Prosecutors

The D.C. Circuit Will Rehear the Flynn Case En Banc

Look for the full appellate court to send the case back to the trial court - which is where it belongs.

|The Volokh Conspiracy |

This morning the D.C. Circuit, acting en banc, vacated the earlier panel decision in the Michael Flynn case.  The full Circuit will rehear the case en banc on August 11.  Here is the Court's order:

Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate, it is

ORDERED that this case be reheard by the court sitting en banc. It is

FURTHER ORDERED that the court's order filed June 24, 2020, be vacated. It is

FURTHER ORDERED that oral argument before the en banc court be heard at 9:30
a.m. on Tuesday, August 11, 2020.

The parties should be prepared to address whether there are "no other adequate means to attain the relief" desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).

VC readers will recall that a Government motion to dismiss is pending before Judge Sullivan in the District Court—and Judge Sullivan has asked for amicus briefing before making a ruling on the motion.  Flynn's attorneys sought a writ of mandamus from the D.C. Circuit, which would have compelled to Judge Sullivan to enter an immediate dismissal.  In my previous posts about the case, I argued that close scrutiny of the Government's motion to dismiss was unwarranted but that, nonetheless, the issue of considering the motion was one for the District Court–not the Court of Appeals. I thought that the 2-1 panel decision ordering Judge Sullivan to promptly dismiss the case was "dubious" and that it wouldn't be surprising to see rehearing en banc.

Now that the D.C. Circuit en banc has ordered rehearing, it is quite likely that the full court will deny Flynn's petition and simply send that case back to the District Court. The Circuit has asked the parties to address whether, under its earlier ruling in Cheney, there are "no other adequate means to attain the relief" desired. Put simply, Flynn's desired relief is dismissal of case against him—something that the District Court is obviously empowered to do. The District Court may well dismiss the case if given the opportunity to rule. Thus, there are other means to attain the relief Flynn desires. This is not a case that warrants appellate court intervention to provide "extraordinary" mandamus relief.

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  1. Put simply, Flynn’s desired relief is dismissal of case against him—something that the District Court is obviously empowered to do. The District Court may well dismiss the case if given the opportunity to rule.

    IIRC, the government’s motion to dismiss was filed about 12 weeks ago. That’s a lot of opportunity to rule. By comparison when the DoJ filed a motion to dismiss in the Ted Stevens case it took Judge Sullivan 6 days to grant it.

    So the question is – how long can Judge Sullivan go on not ruling on the motion until it ceases to be just the District Court’s business, and becomes the Court of Appeal’s business. 6 months ? A year ? Five years ? Until Judge Sullivan retires ? What’s the legal principle summarising the limits of the District Court’s right to be left alone ?

    Flynn plainly has no other remedy but mandamus at the moment. At some stage in the next few years, maybe, Judge Sullivan may hold a hearing, maybe, and he may rule to dismss the case, maybe. But until he finally reaches a ruling, what other remedy does Flynn have ?

    1. I clicked Submit a bit too soon.

      The key question is – if Judge Sullivan hasn’t ruled by say, this time next year, and Flynn files another mandamus application next year, has Flynn’s legal position changed for the better ? Does he stand a better chance of getting mandamus. And if so why ? Why wouldn’t it continue to be the DC’s business until the DC rules ?

      1. Unless Trump wins again, Flynn either has it dismissed this calander year or he gets pardoned.

      2. So much for a speedy trial…

        Seriously, why is Sullivan dragging this out? (We know why, but it’s not right….)

        Government: “We are dismissing all charges”
        Judge: “Nope. Gotta wait 3 months. And then some more….”

        It’s ridiculous.

        1. As jjrzw72 points out, Sullivan is not the one dragging this out.

          1. Sure he is. Instead of ruling on dismissal, he called for amici, a special amicus, and a hearing– and that’s just to start, with no guarantee of a decision at the end of it.

            1. Instead of ruling on dismissal

              Um, this isn’t tv. When you file a motion in federal court, the judge doesn’t open it up on his computer, read it, and then make a decision.

              1. Um, this isn’t tv. When you file a motion in federal court, the judge doesn’t open it up on his computer, read it, and then make a decision.

                Cutesy rejoinders aside, it’s been 3 months on an uncontested motion to dismiss by the party that filed the case. Motions like that are indeed routinely granted in short order — sometimes even the same day — using a truly marvelous device called a “proposed order” that you may have heard of.

                1. Indeed. Instead, Sullivan for some reason scheduled his hearing 10 weeks out from the uncontested motion.

                  Why?

                  1. Because federal judges are busy, and getting a hearing in 10 weeks on a motion is routine.

                    1. Is it? Does it match Sullivan’s past history in identical matters?

                2. Other than procedural issues like motions to extend deadlines (and not always those), I can count on one hand the motions I’ve seen — even uncontested ones — granted the same day in a couple of decades of practice.

                  Let’s see. On an active case, I had a conference with the court relating to an uncontested motion to send out class notice in already-approved form. That conference was on May 19; he asked when we could file the proposed order. We filed it on May 21. Still waiting for him to put his name at the bottom, despite the fact that — unlike the Flynn situation — there are no legal issues to consider.

                  And right now I have a motion for default judgment (definitionally uncontested) that the magistrate judge issued an R&R for in May 2019, recommending that it be granted. (The motion itself was filed in November 2018.) Still no decision from the district judge.

                  1. Other than procedural issues like motions to extend deadlines (and not always those), I can count on one hand the motions I’ve seen — even uncontested ones — granted the same day in a couple of decades of practice.

                    That was an awful lot of words to end up agreeing with me that “sometimes” they are.

                    a motion for default judgment (definitionally uncontested)

                    Oh dear. If you’re making too-clever points like that in your motions, it would not surprise me a bit if the judges put them on the bottom of the stack.

                  2. David’s right. Plus, they short-circuited Sullivan. They could have waited for him to rule, but they went up to the Court of Appeal, whose dismissal order mooted any proceeding before Judge Sullivan. Now that ruling is under en banc review. That’s Fllynn’s lawyers’ doing.

                    1. They only “short circuited” Sullivan, because he scheduled over 10 weeks between the hearings…. Among other things.

                    2. Plus, they short-circuited Sullivan. They could have waited for him to rule, but they went up to the Court of Appeal, whose dismissal order mooted any proceeding before Judge Sullivan

                      “Mooted” is an interesting word, but yes, Virginia, that’s how mandamus orders work. They COULD have waited (indeterminately) for him to rule, but instead they had the temerity to go to the court of appeals and get closure.

                      Now that ruling is under en banc review. That’s Fllynn’s lawyers’ doing.

                      Um, no. Only because Judge Sullivan still insists on doing something other than granting the government’s unopposed motion to dismiss the case. If he did so, there would be nothing left to review. This is on him.

                    3. Sullivan has standing to appeal it.

                  3. Well, luckily if we’re looking at examples of uncontested motions for dismissal, in a criminal trial, regarding a major political figure we have evidence for how long they take.

                    We even have evidence for how long Judge Sullivan took to rule in a previous matter just like it, from the moment the prosecution asked to dismiss charges

                    One week. The Ted Stevens case.

                    But now, apparently Sullivan needs so much longer. Ten times longer in fact. To even hold a hearing, let along dismiss charges.

                    Why is that?

                    Perhaps it’s the same reason Sullivan failed to call a mistrial in the Ted Stevens case in October of 2008 on charges that the FBI was withholding evidence. (Surprise…the FBI was).

                    1. That’s rather disingenuous. It’s true that there was only a week between the government’s motion and the dismissal in the Sullivan case, but that came after months of filings and hearings on prosecutorial misconduct. This, on the other hand, was a motion out of nowhere to dismiss the charges, without any reason.

                    2. This, on the other hand, was a motion out of nowhere to dismiss the charges, without any reason.

                      For sufficiently tortured definitions of “nowhere” and “reason,” absolutely.

              2. But it should be.

                Instead, courts like to drag things out.

            2. None of that was the delay.
              Unless you think dismissal was a matter of right.

              Which is begging the question.

          2. Filing appeals and petitions for rehearings drags it out….

            1. Nope. That timeline is all on the DC Circuit to decide; it was not waiting for a petition or any other action to decide or deny en banc.

              1. Again, you’ve missed what Sullivan’s planned schedule was in the absence of a mandamus decision.

                At least a 10 week delay, before the initial hearing.

                1. 1) Why would that matter since that schedule has been mooted?

                  2) That’s a pretty normal timeline though?

                  1. “a pretty normal timeline though”

                    For a hearing for a non-contested motion to dismiss? 10 weeks? Where is that normal?

                  2. That’s a pretty normal timeline though?

                    Hard to say. It might be tricky to scrape up enough of a sample size of cases where the judge refused to grant an uncontested motion to dismiss.

                    1. What about a sample size of just uncontested motions. How long do those generally take for a judge to decide on?

                    2. Yeah, I was just trying to gently point out the lunacy of his question.

                      In my experience, much more than a couple of days is fair game for a polite call to the clerk, which usually gets things rolling. Since, you know, judges usually LIKE to clear cases off their dockets.

                    3. Pointing out this is rare does not mitigate towards it being swiftly considered.

                      If you think uncontested should mean no consideration at all, then you’re just begging the question. Again.

                    4. In my experience, much more than a couple of days is fair game for a polite call to the clerk, which usually gets things rolling. Since, you know, judges usually LIKE to clear cases off their dockets.

                      Do tell us about this “experience.” If you call up a federal judge’s clerk because you didn’t get a ruling on a motion in “a couple of days,” you’ll be lucky if you get a ruling in a couple of months.

                    5. Do tell us about this “experience.”

                      Just did.

                      If you call up a federal judge’s clerk because you didn’t get a ruling on a motion in “a couple of days,” you’ll be lucky if you get a ruling in a couple of months.

                      It usually helps if you’re not a dickhead about it. Just a thought.

                    6. The only one I can think of was the Money Selfie case, where PETA gave a sweetheart settlement offer after the appeal hearing in the hopes that they wouldn’t get binding precedent against them.

                    7. “It usually helps if you’re not a dickhead about it. Just a thought.”

                      Now we know why David’s cases sit so long on the judge’s docket.

                  3. Why would that matter since that schedule has been mooted?

                    How was it mooted ? What prevented Judge Sullivan from proceeding with his proposed hearings ?

                    The mandamus petition is, so far as I understand – which may of course be wrong – an entirely separate proceeding. Even the ruling by the CoA panel did not moot Sullivan’s schedule since it never became final.

                    He’s had 12 weeks to hold whatever hearings he wants, and to rule. He has chosen not to do so.

          3. This isn’t entirely accurate.

            Keep in mind, Sullivan scheduled the INITIAL Rule 48a Dismissal hearing for Mid-July. This was for a dismissal requested in early May. So, Sullivan was already going to drag it out for two and a half months.

            This should’ve been a fast dismissal hearing that could’ve been done in a week. Instead, Sullivan planned to drag it out at least 10 weeks. The mandamus decision came back much quicker.

            1. Again: that’s not dragging it out. That’s expediting it.

              1. Should’ve been a straight forward dismissal. Just like it was last time, in the Ted Steven’s case.

                Prosecution wants to dismiss charges. Defense agrees.

                Took Sullivan all of a week then.

                Taking 10 weeks to even hear about it? That’s dragging it out.

                1. Again: you beg the question.

                  Yes, it’s very slow if it must be a dismissal.

                  But you don’t get to assume that.

                  But that’s your only argument.

                  So you’re not really debating, you’re just yelling.

                  1. Yes, it must be a dismissal.

                    What’s Sullivan going to do? Continue the prosecution of Flynn himself? Appoint himself both judge AND prosecution?

                    1. Continue what prosecution? Flynn already pleaded guilty. All that’s left, if the case isn’t dismissed, is for Sullivan to sentence Flynn.

        2. Sullivan isn’t dragging anything out. Sullivan already scheduled a hearing on the government’s motion. Then Flynn short circuited that by running to the DC Circuit with a ridiculous mandamus petition to prevent the hearing from being held.

          1. Except David, Sullivan didn’t schedule the hearing until mid-July, for a motion to dismiss in early May. That’s dragging it out at least another 10 weeks for what should be a simple hearing to dismiss.

            1. for what should be a simple hearing to dismiss.

              Oh, it’s simple? Why didn’t you say so? If you had told the court that the motion was simple, then the court could have just ruled without any effort at all!

              There’s a scene in My Cousin Vinny in which the judge is trying to get Joe Pesci to enter a plea on behalf of the defendants. Joe Pesci keeps trying to argue that his clients didn’t do it. Finally the judge loses patience:

              It appears to me that you want to skip the arraignment process, go directly to trial, skip that and get a dismissal. I’m not about to revamp the entire judicial process because you find yourself in the unique position of defending clients who say they ‘didn’t do it’.

              That’s you here.

              1. Yes, it’s simple.

                It’s an uncontested motion to dismiss. Both parties, the prosecution and defense agree.

                A judge rules on disputes. There’s no dispute.

              2. ‘How do your clients plead,” featuring Vincent LaGuardia Gambini and Judge Chamberlain Haller.

                1. Negotiation,” featuring Vincent LaGuardia Gambini and J.T.

            2. You don’t get to assume Sullivan is in the wrong to then get him on other stuff.

              That’s begging the question, and you’re soaking in it.

              1. Look at you move those bars.

                First “Sullivan’s not responsible for the delay”

                But when faced with the evidence that unless Flynn got a mandamus decision, there would have been at least a 10 week delay due to Sullivan…

                You suddenly move those bars.

                1. Your argument that he’s responsible for the delay is that he should have dismissed the charges.

                  That’s not yet decided, so you’re begging the question.

          2. How, as a matter of law, did the mandamus petition prevent Sullivan holding his hearings ?

          3. Overlooked in your defense of Sullivans scheduled hearing is Sullivan’s attempt to take on the role of prosecutor, probing Flynn’s “lying” in pleading guilty instead of probing the DOJ and FBI corruption in the prosecution which at this point is well aware of.

            I agree that the 3 judge panel screwed up the procedural issues,

            1. Courts have the inherent power to punish contempt.

              And of course there is no “DOJ and FBI corruption in the prosecution.” Note that even Barr didn’t make such a claim when he moved to dismiss the case.

          4. He sure is. He shouldn’t be scheduling a hearing. The PROPER thing to do is just dismiss. Problem over.

        3. He waived that right when he pleaded guilty.

    2. “IIRC, the government’s motion to dismiss was filed about 12 weeks ago. That’s a lot of opportunity to rule.”

      It’s been before the DC Circuit for ten of those twelve weeks.

      1. Strictly no. Flynn’s petition for mandamus has been before the CoA for ten weeks. The DoJ’s motion to dismiss has remained before the District Court and nothing has happened at the CoA to prevent the DC ruling on the motion to dismiss during those 12 weeks.

        1. A hearing will be held. Had Powell it jumped the gun the hearing would have already been held. Bad lawyering in her part.

      2. There is nothing preventing Sullivan from granting the action asked for in the mandamus petition, thereby mooting the need for a writ.

        1. That begs the question before the DC Circuit, though.

          1. Not really, Sullivan can rule at anytime. He just wants to do things other than rule such as appoint amicus and hold additional hearings. Those are the questions at mandamus, basically the question is whether he has absolute control as to the speed of progression and manner of ruling on the case, or if in the face of an uncontested motion for dismissal with prejudice there is some constraints on his discretion.

    3. IIRC, the government’s motion to dismiss was filed about 12 weeks ago. That’s a lot of opportunity to rule.

      It’s not. Do you know how many substantive motions are decided that quickly?

      Flynn plainly has no other remedy but mandamus at the moment.

      Remedy for what? The judge not having yet decided the government’s motion?

      At some stage in the next few years, maybe, Judge Sullivan may hold a hearing, maybe,

      Judge Sullivan scheduled the hearing for several weeks ago. It’d have been held already if it weren’t for Powell’s shenanigans.

      But until he finally reaches a ruling, what other remedy does Flynn have ?

      The same remedy any other litigant has: to wait for the judge’s decision.

      1. Judge Sullivan scheduled the hearing for several weeks ago. It’d have been held already if it weren’t for Powell’s shenanigans.

        So you keep saying. How did Powell’s shenanigans prevent Sullivan from holding his hearings and making his ruling ?

        The same remedy any other litigant has: to wait for the judge’s decision.

        So, returning to my original question, is there any limit on the wait ?
        If so, what’s the legal rule or principle that determines whether the Judge has had long enough ?

        1. So you keep saying. How did Powell’s shenanigans prevent Sullivan from holding his hearings and making his ruling ?

          The hearing was scheduled for July 16. The circuit court issued its decision on June 24. You think that Sullivan was going to hold a hearing on the motion after the circuit court decided that the motion had to be granted?

          1. You think that Sullivan was going to hold a hearing on the motion after the circuit court decided that the motion had to be granted?

            Why not? It’s not like he’s trying to delay the proceeding, right? And he’s clearly convinced he’s on firm footing or he wouldn’t have filed for en banc review of a mandamus order (you wanna show me the plethora of cases where a federal judge does that?).

          2. So if I understand you rightly, the answer is that as a matter of law nothing prevented Sullivan holding hs hearing on the date he had set it for. All this talk of mooting is just handwaving.

    4. The establishment wants to keep Flynn muzzled until after the 2020 election. He can’t talk freely until the case is dismissed. The en banc court will send it back to the trial court. Is there any chance that the en banc ruling could be appealed to the Supreme Court? How long would that take? Then the case gets briefed and argued to the Supreme Court.
      If Trump loses the election, he will probably pardon Flynn before he leaves office. If Trump wins reelection, he will probably hold off on a pardon since a dismissal will be more beneficial for Flynn.

      1. The establishment wants to keep Flynn muzzled until after the 2020 election.

        Who is this “establishment” and why do they want this?

        He can’t talk freely until the case is dismissed.

        Because…?

        Is there any chance that the en banc ruling could be appealed to the Supreme Court?

        Yes. That would up to Flynn’s lawyer.

        Then the case gets briefed and argued to the Supreme Court.

        The Supreme Court is in no ways going to hear such an appeal.

      2. The Grand Moff Tarkin : The establishment wants to keep Flynn muzzled until after the 2020 election

        Given Flynn is now peddling QAnon gibberish, I can assure you no one wants to keep him muzzled. There’s too much entertainment value in watching the freak show that is Michael Thomas Flynn.

        How did this sleazy disaster ever get named National Security Advisor? Granted, we didn’t then know he attended multiple meetings with Turkish officials to discuss kidnapping a person residing in the U.S. The second meeting was to discuss Flynn’s fee, and the numbers got as high as 15 million. The former general may be a whore, but he sure isn’t a cheap one.

        But even when Trump picked him, it was already established Flynn had sold himself (with enthusiasm) to strong-arm rulers around the world and then flouted every law on registering as a foreign agent or disclosing payments from foreign governments. The Saudis wanted relaxed regulations on importing sensitive nuclear technology; Flynn was their boy. Turkey wanted a free hand to deal with the Kurds; Flynn did his best. Putin wanted to buy a U.S. general to sit by his side at a major event; 40K got the job done.

        So this walking-ethical-disaster gets his Trump appointment, and the first thing he does is conduct negotiations with Russia (a former client) and then lie about the talks to White House officials – lie about the talks to the Vice President – lie about the talks to the FBI.

        Geez, you right-types sure know how to pick your “martyrs”…..

  2. 1: If the circuit reverses, can there be an appeal on that to SCOTUS?

    2: Can counsel raise mental competency issues about a judge?

    1. 3. Can the Senate subpoena the full public and private e-mail correspondence of Judge Sullivan and his aides?

      1. Fishing for what exactly?

        1. Evidence of corruption.

          1. So just fishing.

            1. Sullivan has ruled over a very political case before (Ted Stevens), which ALSO had an overzealous prosecution, which ALSO had evidence suppressed and ALSO had the case go on until after the election, likely swaying the election.

              And here it is….again.

              Sullivan’s behavior in this case is VERY odd, and scrutiny is needed.

              1. So, just fishing.

                1. Wait–what? Congressional subpoenas that are simply fishing expeditions are improper? That wasn’t what the House Democrats argued in front of the Supreme Court. As long as a subpoena bears some relationship to metaphysically conceivable legislation, it’s valid. Or have the rules changed?

                  1. Yeah – there was a Supreme Court decision that came after that argument.

        1. Why not? For “Judicial Oversight purposes”

          1. How much experience — measured in minutes — do you have participating in litigation in federal court? You act as if you have plenty, you sound as if you have none . . . which is it, Armchair Lawyer?

            I expect to learn that Mr. Nieporent assembles more relevant experience in the average month than you have collected in your lifetime.

            But please keep yapping daftly about this . . . it is precisely the type of right-wing nonsense the Volokh Conspiracy aims to lather among its fans.

      2. 3. Can the Senate subpoena the full public and private e-mail correspondence of Judge Sullivan and his aides?

        Of course. The question you need to ask is whether the senate could enforce this subpoena.

  3. 3: Is the goal to force Trump to pardon him so as to preclude his civil suits?

  4. Is Flynn entitled, as of right, to a dismissal of the charges upon a motion for dismissal filed by the prosecution? If he is, and the entering of a dismissal by the trial judge is merely a ministerial act, then I would think that a mandamus would be an appropriate remedy. If the decision to grant a dismissal upon a motion by the prosecution to dismiss lies within the discretionary power of the trial judge, then a mandamus would not be appropriate.

    My understanding of the panel decision, after an albeit brief read, is that the majority concluded that the prosecutor is entitled to an order dismissing the case upon filing a motion to dismiss. If that claim is correct, and the entry of an order dismissing the case is a mere ministerial act, and not a judicial act, then the panel majority would seem to be correct.

    A mandamus requires a lower court judge to do that which he is required to do by law, but which he has not done. It ought not be awarded when the lower court judge has exercised discretion in an area that allows for judicial discretion. In the latter case, an appeal would seem to be the appropriate remedy. If the law clearly states that, upon a motion to dismiss by the prosecution, the trial judge must grant such a dismissal, and the trial judge has not granted the dismissal, then why would a mandamus not be appropriate?

    1. “If the law clearly states that, upon a motion to dismiss by the prosecution, the trial judge must grant such a dismissal, and the trial judge has not granted the dismissal, then why would a mandamus not be appropriate?”

      Well, because the law doesn’t clearly state that. Here’s a previous article from this blog on the topic:

      https://reason.com/2020/05/17/why-do-rule-48a-dismissals-require-leave-of-court/

    2. After looking through the annotated version of Rule 48, I think the evidence points in favor of the trial judge exercising discretion in the filing of a motion to dismiss. The fact that “by leave of court” was added to the rule under a previous amendment seems to clearly indicate a switch from a non-discretionary decision to a discretionary decision. The very fact that discretion is permitted would then rule out relief by mandamus. Rather, the trial judge ought to be allowed to make a final ruling on the motion, and the losing party can seek relief through appeal.

      If trial judges should not be permitted to exercise any discretion on a Rule 48 motion, then the solution would be to amend Rule 48 by removing, “by leave of court.”

      1. This seems right to me.

        1. This sounds right logically, but has its own problems.

          Prosecutor, as Agent for the Executive, asks to drop the case.
          Judge, as Agent for the Judiciary, says No.
          In Court the next day: no executive branch employees are present, since they’re out of the case.
          Option 1) Judge issues an arrest warrant for (whoever he likes) for contempt for not showing up, but is told that no Marshal will ever serve it.
          Option 2) Defendent eventually sues the judge under 18 USC 1983 for personally violating his speedy trial rights, and when his claim is thrown out for judicial immunity a large segment of the populace remembers that judges are lawyers too, and the first thing we do when the revolution comes is….

          And more silly outcomes. Yes, logically the rule implies discretion, but then what? You must enter this boxing match against Mike Tyson – sure, maybe you can make me get in the ring (by dropping me from above), but there’s not much you can do to make me not throw the fight – not that I’d have a choice, I don’t think you could tell the difference between an amateur throwing a fight or really trying to fight against a heavyweight.

          Same with a prosecutor, unless we’re going to an inquisitorial system now. Good advantages there, especially if you’re the Grand Inquisitor.

          1. Option 2) Defendent eventually sues the judge under 18 USC 1983 for personally violating his speedy trial rights, and when his claim is thrown out for judicial immunity a large segment of the populace remembers that judges are lawyers too, and the first thing we do when the revolution comes is….

            § 1983 applies to state, not federal, government.

            And you don’t have any “speedy trial rights” when you plead guilty.

            1. So if a prosecutor withholds evidence and somebody pleads guilty not knowing the withheld evidence, judges routinely refuse to approve a dismissal when both sides request it?

              1. “So” is an odd choice of word there, since nothing you said relates to what I said.

                As for your hypothetical, other than the Stevens prosecution I can’t think of such a situation occurring, so I don’t think I can talk about what “routinely” happens. It certainly didn’t happen here.

    3. Is Flynn entitled, as of right, to a dismissal of the charges upon a motion for dismissal filed by the prosecution? If he is, and the entering of a dismissal by the trial judge is merely a ministerial act, then I would think that a mandamus would be an appropriate remedy. If the decision to grant a dismissal upon a motion by the prosecution to dismiss lies within the discretionary power of the trial judge, then a mandamus would not be appropriate.

      No. Mandamus requires both an indisputable right to relief — something not present here — and no other way to secure that relief — something absolutely not present here.

      1. The problem, that really triggered the Petition for Mandamus, was Sullivan appointing an amicus to argue against the dismissal, and that amicus has indicated that he intends to investigate the DOJ decision making that led to the motion to dismiss (but conveniently not the original prosecution).

        1. The amicus did not indicate any such thing, and the amicus has no power or ability to investigate anything. Maybe you mean that he suggested that the court should look into it.

      2. The indisputable matter of right was not to have a third party (the retired judge amicus) intervene and prosecute the case against Flynn.

  5. This is a bit of an odd question.

    On what rights did Sullivan have to appeal to an En Banc hearing?

    Sullivan is not a defendant in this suit. He’s not a prosecutor either. So, what rights did he have to institute an appeal for an En Banc hearing?

    1. By the terms of the writ, for one thing.

      1. How so? Why did the judge have the right to appeal a decision?

        1. My recollection is that a petition for writ of mandamus makes the judge the respondent on that issue, so he has the right to appeal an adverse ruling.

          1. But a writ of mandamus isn’t an adverse ruling. It’s not considered “nice,” but it’s not adverse to any cognizable legal interest that anyone has – that’s the whole point. If you had a legal interest in doing the opposite of what the writ is telling you to do you wouldn’t be getting it in the first instance.

    2. DC Circuit can do it sua sponte so standing doesn’t really matter.

      1. There was a petition for a rehearing en banc

        What rights does the judge have to make such a petition? He is neither the defendant, nor the prosecution.

        1. Sullivan does not need a right to ask the Court for a thing it doesn’t require his petition to give

          The Gummy Bears could petition the circuit and it’d be fine.

        2. No, he’s the subject of a mandamus petition.

          But as Sarcastro tried to explain and you ignored, it doesn’t matter. Let’s say that Sullivan has no right whatsoever to make the petition: the court of appeals can sua sponte take it up en banc anyway.

          1. Doesn’t making such a petition place him in an adversarial role to the defendant, rather than a neutral party?

            1. The defendant filing a mandamus petition against him placed him in an adversarial role to the defendant, but only with respect to the issue of mandamus.

              1. So, he’s in an adversarial role now, rather than a neutral party.

                Furthermore a petition to get it reversed increases the adversarial role.

                It’s time for Sullivan to recuse himself.

                1. You should take your talent at jumping through hoops and turn it into an Olympic sport.

                  You’re an armchair lawyer with falling-down-drunk logical conclusions.

                2. Ima gonna file a mandamus all the time, and just get my judge recused as adversarial over and over again!

                  1. Ima gonna file a mandamus all the time, and just get my judge recused as adversarial over and over again!

                    For your clever little plot to work, the appellate court would have to grant your motion for mandamus, over and over again. And then your judge would have to refuse to obey the mandamus order and move for review of it, over and over again.

                    You’re just not very good at this, are you?

                    1. So it’s only adversarial once the judge appeals?

                      Can you see the issue with the incentives your system would create?

                    2. Can you see the issue with the incentives your system would create?

                      There’s no potential issue to see until you show me the enormous universe of cases where judges move for en banc reconsideration of mandamus orders under the current system of incentives. Or even a few representative ones. I’ll wait.

                    3. So now it’s not appeals of mandamus generally, it’s en banc specifically.
                      Which doesn’t require a motion.

                      Seems legit. And not you constantly retreating your thesis until you are left with this overtailored absurdity.

                      Judges have the right to appeal their mandamus. Because appeals are a part of how the justice system operates. In your partisan slather, you want to eliminate that.

                    4. So now it’s not appeals of mandamus generally, it’s en banc specifically.

                      Oh, don’t limit yourself so, Sparky — let’s see that big whopping list of judges challenging mandamus orders in any form your little heart desires.

                      Because I’m supremely confident you’ve rounded up a mountain of them and are just trying to clarify exactly which list you should provide, and not doing your little lilypad routine.

                    5. Sarcastic – isn’t an appeal of mandamus necessarily an en banc appeal? There’s no other way to appeal a writ of mandamus, right?

                      District Court Judge fails to do something she must do
                      You file a writ of mandamus with the appellate court
                      Appellate court denies the writ
                      You appeal en banc
                      En banc rehears
                      En banc grants the writ
                      District court does whatever she was supposed to do originally

                      Right? So the only appeal (ignoring scotus) is an en banc appeal?
                      Were you just conflating regular ruling—>appeal—>en banc patterns, or is there something I’m not thinking of?

                    6. En banc isn’t an appeal.

                      SCOTUS is the appeal.

                      LoB, is your argument that because this is rare it must be adversarial? Because it looks to me like you’re finding some collateral demand to try and declare victory when you’re outmatched.

                    7. Sarc-to-English translation: “No, I couldn’t find a single case other than this one, so I’m going to lamely try to mischaracterize the argument again to try to distract from that.

              2. Seems to me the Judge appointing someone to oppose the joint motion put the Judge in an advesarial position vs the defendant.

                1. No. The judge appointed an amicus to make arguments because neither side was making them. This. Is. Routine. For example, in the CFPB case from a few weeks ago — Seila Law LLC v. Consumer Financial Protection Bureau — the administration was not willing to defend the CFPB, so SCOTUS appointed Paul Clement to make arguments as amicus.

                  1. Can you cite any othe case where the government moved to dismiss a case and a judge either denied the motion or appointed someone to argue against it?

                    1. Be more specific. What he needs to find is another CRIMINAL case of the judge appointing amici. Court appointed amici in Civil cases are not uncommon. The problem here is that the two parties to a CRIMINAL case are the sovereign (US) and the defendant. They agree here on dismissal being appropriate. Sullivan here is introducing a third party (the amicus) known to be adverse to the defendant, by his newspaper op ed, into the case.

                      Because that violates hundreds of years of Anglo-American jurisprudence, as well as The defendant’s Due Process (and Equal Protection, via DP) rights, David is unlikely to find a CRIMINAL case supporting appointing amici in this situation.

                    2. Your requirements are so narrow it’s clear you’re not arguing from principles, but from a particular situation and a desired outcome.

                      Which means it’s not an argument at all.

                    3. Bruce Hayden’s requirement is simply that you find a precedent for the appointment of an amicus by a District Court in a CRIMINAL case.

                      The federal procedural rules explicitly allow for amici before the District Court in CIVIL cases, and for amici in CIVIL or CRIMINAL cases in Appeal Courts, but make no mention of allowing amici before the District Court in CRIMINAL cases, it’s perfectly reasonable to doubt that the District Court has any power to allow amici in CRIMINAL cases.

                      Consequently it’s perfectly reasonable to ask for precedents for what on the face of it, is something the District Court has no power to do.

                  2. As noted – it is not routine, but completely novel, in a CRIMINAL case at the trial level, to appoint an amicus, and esp over the objections of both parties. Every case cited has been either a civil case, or an appeals case. Including yours.

      2. DC Circuit can do it sua sponte so standing doesn’t really matter.

        Huh ? Are you saying that even if the DC Circuit did not as a matter of fact do it sua sponte, and even if Sullivan lacks standing, they can still hear the appeal on the basis of a purely hypothetical sua sponte ? Sounds very unlikely, but the law is full of unexpected reefs.

        That sounds seriously odd.

        1. The DC Circuit did do it sua sponte. Look at their order today: they did not grant Sullivan’s petition. They just announced they were rehearing the panel’s decision en banc.

    3. Absolutely, no right at all, he is not a litigant.

  6. Harry Reid’s nuking of the filibuster finally pays off!

    1. Pretty small pay off.

  7. Professor Cassell mischaracterizes the main thing Flynn wanted remedied. He did ask for a new judge, and for dismissal, but the main thing was a decision from Judge Sullivan rather than further proceedings (amici, hearings, etc.). He was properly granted mandamus for two reasons: (a) Judge Sullivan had nothing in the record or even the situation to justify delaying his decision, and (b) Judge Sullivan had nothing to justify denying the motion to dismiss. Thus, it would even have been enough for the 3-judge panel to order Sullivan to cut out his novel dilatory tactics and make a decision one way or the other. Otherwise, Judge Sullivan can keep Flynn on the hook until he retires from the bench.

  8. At least the en banc decision allows the DC Circuit to correct the panel’s mistake of not removing Judge Sullivan from the case. I thought the panel was correct at the time, but Sullivan’s en banc petition adds enough evidence of a vindinctive desire to get Flynn at all costs that removal is now clearly appropriate.

    1. You’re delusional.

      1. No, he’s right. The judge is not a litigant. He has no standing. He was only able to submit a response to the initial petition due to leave of the appellate court.

        1. Standing isn’t a thing in this proceeding.

          1. Standing is a thing in every proceeding Clarence Darrow.

    2. It’s frightening that ‘logic’ like yours somehow managed to persist into adulthood. Seems that there are battles that public education just can’t win.

      1. People like you respond with insults rather than reasoning. That says something. You should be embarassed.

      2. It’s also frightening that those (that means you Jason) with no understanding of appellate procedure or the constitution persist in offering their facile opinions.

        1. Tell us about your experience in appellate procedure.

          1. I’m rather amused you have the audacity to make any more comments after noting that article III standing isn’t a thing in this proceeding.

            1. So you don’t know what you’re talking about.

              But you’re going to try and asshole your way through.

              Good luck with that.

              1. Love to hear you in court defend a case when your client has no standing, “but your honor, it isn’t a thing here”

                1. Going en banc is not a lawsuit; stop being foolish.

        2. Let’s hear your credentials, since you insist upon presuming that I have none.

          Then let us all revel in whatever argument you put forth in proving that Sullivan is clearly vindictive, backed by your illustrious experience in appellate and Constitutional law.

          Please continue.

          1. Don’t know what your “credentials” are. Don’t care. Just pointing out you have no understanding of appellate procedure or constitutional law based on your ridiculous comments.

            1. You have no evidence to substantiate such a claim, and you contribute nothing whatsoever to even pretend that you’re an authority while criticizing the supposed lack of authority of others.

              You’re an unfunny joke. How pitiful.

              1. “unfunny joke”? Just to show my good faith, let me introduce you to a new word “oxymoron.” Look it up and impress all your resistance friends on twitter.

          2. Then let us all revel in whatever argument you put forth in proving that Sullivan is clearly vindictive, backed by your illustrious experience in appellate and Constitutional law.

            First federal judge ever to seek review of a mandamus order for him to grant an uncontested dismissal motion.

            Your turn.

  9. I suspect the Supreme Court is going to finish the work on this case. Probably per curium order directing dismissal. And really the tragedy here is the rule of law. The case should have never been brought. The prosecutorial tactics to get charges were disgusting. The dismissal should have been prompt. The politics should have never entered. And now it is a big giant mess that the Supreme Court is going to have to sort out because if it doesn’t there will be too many unanswered questions hanging on.

    1. Contrary to what Trumpkins (including Bill Barr) think, there is no “meat and potatoes” vs. “esoteric” (read: white politically connected defendants) crime. Flynn was treated like any other defendant.

      And the Supreme Court isn’t going anywhere near this.

      1. Examples of defendants in a criminal case where the prosecution and defense agree to a dismissal and the judge refuses to do so and, in fact, mentions adding MORE charges? Any at all?

        1. That doesn’t make Flynn extraordinary, it makes the DoJ’s about face extraordinary.

          1. Also, once again note that Sullivan did not refuse to dismiss. Trumpkins keep lying about this. Sullivan scheduled a hearing to decide whether to grant the motion to dismiss.

            1. 12 weeks no ruling? That at the very least is denying the accused a speedy trial.

              1. That’s the DC Circuit’s timeline, not him.

              2. Sigh. Once again: there is no trial. He pleaded guilty. Speedy trial has nothing to do with anything.

          2. The government often moves to dismiss charges for one reason or another.

            The difference here is that they did provide justification for dropping the criminal charge to the court, which they rarely do. The DOJ pointed out that that they had recently discovered, from recently declassified and released evidence, that the charges should never have been filed. The FBI agents who interviewed Flynn had not believed that he had been lying at the time he was interviewed. There was no reason, at that time of the interview, to believe that he had been a Russian agent or collaborating with them, since the DC Field Office had recently completed their Crossfire Razor investigation, and had filed the paperwork to close it. Moreover, whatever he said to the two FBI agents couldn’t have been material because they knew what Flynn had said to the Russian Ambassador, because they had seen the transcripts of the call, and Flynn had not.
            In the brief by the SG and DOJ.

            What the DOJ (Solicitor General and US Attorney together) strongly suggested, in their brief, but did not state outright, was that Brandon Van Grack and the other Mueller prosecutors violated DOJ regulations, as well as ethical rules, by filing the case in the first place. Instead, the prosecutors were removed from the case, and apparently Van Grack from all of his cases. Knowing what the DOJ knows now (and Van Grack at least, very likely knew all along) the case should never have been filed.

            Moreover, the SG and USA, in their brief, pointed out that because there was no reason to believe that there was probable cause to believe two of the required elements (Lying and Materiality) of the §1001 charge against Flynn, they were ethically, legally, and morally required to dismiss the charge.

            1. The difference is this was after a guilty plea.

      2. If Flynn were treated like any other defendent, why did the FBI violate DoJ rules by not requesting the interview through the Office of White House Counsel.
        If Flynn were treated like any other defendent, why was he not allowed to see the transcript of the phone call? That is how the FBI treats other defendents.
        There’s more but this is enough to make the point.

        1. They didn’t violate DoJ rules. There is no such DoJ rule.

          Sometimes the FBI will show evidence to a suspect, sometimes they won’t.

      3. Respectfully disagree. The Solicitor General, often called the “Tenth Justice”, was the first signed DOJ official on their brief. He was joined by two of his four top assistants. The Supreme Court regularly defers to the SG’s wishes in hearing cases. The SG almost never intervenes at this level. He did, personally, in this case. I think that was a signal to the appeals court that he (and his boss, the AG) will request that the DOJ will request that the Supreme Court year the case, if they lose at the appeals level, based on the attempted usurpation of Executive Branch power by the Judiciary.

  10. Like the Judge that ruled against President Trumps travel ban, and said he would have ruled different, if it were a different President, Sullivan is applying the law according to who is being tried.
    I understand Sullivan is not bound by law to issue the dismissal, as long as he has cause.
    Sullivan lacks cause. That would required the dismissal. He is refusing to do what the law requires.

    1. Sullivan hasn’t refused to do anything.

      1. Try reading my post with comprehension, they’re small words.

        1. Are you a lawyer, iowantwo, or an unqualified partisan clinger offering right-wing fever dreams steeped in belligerent ignorance?

          1. Rev, Still batting 1000, content free personal attacks. Never dissapoints

  11. This is not a case that warrants appellate court intervention to provide “extraordinary” mandamus relief.

    Sure it is, now that we’ve all seen evidence proving that the prosecution was malicious from the word go.

    1. We’ve seen no such evidence, and that would not justify mandamus anyway.

      1. See above.
        – There was no lying. The two agents who interviewed Flynn at the WH did not detect any lying, or evasions.
        – There was no materiality because they knew what Flynn had said to the Russian Ambassador, having seen the transcripts, while Flynn had not.
        – Moreover, there Was no longer any evidence known to the FBI at the time that would have justified investigating Flynn for collaboration with the Russians. The DC Field Office had closed their investigation of Flynn, having found nothing. Again, no legitimate investigation meant no Materiality.

        Let me suggest that if you aren’t going to keep up on the Spygate revelations, at least read the brief provided by the DOJ (signed by the Solicitor General and US Attorney) to support their motion to dismiss that points this all out.

        1. Bruce, this looks to me like classic lawyer tactics. Argue the law, when the facts are against you.

          Somehow on a libertarian site, a fair amount of lawyers are defending the government and very shady actions they have used to railroad an honored Military man.

          So hiding in the minutia of the law, ignoring the facts of a corrupt overreaching government agency.

        2. – There was no lying. The two agents who interviewed Flynn at the WH did not detect any lying, or evasions.

          They did not detect any indicia of lying. That just means he’s a good liar; it doesn’t mean his statements were true. They knew his statements were false.

          – There was no materiality because they knew what Flynn had said to the Russian Ambassador, having seen the transcripts, while Flynn had not.

          Completely irrelevant.

          – Moreover, there Was no longer any evidence known to the FBI at the time that would have justified investigating Flynn for collaboration with the Russians. The DC Field Office had closed their investigation of Flynn, having found nothing. Again, no legitimate investigation meant no Materiality.

          Wrong again. The investigation wasn’t closed. And that’s not what materiality means. Materiality has nothing to do with open or closed investigations, which are just FBI paperwork issues.

  12. The comments here show exactly what we’ve come to expect: deranged partisans embracing and defending abuse of authority by the FBI and by a judge. Obvious injustice and the harm it causes are tolerated and sometimes celebrated out of sheer partisan mean-spiritedness.

    1. Perhaps if Sullivan has to pay for his own legal fees, as Flynn does, the useless judge might see the harm being caused to Flynn.

    2. I was taught in high school, a long time ago, the justice system is weighted very heavy, in favor of the accused. That’s because, the power of government corrupts the souls of those that wield the power.
      In the Flynn case, documents reveal that corruption.
      We know the initial interview was not attached to any investigative matter.
      Documents show the persons conducting the interview found Flynn to be truthful.
      We know from documents the FBI intentionally violated DoJ rules requiring interviews of Administration officials must be requested through the Office of White House Counsel.
      We know through documents the FBI was discussing prior to the Flynn interview what prefered outcome was desired. Not a search for facts.
      Documents show much more government corruption.
      The question is, do we still want a justice system heavily weighted in favor of the accused?

  13. How is there still an Article III case or controversy? The government wants to dismiss. The defendant wants to dismiss. No one wants to move forward with the case. There is no excuse for Judge Sullivan’s failure to timely rule that he lacks jurisdiction to proceed with the case.

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