why isn’t Sullivan mad that the Special Counsel’s prosecutor withheld Brady evidence?”

              Because he already rejected the defense’s claim that the prosecution withheld Brady evidence.

              1. Which is a pretty weird thing to continue to do after the prosecution confesses they did, and supplies the withheld evidence.

                1. It is really odd.

                  As a judge, if you ordered the prosecution to produce all Brady Evidence, and they didn’t….Wouldn’t you be upset?

                  1. You’d think this opinion would mention something as blatant as Sullivan rejecting Brady claims that were legit.

                    More oddness! Almost as though y’all got no clue about the Brady stuff.

                    1. I would think that in a case about lying to the FBI, 302 documents where the FBI agents state they “didn’t think the subject lied” would be material evidence.

                      Wouldn’t you?

                    2. Why would it? Credibility determinations are not great evidence to begin with, especially compared to actual evidence contradicting what Flynn told them, which is all over the place.

                      It should be telling that the ones waiving around Brady are all the non-lawyers here.

                      Brady is not very broad in operation; it should be much broader. But it’s not.

                    3. “Why would it? Credibility determinations are not great evidence to begin with, especially compared to actual evidence contradicting what Flynn told them, which is all over the place.“

                      Actually there was no evidence whatsoever that Flynn lied, except for his coerced plea. Normally, almost contemporaneously filed
                      FD 302s of the interview can be admitted into evidence as a exception to the Rule against hearsay. But that-version of the 302s filed the day of the interview mysteriously disappeared (which was apparently quite a feat, since the FBI’s Sentinel 302 change management system was installed to prevent just that sort of mischief). What they had available were 302s filed better than a month later, and edited by Peter Strzok, under supervision of Lisa Page, and approved by her boss, DD McCabe. The legal consequence of that is that those 302s are inadmissible hearsay. They might get the contents admitted as a refreshed recollection, but by then Strzok had been fired for lying, and Pientka would open himself up by testifying to questions about the changes made, why he was detailed the summer before to attend a briefing to get a baseline reading on Flynn, who edited his 302s (apparently Strzok and Page), why was his testimony in the 302s that Flynn appeared honest removed from the edited 302s, why Flynn was told he didn’t need an attorney, why he wasn’t given the standard §1001 warning, why Flyn was never shown the transcripts, why their boss, FBI CD AD Bill Priestap, was overruled in this regard, etc.

            3. Sullivan’s “rage” was kabuki theater because the damage had already been done to Stevens. Since the political outcome was achieved Sullivan was free to admonish the DOJ.

              He never ever ever would have otherwise.

              1. Ah, because Sullivan was a deep state operative then as well.

          2. Why isn’t Sullivan furious about this?

            Maybe he thinks there are important differences between the two cases.

            1. Withholding material evidence despite a court order to produce it all?

              Resulting in a rule 48(a) dismissal? (Which was both cases. And after conviction. But before sentencing)….

              The similarities are striking…

            2. Maybe he only got mad in the Stevens case because it was too late for getting mad to save Stevens’ political career. While getting mad in the Flynn case might help Trump.

              1. Right.

                Because he couldn’t possibly have been acting in good faith in both cases.

                It’s just not possible for someone you disagree with to do that, is it, Brett? Everything, even things you like, are just part of a dee[per plot against you and all you hold dear.

                1. Bernard,

                  We’re asking for a reason.

                  If you’re a sitting judge in a case (Like Judge Sullivan is), and the Prosecution has withheld material evidence for YEARS, despite court orders to turn over all material evidence…

                  Wouldn’t you be mad?

                  What “important issues” in this case make would make withholding material evidence something not to be mad about?

          3. Sidney Powell was essentially asked that, and she said she had no idea. I’m wondering about a stroke or something — Sullivan is old enough for that and it can change your cognitive abilities.

            1. Wondering about a stroke . . . or something?

              1. Lots of common meds have side effects that mimic dementia in the elderly, which he *is* — he’s 73 years old. He may have real dementia. All kinds of things, including “transient ischemic attacks” which are mini-strokes. Both Hypoxia and Diabetes can mess you up.

                What I was/am trying to say that when a man of his age and experience suddenly acts out of character, one possibility is always medical.

        2. Trump has set up a protective Rao of judges in the DC Circuit.

    2. Mandamus is an extraordinary remedy which is needed if a court has a foreclosed outcome and the judge has merely a ministerial role.
      I don’t think that’s what the DC Circuit held, though.

      1. That’s just one element to granting a writ, so I apologize if I wasn’t clear.

        From Cornell:

        “In the federal courts, these orders most frequently appear when a party to a suit wants to appeal a judge’s decision but is blocked by rules against interlocutory appeals. Instead of appealing directly, the party simply sues the judge, seeking a mandamus compelling the judge to correct his earlier mistake. Generally, this type of indirect appeal is only available if the party has no alternative means of seeking review. “

        1. No, I am the one who wasn’t being clear. I don’t think that the DC Circuit said that the judge’s role is merely ministerial.
          They did his job for him, and said how he should act, but they didn’t say that the role when the government withdraws in cases like this is ministerial; that would render the ‘leave of the court’ language a nullity.

          1. It is nearly ministerial, though, absent facts which clearly weren’t present.

    3. Indeed.

      I think Sullivan could’ve held a short hearing soon after the 48(a) motion to hear out the government.

      But when Sullivan specifically appointed an amicus to “oppose” the motion (if it was a neutral amicus, things might have been different) and to “further explore” the government’s motives, as well as suggesting additional charges, it was a bridge too far, and intruded upon the executive branch’s charging authority.

      1. Even assuming arguendo that this is so, I agree with Prof. Kerr that the remedy shouldn’t have been mandamus; it should have been overturning upon appeal.

        That’s how the system is set up; we don’t generally correct error in situ, but wait for the proceeding to run it’s course.

        1. That would have gravely damaged the executive branch’s power, by subjecting it to further examination and oversight of its prosecutorial discretion and prosecuting decisions. That is not the domain of the judicial system.

          1. That’s not what you said when we were talking about DACA…

            1. Well, DACA was never really about case-by-case prosecutorial discretion, but about a conferral of benefits in violation of the law.

              1. So prosecutial discretion is no longer prosecutorial discretion if you do it two cases at a time? Or three? Or ten? Or 100? Where is the line? Do tell..

                1. Prosecutorial discretion isn’t prosecutorial discretion when instead of just deferring or not prosecuting someone, you also give them lots of benefits, in violation of the law.

                  1. So you opposed “wet feet dry feet” executive order??

                2. The principle is firmly in place in English common law and was a decisive reason why James II was replaced on the English throne by a Dutch king (who couldn’t call himself king in the Netherlands).

                  DACA and DAPA are classic uses of the Dispensing power, which was specifically denied to US presidents with the “take care” clause of the Constitution.

          2. That would have gravely damaged the executive branch’s power, by subjecting it to further examination and oversight of its prosecutorial discretion and prosecuting decisions

            No – it wouldn’t. An overturned lower court decision won’t do any of that.

            1. The examination and requirement to undergo oversight would.

              1. In what ways that aren’t cured by later being overturned?

                1. It’s covered by the opinion. Read it.

            2. An overturned lower court decision won’t do any of that.

              You and the dissent pretend as though there was a forthcoming decision that could have been appealed. The judge had other plans for what as far as I know was an indeterminate time period (and if you’ve ever had a judge sit on a motion for months or even years without ruling, you know there’s nothing you can do to change that beyond exactly what was done here). The ongoing ill-defined and inappropriate process was part of the need for the mandamus.

              1. Sullivan had a briefing schedule, chief.

                1. Sullivan had a briefing schedule, chief.

                  As do nearly all motions — wow.

                  But I’m sure you know that a briefing schedule in no way, shape, form, or fashion dictates when the judge is going to rule on the motion.

                  Chief.

            3. Ginsburg in a remarkably similar case in a 9-0 decision said just last month that conduct like Sullivan’s went “well beyond the pale.”

              “Instead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel…”

              If Sullivan had merely set up a hearing and told DOJ and Powell he wanted to hear arguments on why dismissal was appropriate the court would have waited to see what the ruling was and acted or not acted then. Where Sullivan crossed the line was exactly what Ginsburg slammed the 9th for: naming amici and “invited them to brief and argue issues framed by the [judge].

        2. In any other situation, would Prof Kerr allow an innocent man be sentenced by a Judge in order to satisfy procedural rules?

          Mandamus was designed for situations just like this.

          1. Objection! Assumes facts not in evidence!

            1. From Cornell:

              “In the federal courts, these orders most frequently appear when a party to a suit wants to appeal a judge’s decision but is blocked by rules against interlocutory appeals. Instead of appealing directly, the party simply sues the judge, seeking a mandamus compelling the judge to correct his earlier mistake. Generally, this type of indirect appeal is only available if the party has no alternative means of seeking review. “

            2. 1. As Martinned said, innocence has manifestly not been proven.

              2. Your logic proves way to much. Do you think mandamus should be a common remedy?

              1. I’m not asking for Flynn.

                I’m asking a hypothetical: do we really think that a similarly situated defendant whose name is not Michael Flynn- who the executive now says is innocent- be *sentenced* and then go back and appeal?

                Where is the justice in that?

                What if the sentence involves serious jail time, fines, or even the death penalty? At which point does this become an absurd exercise in punishing the innocent person (who is not Michael Flynn) via an abusive process?

                At the end of it all, are we just going to say to this person “So I guess you’re innocent despite us all knowing about it before sentencing. Oops.”

                That’s not justice.

                1. 1. Yes; I think you need to allow lower courts to make their mistakes as they do their job. Appeals courts job is to correct error, not to be super-lower-courts.

                  2. Justice is a good goal, but justice via special pleading and rule breaking is not actually justice in any impactful way. Or worse, it gives a license that creates more risk of harm than potential good.

                  3. It sucks, but our justice system requires an error to manifest before it is corrected. I don’t believe case-by-case exceptions willy-nilly are a superior solution.

                  “So I guess you’re innocent despite us all knowing about it before sentencing. Oops.”
                  This…happens a decent amount. It’s the problem with our system being one of laws and not men.

                  1. 1. Appeals courts are here to correct errors, yes. That’s what happened here. The error is apparent: Fokker demands granting the MTD. Fokker does not allow expansive inquiries into charging decisions made by the DOJ. I can think of no case that allows Judges to assume the authority to make, prosecute, and sentence criminal charges.

                    That’s beyond a minor error. That’s clear grounds for reversal and grounds to grant mandamus. There’s a difference between “giving district court judges room to experiment” and “giving district court judges license to violate appellate precedent.”

                    2. Mandamus is made for situations like this where a district court judge veers off of regular order. Let’s not forget that it was Judge Sullivan who appointed an amicus to consider criminal charges and allowed the public to comment in his own docket.

                    It is Judge Sullivan who is breaking the rules here. He couldn’t even assert a FCR for his orders!

                    Special tip: When judges assert “inherent authority” without citing rules, regulations, or case laws that specifically authorize their actions, they’re making it up. Sullivan did that here.

                    3. The error is manifest already. The Judge is not granting the MTD and is instead getting people to argue against it. He’s actually hiring outside judges to argue that DC Circuit precedent does not apply.

                    4. Sounds like a cop-out to me. Perpetuating plainly visible injustice “just because that’s how it’s always been done” is the excuse of the lazy or the partisan, especially since other defendants can have their cases dismissed at a similar juncture.

                    1. 1. No, this isn’t error correction, it’s pre-crime. Mandamus is not the same thing as reversal.

                      2. There’s nothing about the latest developments in this case that is in regular order.

                      3. Until the judge makes a ruling, the error is not manifest.

                      4. I give the Devil benefit of law for my own safety sake.

                    2. The manifest error was giving Gleason a voice. That was giving one private party (with known adverse views) the right to intervene and advocate for the guilt, and possible incarceration, of another. That isn’t how our justice system works, and would have deprived Flynn of Due Process rights.

                    3. The second manifest error was looking into new bringing charges on perjury. For two reasons.

                      1. There has never (to my knowledge) been a perjury case brought for pleading guilty to a crime, and later withdrawing the plea. (In fact, such cases would represent a catch-22 for defendants)

                      2. It’s not the responsibility of the court to suggest and investigate new charges to prosecute someone on.

                    4. Errors generally come from making a ruling, not from this interlocutory stuff.

                      AL, contempt is *absolutely* the responsibility of the court.

                2. @tylertusta: I think someone who is not special friends with the President wouldn’t be “similarly situated” to Flynn, so that constrains the thought experiment somewhat.

                  1. Someone that wasn’t on Obama’s special shit list wouldn’t be similarly situated either.

                    Something is deeply wrong when a meeting is held in the White House between the President, VP, FBI director, National Security director. The FBI director says Flynn’s call was legit, Biden suggests using the Logan act as predicate, and Obama orders Comey to carefully select the reliable agents for the investigation, and then Susan Rice, on the suggestion of the WH counsel writes an assignment covering memo to herself, saying Obama insisted that every thing be “by the book”, which pretty much confirms that that is exactly the opposite of what was said.

                    1. I read about this in a book some years ago. Is that where you got it?

                    2. See here for one.

                      I can only put in one link but Yahoo’s headline said: “Susan Rice documented Flynn meeting at direction of White House Counsel’s Office”

          2. Innocent?

            On what basis do you declare Flynn innocent?

            1. On the basis of the request of the Prosecution to dismiss the charges, because in their opinion, there was no actual crime committed.

              1. Right. And thus returning Flynn to the initial presumption of innocence that most people in this country still enjoy.

                This is only hard for those trying to make it so.

                1. Nope. He pleaded guilty and he has been freed via the political intervention of the AG, who is going about trying to free a number of Trump cronies. No innocence in this fact pattern. If he was innocent he would have moved to withdraw his guilty plea.

                  1. If he was innocent he would have moved to withdraw his guilty plea.

                    You must be joking. He moved to withdraw his guilty plea over 5 months ago.

  3. ” The President strongly wants the charges dismissed in Flynn’s case so he can use the resulting narrative of that case as part of his campaign in the upcoming election.”

    You lawfare people are such traitorous trash.

    1. Now that we got that out of the way.

      What do you think about the thesis of the comparison between BvG and USvFlynn? You like both outcomes, I presume…

      1. Well, in both cases we had extraordinary remedies for extraordinary judicial malfeasance.

        In the BvG case we had a state supreme court ordering an only sorta state wide recount, at a point in the process where the candidates’ right to demand recounts had expired, and any recounts were, by state law, at the discretion of the executive branch, which had exercised that discretion in the negative. So, right off the bat you had the court usurping an executive branch power.

        The partial state-wide recount involved affirmatively refusing to require that the ballots be counted under a uniform standard. Not even a uniform standard at each polling place, elections workers were authorized to change the standard they used from ballot to ballot. Might as well have just come out and urged that the count be rigged. This led to a 7-2 Supreme court ruling that the Florida Supreme court was violating the EPC. (It dropped to 5-4 on the question of remedy; 2 ‘liberal’ justices thought the Florida court should get another bite at the apple.)

        In USvFlynn you’ve again got the lower court usurping an executive branch decision, by refusing to accept the prosecution’s decision to drop the charge. This would be unusual enough to do under most cases, in a case where the prosecution had been dropped because the government determined it had resulted from misconduct on its end, (With the misconduct having been proven!) the defendant was in agreement, and there was no victim complaining, it was utterly unheard of.

        Then we get to the judge taking the unprecedented move of appointing, essentially, its own prosecutor to recommend charges, and picking for that role somebody who had already publicly expressed animus towards the defendant.

        So, both unusual rulings, in response to similar, and similarly unusual, judicial misconduct.

        The big difference is that the Florida supreme court conceded, while at last report, Sullivan has failed to comply with the appeals court’s mandamus order, and is apparently preparing to appeal it.

        1. I find the presentism of your outrage to be unsurprising, but nevertheless striking in how stark it is.

          At least you’re consistent in your final analysis, and agree with Prof. Kerr’s note.

          1. Care to expand on that charge of “presentism”? I related BvG according to what was known at the time.

            1. Your rage at Flynn versus your Bush v. Gore analysis. Doesn’t show disingenuous, just emotions like any human has.

              1. Even were I to grant that, I don’t see how it’s “presentism”. That’s got a meaning, you know.

                As I see it, the BvG and Flynn case were basically the same: The judiciary going off on an unjustified tangent, and getting slapped down from higher up the food chain.

                And there’s no rage here, I’m burnt out by decades of watching this sort of thing happen, it barely moved my emotions off zero anymore.

                1. I’m using the psychological meaning not the historical one. I do see the ambiguity though.

                  1. You’re going to have to expand your expansion, I still don’t get the charge.

                    1. Presentism, as I was using it, is the privileging of more recent events over less recent ones, for purposes of emotional fervency, perceived priority, etc.

                      Not the same as the historical morality bit at all. My bad; jargon has a way of sneaking up, and it’s an especial weakness of mine, since I love new words more than is healthy.

                    2. What’s really interesting is the number on the right here who seem more heated up about Bush v. Gore than this. Maybe an old habits situation?

                    3. Yes, that’s what I understood presentism to be. I’m still not seeing it.

                    4. Well, Sarcastro, what the Florida supreme court was up to in 2000 was basically “counting until we get it right”, in the context of directly deciding who’d end up President.

                      While this is at worst an individual injustice perhaps perpetrated in an attempt to influence an election, not directly dictate its outcome after the fact.

                      So, yeah, unless you were suffering from presentism, you’d be more upset about the ruling Bush v Gore overturned, than you’d be about Sullivan’s antics.

    2. Sam, you are being horribly unfair to Professor Kerr.

      He is a gentleman in every way.

      Being a gentleman and Trump certainly not being one leads him to “LawFare-like” conclusions however.

      1. Point well taken.

  4. Is the result -without further appeal – that Gen. Flynn has been convicted, his pleas having been accepted, but can never be sentenced?
    The previous record is not automatically expunged, as far as I can remember.

    Or was he not convicted, even prior to the Motion to Dismiss the Indictment?

    1. The issue Prof. Kerr has is with the remedy, not necessarily the result.

    2. He isn’t convicted. Or you could consider the conviction “nullified” or “overturned”.

      Think of it like a conviction being overturned on appeal. There’s no record of any conviction.

      1. I have been retired for five years. My recollection from cases that were dismissed after incarceration were that an immediate release was in order, but an expungement proceeding was required to change the record.

        Suppose Judge Sullivan had granted the Motion to Dismiss the Indictment [with prejudice], simply noting that no party desired a hearing. If it had been done before a plea was entered and a pronouncement of guilty then of course there would be no conviction. But I thought that after a plea and the running of the time for a Motion for New Trial the dismissal of an Indictment halted further proceedings. I did not think such an out of time Dismissal reversed the verdict and judgment.

        What you wrote seems logical except it seems in derogation of the Rules as I dimly recall them. I am trying to winnow the procedural matter from the substance here.

        1. If it’s prior to sentencing, it vacates the conviction.

          The case against Ted Stevens is an example.

          “The Verdict And Dismiss The Indictment With Prejudice” in connection with case No. 08-231 early on April 1, 2009. Federal judge Emmet G. Sullivan soon signed the order, and since it occurred prior to sentencing it had the effect of vacating Stevens’s conviction.”

        2. Rule 32 still reads pretty much as I recalled:

          (j) Defendant’s Right to Appeal.

          (1) Advice of a Right to Appeal.

          (A) Appealing a Conviction. If the defendant pleaded not guilty and was convicted, after sentencing the court must advise the defendant of the right to appeal the conviction.

          (B) Appealing a Sentence. After sentencing—regardless of the defendant’s plea—the court must advise the defendant of any right to appeal the sentence.

          Suppose Sullivan is permitted by the en banc Circuit or the Supremes to hold his hearing, on the procedural ground that mandamus did not lie pre-hearing.
          Suppose Sullivan than sentences Flynn. Any sentence. Wouldn’t Flynn be limited to appealing the sentence [which would be a no brainer, I assume]?

          1. He can’t sentence Flynn anymore, he was specifically ordered to dimiss the charges, and since the conviction was never final Flynn was never convicted.

            What Sullivan probably should have done if he wanted to throw a spanner in the gears is just hold a hearing in the motion to dismiss, deny the DOJ’s motion to dismiss, deny Flynn’s motion to withdraw his guilty plea, then sentence Flynn to hard time and order immediate incarceration.

            He would have had it all thrown out on an abuse of discretion, but for one day, or at least one hour he’d have had his way.

            Where he screwed up royally was appointing amici to basically privately prosecute Flynn. That was never going to fly.

  5. It’s the remedies part that shocks me. Mandamus is supposed to be an extraordinary relief. The fact that it was granted when it was entirely possible for the trial court to hear both sides of the argument (appointing an amicus because neither party was willing to give the other side of the argument) and agree with the parties on the law or, if not, the normal appellate procedures could have applied to fix the error.

    As a defense attorney, I’d love a dramatically expanded right to review Judges decisions before my client gets sentenced or, even better, to bypass the trial court and immediately have the appellate court make that decision if I don’t trust the trial court’s judgment, but I don’t think I’d be allowed that right. This strikes me as something that will be inconsistently applied to a case that’s already an aberration from the Department of Justice’s normal policies.

    1. But that was the core problem. Gleeson had no legitimate place there. He was essentially a private individual, with well published views adverse to the defendant, being allowed to intervene and advocate that another private individual, the defendant, should be found guilty, and possibly incarcerated. That isn’t how our judicial system works, where the only parties allowed are the government and the defendant. The majority believed that that Gleeson’s intervention would have violated Flynn’s Due Process rights.

    2. As a defense attorney would you like third parties to be able to intervene and challenge charging decisions or plea agreements as too lenient?

  6. Professor Kerr,

    While Bush v Gore is interesting, the real court case to compare to the Flynn case is likely the Ted Stevens corruption case.

    Like Stevens, we have a case shortly before a major election, that promises political implications to sway an election
    Like Stevens, we have the prosecution withholding material evidence.
    Like Stevens, we have the government hiding FBI 302 documents that would helped the defense.
    Like Stevens, we have the government hiding other evidence that would’ve helped the defense.
    Like Stevens, we have a rule 48(a) request to dismiss the charges…after conviction.
    And like Stevens….Judge Sullivan is presiding over the case, yet again.

    Isn’t the Ted Stevens corruption case the real comparison here?

    1. One further question: did Stevens plead guilty? At least under R32 that would make a difference.

      1. One of the issues was that Flynn’s plea deal should be null and void because the government didn’t disclose all the terms of the agreement to the court as required. That was clearly prosecutorial misconduct. Flynn’s original attorneys negotiated a side deal that Michael jr. would not be prosecuted (actually persecuted, but let’s go on), when that was disclosed Sullivan probably had no choice but to instuct them to redo the plea deal, which meant Flynn could decline to continue his plea.

  7. And in both cases the decision to override the lower courts was the correct decision as regards actual law.

  8. But still, the proceedings happened very quickly. The emergency mandamus petition was filed May 19th, oral argument was June 12th, and the opinions were handed down twelve days later on June 24th.

    A couple of dates missing from Orin Kerr’s timeline.

    1. Flynn was charged in Dec 2017 – charges which the DoJ now thinks are unsupportable. So that would be two and a half years left hanging on unsupportable charges. Not a particularly speedy trial.

    2. The DoJ’s motion to dismiss was filed May 7 2020. So the judge has already had seven weeks to hold as many hearings as he likes on what the Appeals Court thinks is a decison with only one possible answer.

    3. And the judge’s scheduled hearing is set for July 16, that’s another three weeks. Just for the hearing, mind, not his actual decision.

    So it seems to me that the argument that it’s unfair to rush the judge, and humiliating to take the decision from his hands, strikes me as a bit weak. If the Appeals Court can hold a hearing and reach a decision in 36 days, the judge could have reached his decision and hung on to his dignity long ago.

    1. En passant, I’ll note that it took Sullivan 6 days to grant the government’s motion to dismiss in the Ted Stevens case.

      1. Exactly. But it takes…months…here?

    2. Judge Sullivan probably would have benefited in this case from a less, er, “federal court” approach. He sees this motion, is suspicious of the government’s change and then calls for amicus briefing and ends up having to do mandamus briefing etc. etc. If he simply wanted to create a record and probe the government’s decision making, he could have set a hearing the week after the motion was filed and asked the prosecutors about it quickly and directly.

      1. And they would have responded about it, as indicated in their very long request to dismiss.

        And then Judge Sullivan would have to make a ruling on the motion, relatively quickly. Which would be ideal for everyone. Except perhaps those who would like to prolong the trial until November…

      2. Exactly. That was his screw up in getting his ass handed to him. He could have said his piece, ripped Flynn, ripped Barr, ripped Trump, made his headlines, and perhaps even sentenced Flynn and had him incarcerated, until it was all reversed.

        Whether it was his idea, or some ex parte suggestion, the decision to appoint amici to argue for continuing the prosecution was his undoing.

  9. “Similarly, in Flynn, you would have expected the lower court to be able to rule on the motion. A motion to dismiss was filed, and the district court was considering it and wanted to hear different perspectives before ruling.”

    Well, that’s an astonishingly dishonest description of what was occurring.

  10. Conservatives are greatly concerned about procedure and fairness with respect to government treatment of Michael Flynn (who lied in court, associated with the Russians, and was fired by the president for lying to the vice president), yet not so much about procedure and fairness with respect to those affected by DACA (who are not as white as Republicans would prefer).

    This is part of the reason conservatives will continue to get stomped in the culture war, and deservedly so.

    1. Not only stomped, but assaulted, robbed, murdered, and their businesses burned down.

      Whoopee! Go Culture War Go!

      1. Nixon won 49 states in 1972…

        1. Well 68 was the more relevant election, but he won that too just more narrowly. Although George Wallace probably took more popular votes from Nixon, but more electoral votes from Humphrey because the Democratic South was still pretty solid in 68. For instance, Wallace took Arkansas with 38%, Nixon had 31, Humphrey 30, but it’s hard to imagine Eisenhower’s VP taking Arkansas just 10 years after Eisenhower nationalized the Arkansas Guard to eforce desegregation in Little Rock.

    2. “What about…” Kirkland

  11. Republicans playing hardball — in the context of politicization of the Department of Justice, this time — doesn’t bother me.

    It will set the stage, soon enough, for a circumstance in which every time a conservative opens his mouth to complain about anything, better Americans will respond by shoving even more progress — reason, education, inclusiveness, science, modernity — down conservatives’ throats.

    How the Republicans handle the next seven months may determine whether that progress is positioned sideways before the shoving starts.

    Your call, clingers. Choose wisely.

    1. You keep on using this word ‘better’. I do not think it means what you think it means.

      Shoving? You jackholes have been shoving your bullshit down the throats of Americans since Woodrow Wilson, and you still can’t figure out why you lose.

  12. Isn’t it misleading to discuss Bush v Gore without mention of Bush v. Palm Beach County Canvassing Board?

    I remember my contemporary reaction was that in Bush v Gore, SCOTUS was punishing the Florida Supreme Court for ignoring Bush v. Palm Beach County Canvassing Board from 8 days earlier. Courts are so collegial and civil that they would never say, “We’re going to send someone to beat you up for disrespecting SCOTUS.” nor “You must be a bunch of idiots.” No direct words that might appear to be ad hominem. That doesn’t mean there are not elements of animus and revenge in decisions.

    IMO Bush v. Palm Beach County Canvassing Board and the actions by the Florida Supreme Court in the intervening 8 days, are the context in which Bush v. Gore should be interpreted. By ignoring Bush v. Palm Beach County Canvassing Board, the Florida Supreme Court was thumbing its nose at SCOTUS, and Bush v. Gore was the consequence.

    1. Yes, the Florida Supremes decided to ignore the Washington Supremes and got spanked.

    2. I remember my contemporary reaction was that in Bush v Gore, SCOTUS was punishing the Florida Supreme Court for ignoring Bush v. Palm Beach County Canvassing Board from 8 days earlier.

      Not true. Bush v. Gore was an equal protection decision. The conservatives couldn’t get 5 votes for the proposition that Florida was violating the earlier decision.

      1. Dylan,
        The Florida Supremes got vacated and remanded in Bush v. Palm Beach, they really couldn’t ignore that and move on to the next case to decide the election because the hanging question, which wasn’t addressed, from Palm Beach was critical to the outcome in Bush v Gore.

        From Oyez:
        “In a per curiam opinion, a unanimous court held that there was “considerable uncertainty” as to the reasons for the Florida Supreme Court’s decision. Accordingly the court did not review the federal questions presented by the case. Instead it vacated the Florida Supreme Court’s decision and remanded the case for clarification of two questions. One, did the Florida Supreme Court think that the Florida Constitution circumscribed the plenary power of the Florida Legislature in election matters conferred by the US Constitution? And two, how much weight did the Florida Supreme Court give to 3 USC Section 5?”

  13. In Bush v Gore the majority went way out of their previous jurisprudence. Previously those five had restricted equal protection arguments to race — not gender, not socioeconomic status, not sexual orientation. Suddenly they extended protected status to Republican presidential candidates. I don’t see any such stretching by the court in Flynn.

    1. But equal protection is available to everyone. And the equal protection here wasn’t extended to presidential candidates, it was extended to voters. The lower court wasn’t permitted to craft a recount where voters HERE were treated differently from voters THERE. The violation was that the votes were being counted in different ways in different places, and by design.

      1. A federal court, absent racial animus, cannot tell a state how to conduct elections. It’s why Nixon didn’t go to court to challenge the 1960 results. His lawyers told him there wouldn’t be jurisdiction. And there wasn’t. No federal court has done what the Bush v Gore court did, either before or since.

        1. They can federal elections, that’s a federal matter even if the states run the elections.

        2. That’s fine as far as it goes but it’s not just any state institution that decides how presidential elections are conducted, it’s not the governor, it’s not the Secretary of State, it’s not the Supreme Court, the legislature has plenypotentiary power to decide how electors are decided.

          Scotus asked the Florida Supremes a week before Bush v Gore to answer this question: ‘One, did the Florida Supreme Court think that the Florida Constitution circumscribed the plenary power of the Florida Legislature in election matters conferred by the US Constitution?’

          They never answered, hence the decision in Bush v Gore.

  14. I find use of mandamus here dubious. If a statute permits a court to make a discretionary ruling, it seems to me that means it can hold a hearing and take evidence and argument on the issue before deciding. The time for appeal is after its decision. If it heard incorrect evidence or applied the wrong legal standards or otherwise abused its discretion in making its decision, the court of appeals can decide that then.

    The government might ultimately have authority to dismiss the indictment, and it might have this authority regardless of whether a judge might consider doing so unwise or against the public interest. But that issue should have been decided through a regular appeal of the judge’s ruling after it happened, not through mandamus before a hearing was even held.

    1. Nope. Gleeson is a private individual. His intervention would have violated Flynn’s Due Process (and through that his Equal Protection) rights. Our system of Criminal jurisprudence has two parties (the government as prosecutor and the defendant). Not as here, three – the traditional two, plus another private party acting as an advocate for finding the defendant guilty, and subject to criminal judgement, possibly including incarceration.

  15. “In both cases, the opinions were divided along party lines”

    Not really. Bush v. Gore was a 7-2 decision (or at least 6-3) that the standardless recount going on in Florida violated the Equal Protection Clause. The 5-4 part was whether Florida should get another chance to establish standards and start over even though the time for recounts had already expired.

    1. And as the remedy depended on a question of federal law, there was no reason “you would have expected the state court to decide what kind of election recount state law permitted.”

      “Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed,” the majority held, “we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.”

      Not revealing that the decision was issued on December 12 seems a little disingenuous.

    2. When you repeat a lie long enough, do you start to believe it?

      Four judges:
      “The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.”
      (Breyer, dissenting)

      Four judges:
      “The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. ___ (per curiam), or this case, and should not have stopped Florida’s attempt to recount all undervote ballots, see ante at ___, by issuing a stay of the Florida Supreme Court’s orders during the period of this review, see Bush v. Gore, post at ____ (slip op., at 1).”
      (Souter, dissenting)

      Four judges:
      “Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.”
      (Ginsburg, dissenting)

      The reason I saw four judges on each of those dissents is because each of those dissents …. the parts I just quoted … were joined by all four dissenting judges.

      The three judge dissent (in whole) was the Steven dissent.

      Trying to use the weasel-words in the per curiam, five judge opinion is just that …. it’s weasel. That’s not what the dissenters actually said. It’s the majority saying, “Look, the dissent agreed with us, but in a different way, and therefore …. um, whatever.”

      Repeating a lie doesn’t make it true. It’s a 5-4 opinion.

      1. In case you weren’t clear on that, the way you tell if the majority actually commanded 7 votes for a proposition is when the other judges join that part of the opinion.

        Not when the (per curiam!) five justice opinion says, “Yeah, the dissent totally agrees with us, but didn’t join us, because the dissent is wrong.”

      2. “Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by “later arbitrary and disparate treatment,” the per curiam opinion held 7-2 that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held, 5 to 4, that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the “safe harbor” provided by 3 USC Section 5).”
        https://www.oyez.org/cases/2000/00-949

        Justice Souter, joined by Justice Bryer in full (which is why it’s questionable whether it’s 7-2 or 6-3 because Breyer went both ways).

        “It is only on the third issue before us that there is a meritorious argument for relief, as this Court’s per curiam opinion recognizes.”

        “But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter’s intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as “hanging” or “dimpled” chads). . . . I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary.

        In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order.”

        I can count. But more importantly, I can read too.

        1. Right, it was 7-2 on EPC violation, 5-4 on remedy. Democrats really want to forget that it was seven Supreme court justices objecting to what the Florida supreme court was doing. The two who dropped off were just willing to give the Florida supreme court one more chance to do the right thing.

        2. Upon further review, despite being a little liberal in joining the other dissents, Breyer didn’t really go both ways because he wrote for himself. And what did he have to say about the Equal Protection Challenge?

          “The majority’s third concern does implicate principles of fundamental fairness. . . . However, since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary judicial review, and since the relevant distinction was embodied in the order of the State’s highest court, I agree that, in these very special circumstances, basic principles of fairness should have counseled the adoption of a uniform standard to address the problem.

          Nonetheless, there is no justification for the majority’s remedy.”

          So that’s 7 justices acknowledging that the Florida recount was violating Equal Protection, with two justices disagreeing with the ordered remedy.

          Didn’t it ever occur to you to look at the reasons why justices Stevens and Ginsburg didn’t join the Souter and Breyer dissents in full? It’s pretty obvious if you actually read them rather than cherry picking quotes.

          1. Yeah, the arguments as to how it was “really 5-4 or 6-3” are a form of revisionist history. I think the equal protection holding was stupid, but it clearly garnered 7 votes. There’s no doubt, however, that 4 justices dissented on the issue of giving the Florida Supreme Court another chance to conduct the recount. Nothing wrong with saying that part was 5-4.

            1. “There’s no doubt, however, that 4 justices dissented on the issue of giving the Florida Supreme Court another chance to conduct the recount. Nothing wrong with saying that part was 5-4.”

              I agree completely and said as much in my initial post (although I believe Ginsburg and Stevens would have just let Florida continue, so maybe it’s more accurately described as a 5-2-2 decision). I haven’t paid any attention to the Flynn trial and have no opinion on what happened or how it compares. But many of the “the Supreme Court is nothing but a political actor” types love to treat Bush v. Gore as if it were only a 5-4 decision split along party lines. That narrative becomes much weaker if they acknowledge that there were, in fact, 7 votes holding that the Florida recount violated the Equal Protection Clause.

            2. It was so stupid it got seven votes, including half the ‘liberals’ on the Court.

              A reminder: The Florida supreme court refused to require that a uniform counting standard be used. It was requested, and they refused.

              You were looking at a recount where the standard wasn’t just going to vary from county to county, it was actually permitted to vary from one ballot to the next!

              And this wasn’t just prospectively, before anybody could know how changing the standard would effect the outcome. It was after everybody knew the count was razor close, and such choices could swing who won!

              It was crazy that they ever thought that would survive scrutiny, they must have just assumed it would never be subject to it.

              1. “It was so stupid it got seven votes, including half the ‘liberals’ on the Court.”

                Now do Bostock.

  16. Many here are overthinking this. It is really fairly simple.

    The manifest error corrected that required correction by Mandamus by the DC Circuit was the appointment of former judge Gleeson to intervene and argue against the government’s motion to dismiss.

    Here is what I see to be the gist of the case:

    Fifth, the dissent minimizes the import of the district court’s orders, claiming that we are granting mandamus “before the district court has acted.” Dissenting Op. 2 (quotation marks omitted). Yet the district court has acted here. It has ordered briefing and scheduled a hearing in order to provide a court-appointed amicus the opportunity “to present arguments in opposition to the government’s Motion to Dismiss.” Order Appointing Amicus Curiae, ECF No. 205, at 1. In other words, the court has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges. Although no decision has yet been made on the motion to dismiss, the district court’s judicial supervision, detailed supra 7–8, “threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry.” Wayte v. United States, 470 U.S. 598, 607–08 (1985). As explained above, we have held such “interference with the internal deliberations” of the Executive Branch to be a quintessential irreparable injury giving rise to mandamus. Cobell, 334 F.3d at 1140–43.

    Let me repeat that: In other words, the court has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges.

  17. I was assured that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges”

    Weird.

  18. We’re all looking forward to seeing Flynn back on the campaign trail for the quo to Trump’s quid. Perhaps he’ll bring the Turkey sandwiches. You can buy quite a few for $500,000.

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