Administrative Law

A Loss for Flynn and a (Temporary?) Win for McGahn

Multiple significant opinions from the D.C. Circuit on Judge Griffith's last day.

|The Volokh Conspiracy |

The U.S. Court of Appeals for the D.C. Circuit usually releases opinions on Tuesday and Fridays. Today, however, was Judge Thomas Griffith's last day on the court before his retirement, so the court made an exception, releasing an en banc decision in which he participated, a divided panel opinion (in which he wrote the majority), and a revised panel opinion in which he participated.

The headline decision from the D.C. Circuit was the court's en banc opinion in In re: Michael Flynn, overturning the panel opinion granting Flynn's Emergency Petition for a Writ of Mandamus ordering dismissal of the criminal charges against him. With ten judges participating, the court issued a per curiam opinion denying the petition and rejecting Flynn's attempt to have the case assigned to a different district court judge.

The two judges in the majority for the panel decision—Judges Rao and Henderson—each wrote dissents (and joined each others dissents). Judge Rao, who wrote the initial panel decision, focused on the merits. Judge Henderson focused on the question of whether Judge Sullivan had disqualified himself and the case should be reassigned on remand.

Judge Griffith wrote a concurring opinion that is worth quoting.

In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge's real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt there will be some who will describe the court's decision today in such terms, but they would be mistaken.

This proceeding is not about the merits of the prosecution of General Flynn or the Government's decision to abandon that prosecution. Rather, this proceeding involves questions about the structure of the Judiciary and its relationship to the Executive Branch. There are two central problems in this case: defining the scope of the authority of the Judiciary to inquire into the exercise of a core function of the Executive and deciding how the relationship between the district court and our court shapes a challenge to that inquiry. Those questions are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree. See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). And that principled disagreement revisits a long-running debate about the relative powers of the Executive and Judicial Branches. Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic, see Judiciary Act of 1789, ch. 20, § 22, 1 Stat. 73, 84; 28 U.S.C. § 1291, and we are aware of no case in which a court of appeals has ordered a district judge to decide a pending motion in a particular way.

Moreover, as its counsel repeatedly stated at oral argument, the district court may well grant the Government's motion to dismiss the case against General Flynn. In fact, it would be highly unusual if it did not, given the Executive's constitutional prerogative to direct and control prosecutions and the district court's limited discretion under Rule 48(a), especially when the defendant supports the Government's motion. But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time.

Judge Griffith had the opinion for the court in Committee on the Judiciary v. Donald McGahn, IIin which the court concluded, 2-1, that the House of Representatives lacked a cause of action to sue to enforce a subpoena to former White House Counsel Don McGahn. This same panel had previously concluded that the House lacks standing to sue to enforce a subpoena, but that opinion was recently overturned by the full court, sitting en banc. Judge Henderson joined Judge Griffith's opinion—his last majority opinion on the court. Judge Rogers dissented. House Speaker Nancy Pelosi has already announced the House will seek en banc review of this decision.

In a final action, the court issued a revised version panel decision in which Judge Griffith participated granting Hillary Clinton's petition for a writ of mandamus in a lawsuit seeking the disclosure of her e-mails. I wrote about the initial opinion here.

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  1. Definitely quotable.

  2. Not a win for Flynn. But hardly a loss.

    They pretty much said “You don’t have case now, but if Sullivan doesn’t dismiss after his hearing you’ll have a case then”.

    1. A win for rule of law. That mandamus being sustained was ridiculous.

      1. I know. The courts and DOJ bending over to help someone under investigation…well, that’s just for Hillary Clinton and her mandamus petitions.

        1. It is unclear to me what you are talking about here.

            1. yep. At least most recently.

              There’s a much of other more historical items.

              1. Ah. You think my issue is that I don’t like Flynn, and so would condemn anything that went his way. Just like you seem to think anything that helps Hillary is evidence of bias towards her.

                That’s not my issue. I don’t much care about Flynn himself; guilty people get off all the time. I care about the perversion of procedures.

                1. No, I’m just annoyed at the double standard between Trump and Trump Campaign members and Hillary and Hillary campaign members going on, one that continues to go on.

                  1. Potential evidence of foreign involvement in presidential campaign.
                  a. Hillary’s campaign: FISA application squished. Hillary gets defensive briefing
                  b. Trump’s campaign. Multiple FISA applications granted (on manufactured evidence). No defensive briefing.

                  2. FBI interviews with suspects part 1.
                  a. Hillary’s campaign. FBI agents. “He lied his ass off”. Immunity granted. No charges filed.
                  b. Trump’s campaign. FBI agents. “No sign of lying”. Charges filed on non-material statements.

                  3. FBI interviews with suspects, part 2:
                  a. Hillary’s campaign. “Everything on the up and up. All your rights will read to you ahead of time. You can even have your lawyer in the room, even though she’s involved.”
                  b. Trump’s campaign. “Come in on a pretense, don’t read rights, make sure there’s no lawyer in the room”

                  4. FBI warrants.
                  a. Hillary’s campaign. “Take your time, there’s plenty of time to wipe your computer with classified information being held at home”
                  b. Trump’s campaign. “Dawn raid on the house, guns drawn”.

                  5. Mandamus petitions
                  a. Hillary: “You need to actually give a deposition? Judge is overreaching his authority? Mandamus granted”
                  b. Flynn: “Judge is overreaching is authority? bah… No mandamus”.

                  It’s continuous.

                  1. No idea what most of these are. What I could find were single sourced articles from like Gateway Pundit or Breitbart.

                    Also, you don’t actually get into procedure, just framing. Perfect for confirmation bias; not great for actually arguing substance.

                    1. Wait Sarcastr0….There was, or there was not, an FBI lawyer who just pled guilty to altering a document supporting a FISA warrant?

                      Leave aside the politics for a minute. If you have the FBI altering evidence here, in a high profile case like this, where else might that be happening? Because the IG random sampling of ~30 FBI cases where FISA warrants were granted was appalling. I don’t know about you, but that frankly scares the hell out of me as an ordinary citizen.

                    2. There was, Commenter. But there is zero evidence it was for partisan reasons.

                      I agree with you, though. I don’t like FISA at all. I think it should end. I think it’s consistently shown it’s procedures are shoddy, and it’s internal controls nonexistent.
                      I’m aware that the previous system was no controls at all, but this may be worse since it gives the patina of legitimacy to privacy violations without actually lending any legitimacy.

                    3. “No idea of what most of these are”

                      If you don’t know, you’re not in a position to make a judgement about the double standard being utilized. There’s about 6 years worth of double standards here. The OIG’s report on the mid-year exam is enlightening, especially the details and the “limitations” the investigators faced.

                    4. If you don’t know, you’re not in a position to make a judgement about the double standard being utilized.

                      No, it’s more an illustration of how out there your sources are.

                    5. “How out there your sources are”

                      Because Office of the Inspector General reports are “out there”. Right.

                      I read news from both sides of the political spectrum Sarcastro, as well as primary materials when further interest is justified.

                      If you’re just reading the NYT and other liberal rags, then you’re not going to know the full picture. Just one side.

                    6. Yes, the lack of your evidence appearing papers without a partisan agenda just shows how deep the conspiracy goes.

                      LOL if you think I just read the NYT. But I tend to be suspicious when partisan press prints something I cannot verify elsewhere.

                    7. “But there is zero evidence it was for partisan reasons.”

                      You sound like the IG: He could prove that the people involved were politically hostile to Trump, he could prove they undertook improper actions that hurt Trump, but he couldn’t prove the latter was due to the former, it could have just been coincidence.

                      IOW, nobody confessed in writing.

                    8. Sarcastro,

                      I find your continued ignorance tedious, especially considering the part where I directly state that some of these items come from direct official US government Office of the Inspector General reports, and you claim you can’t verify them. It’s the sign of someone who cannot comment honestly.

                      Toodles.

                    9. Sacastro is the Baghdad CNN of this comment section.

                    10. I sound like the IG because I’m not the telepath Brett is.

                      AL, on the other hand, thinks I’m denying what the IG is clearly saying.

                      And Sam is just working hard to ignore whatever I’m saying.

                      It’s telling that in a post about Flynn’s mandamus being turned down as per judicial procedure, all of you turned instead to your right-wing conspiracy circus about Hillary.

                    11. S,

                      The real telling part is that the post is also about Hillary’s mandamus succeeding.

                      You would know that if you weren’t such an ignorant reactionary.

                    12. Sarcastro : “But there is zero evidence it was for partisan reasons.”

                      Brett : You sound like the IG: He could prove that the people involved were politically hostile to Trump, he could prove they undertook improper actions that hurt Trump, but he couldn’t prove the latter was due to the former, it could have just been coincidence.

                      You are being a little unkind to the IG. What he actually wrote was that there was no “documentary or testimonial evidence” that the FISA errors and omissions were caused by the political bias of the investigators. But in Senate evidence he expressly denied that he had concluded that there was no bias. See the exchange with Sen Hawley here:

                      https://www.breitbart.com/politics/2019/12/18/ig-horowitz-tells-senate-i-did-not-say-no-political-bias-in-fbi-investigation/

                      The Clinesmith thing is similar – lefties like Sarcastro are pretending that documentary and testimonial evidence is the only kind of evidence you can have. But that is obviously not the case. There’s also circumstantial evidence – including the fact that Clinesmith was texting “Vive la resistance.”

                    13. What I could find were single sourced articles from like Gateway Pundit or Breitbart.

                      I think you meant “what I could find in a minute or two” (at most, even if you really were sitting here feverishly refreshing the thread). You posted this exactly 16 minutes after AL’s post that contained 10 different factual scenarios.

                      As you love to say these days, this is clearly an unserious response.

                    14. The issues around the FISA warrant are hardly evidence of a partisan bias. The IG found “widespread” problems with nearly all of the FISA warrants in a follow-up investigation. The FISA process is a huge mess and should probably just be eliminated, but the fact that the FBI didn’t have very good evidence to substantiate the FISA warrant against Page is par for the course, not evidence of a partisan witchhunt.

                    15. “What he actually wrote was that there was no “documentary or testimonial evidence” that the FISA errors and omissions were caused by the political bias of the investigators. ”

                      That’s what I said: Nobody confessed in writing.

                      ““But there is zero evidence it was for partisan reasons.”” was a quote from YOU. You’re insisting that the only evidence that counts is a written confession, the IG’s “documentary or testimonial evidence”; Only, unlike him, you seem to take that absence as conclusive, not merely enough that everybody gets off Scot free.

                    16. “The issues around the FISA warrant are hardly evidence of a partisan bias.”

                      As a general matter, incompetence works both for and against a person’s interests. Bias is demonstrated by the mistakes all going the same way.

                      But in this case, we’re not talking “mistakes”, we have outright criminal abuses, such as lying to the FISA court.

                      I’ll grant your point that the FISA process is rife with that. What was unusual here isn’t that they cut corners to get the warrant. They do that all the time, where they think they’ve got a case, but not enough evidence they do.

                      It was that they knew going into it that they had no basis for the warrant or investigation.

                    17. No idea what most of these are. What I could find were single sourced articles from like Gateway Pundit or Breitbart.

                      I do recognize most of them, but they’re mostly just wrong. The ones that aren’t are simply random pattern matching: you asked for mandamus and got it while I asked for mandamus and didn’t, so therefore it’s unfair, even though the two situations had nothing in common.

                  2. They believe none of those facts are true and just a right wing conspiracy.

                    Note Sacastros comment about guilty people. He believes Flynn is guilty and Hillary isn’t ignoring the mountains of evidence to the contrary and he will point to the corrupt lack of prosecution to dismiss you as a conspiracy theorist, while simultaneously pointing out a prosecutorial conspiracy to relieve Flynn of his guilt.

                    We live in different, irreconcilable universes from these people.

                    1. Yes, Sam. Different situations give rise to different findings.

                      There’s no conspiracy with Flynn, it’s all in the open. Flynn plead guilty, and the facts are pretty cut-and-dried. The plea withdrawal doesn’t argue with the facts, only that the investigation that found all the illegal contacts and lying shouldn’t have been started.

                      Hillary has had people dead-set after her for ages, with nothing they can show for it other than convincing people eager to smear all liberals that there’s a conspiracy.

                      If things are so irreconcilable, why do you bother posting about them?

                    2. I don’t know about *none* of those facts being true. I would say that the fact that the Trump Justice Department has had three years to find something to indict Hillary Clinton for, and has failed to do so, coupled with 25 years of investigations by Republican special prosecutors and congressional committees, strongly suggest that there really may not be that much to see. If it were only Democratic prosecutors and congressional hearings that were breaking in her favor you might have a point, but the fact that Republicans can’t seem to find anything to indict her for either says either they’re incredibly incompetent, or maybe she really didn’t do anything wrong.

                      At any rate, after 25 years of Republican investigations that have largely turned up zip, squat, bupkis, du rien, at this point you guys have turned into the boy who cried wolf. There have been just too many false alarms from your side about all of her alleged crooked behavior that haven’t produced anything for my side to continue to pay any attention.

                    3. Krycheck,

                      I don’t think the TRUMP Department of Justice has investigated Hillary at all.

                    4. “There’s no conspiracy with Flynn”…
                      Except that there is.

                      “The facts are pretty cut-and-dried”
                      They really aren’t.

                    5. Armchair Lawyer, if they’re no longer bothering to even investigate, that should tell you something.

                    6. So, Krycheck….

                      You’re saying if there’s no investigation anymore, that there isn’t any crime, and you should just drop the matter?

                      Is that your view?

                    7. S,

                      The fact that you believe Flynn’s guilt is cut & dry and without skepticism is beyond belief.

                    8. … and you believe Hillary’s innocence is cut & dry without skepticism is also beyond belief.

                    9. No, AL, my view is twofold:

                      1. Trump hates Hillary Clinton with the fury of a thousand suns, and the Justice Department is currently being run by one of his toadies, William Barr. It’s difficult for me to imagine that if there were something worth looking at, they wouldn’t be looking at it. That they’ve dropped the investigation strongly suggests even they acknowledge it’s a waste of their time.

                      2. For 25 years there have been investigations of Hillary Clinton, investigations of Hillary Clinton, and more investigations of Hillary Clinton. They’ve mostly turned up squat. At some point, I can be justified in tuning out claims that “Oh, *THIS* is the investigation that will prove that she should be in jail.”

                      3. I would not claim that Hillary has never in her life done anything to push the boundaries of what’s legal, but I do not understand this right-wing fixation on her. To hear the right tell it, she’s Judas Iscariot, Bernie Madoff and Marie Antoinette, all rolled into one. And again, at some point the raw bile coming from your side of the aisle results in the ever-increasing claims of criminality just getting tuned out.

                    10. Sorry, I meant threefold rather than twofold; my fingers got ahead of my brain.

                    11. Krycheck,

                      1a) Trump doesn’t hate Hillary with the fury of a thousand suns. Consider, Trump invited Hillary to his wedding. Hillary is his old political opponent, nothing more.

                      1b) I spoke too soon. I apologize. There was an investigation into the Clinton Foundation. There were a number of whistleblower reports there.

                      2) Hillary and Bill seem to regularly operate right up to the grey line, often beyond it, and their associates often go over and get caught. Whether it be confidential e-mails being leaked (resulting in 38 people being cited for violations in the state department), the 15 other people convicted in Whitewater, Perjury, obstruction of justice, or more.

                      3) “What’s the fixation?”

                      A) She and Bill have been VERY powerful politicians for much of their life. Being powerful makes you a more public target.

                      B) There’s enough smoke there, that it seems like they should’ve been caught. 15 people convicted in Whitewater…Clintons escape. Perjury, obstruction of office…Clintons escape. Rape allegations…Clintons escape. Massive amounts of foreign money funnelled into personal charity when sitting Secretary of state…Clintons escape. Any one of these things has brought down many politicians before.

                    12. He invited her to the wedding before they ran against each other for president. He’s publicly called for her to be indicted numerous times.

                      The fixation started before they were powerful politicians. She was being attacked when she was still first lady of Arkansas.

                      You may be right that they operate in a gray area, but it’s not illegal to operate in a gray area so long as you don’t cross the line. That they’re smarter than their associates who do cross the line doesn’t change that. At this point, no investigation to my knowledge has shown that Hillary Clinton committed a criminal act. She knows the right has had her under a microscope for decades so it would require an incredible amount of stupidity on her part to give them what they want.

                    13. 1) And Hillary’s called publically Trump a sexual assaulter, a Russian puppet, and an illegitimate president. Political rivals.

                      2) Hillary was pretty powerful as first lady of Arkansas. As well as having some major conflicts of interest, in her work with the Rose Law Firm representing her clients and the state, not to mention her influence with the selection of state judges. It’s a continuing trend there.

                      3) “You may be right that they operate in a gray area, but it’s not illegal to operate in a gray area so long as you don’t cross the line. ”

                      Oh, but that line……It’s often not quite illegal, but can be quite unethical. Those ethics are why politicians often stay away from it. And many times, it’s easy to slip across that line. Like those 15 people convicted in Whitewater. And other times, well, it depends who is making the charges as to whether or not you get charged.

                    14. “1. Trump hates Hillary Clinton with the fury of a thousand suns, and the Justice Department is currently being run by one of his toadies, William Barr.”

                      I think he probably dislikes her at this point. Hates her might be a bit strong. But “personnel is policy”; Trump may have a few people at the top of the DOJ, but they have to work with the people Obama spent 8 years putting there, because the only nominations McConnell had any interest in acting on were the judicial nominations. You can only do so much when the people you need to execute your orders are working for the opposing team.

                      “I would not claim that Hillary has never in her life done anything to push the boundaries of what’s legal, but I do not understand this right-wing fixation on her.”

                      It’s not so hard to understand: The Clintons were never content with just getting away with things. They liked baiting their foes while doing it. Example: The Rose law firm billing records were under subpoena. The Clintons looked and looked, but just couldn’t find them! Then the statute of limitations expires, they’re home free.

                      Then they have them show up on a table in the Library room, a couple days after they stop mattering!

                      If all they wanted was to be legally in the clear, they’d have burned them, and flushed the ashes. Finding them after they didn’t matter anymore was over the top. But it was perfectly in keeping with their political style: Obstructing justice was never enough, they needed their enemies to know they’d done it. They needed people to know, (But not be able to prove.) that they’d had the records all the time, and were violating the subpoena.

                      They were pulling crap like that all the time. They took too much delight in their enemies’ impotent fury.

                    15. Brett: “Trump may have a few people at the top of the DOJ, but they have to work with the people Obama spent 8 years putting there, because the only nominations McConnell had any interest in acting on were the judicial nominations.”

                      That’s hilarious and completely untrue. Trump hasn’t even nominated people for tons of open positions. I haven’t actually been able to find data on sub-Cabinet appointments, but his Cabinet appointments have been approved faster than either Obama’s or W’s. It is true that some of his nominees have been held up or rejected by the Senate, but that’s because they were terrible. Trump’s had no problem getting the vast majority of his nominees approved and the fact that he can’t fully staff his government despite having a friendly Senate is mostly evidence that he’s not actually very good at his job.

                    16. It’s pretty damn hilarious Brett rants on&on&on about the Rose Law Firm billing records, with the apotheosis of his sordid fantasy being this : “The Clintons looked and looked, but just couldn’t find them! Then the statute of limitations expires, they’re home free.”

                      Brett – if you please – I have a question for you : Have you ever gotten a single fact right your entire life? When the Rose Billing records were found they exposed no ethical or legal wrongdoing by Clinton.

                      1. The whole Whitewater farrago was investigated by the Resolution Trust Corporation (RTC), a corporate entity run by the Treasury Department to dispose of assets from failed S&L institutions taken over by the feds.

                      2. The RTC hired the San Francisco law firm of Pillsbury, Madison & Sutro to investigate Whitewater, led by partner Jay Stephens, a prominent Republican and former United States Attorney who served in the Bush and Reagan administrations.

                      3. The result was the “Pillsbury Report”, a voluminous investigation of Whitewater, the Rose Law Firm, and all related topics. Based on hours of testimony from both Clintons, interviews with scores of other witnesses, and over 200,000 documents, the Pillsbury firm’s findings (published in several volumes) cleared Bill and Hillary Clinton of any wrongdoing.

                      4. Their evidence included the found billing records, which Pillsbury, Madison & Sutro determined confirmed Clinton’s previous testimony. Kenneth Starr never found different, despite his best hack-job effort. Why do you think Starr was forced to traffic in illicit blow jobs to salvage his “reputation” in Right-Wing-World? Certainly not because of the “statute of limitations” issues; you just made that up out of whole cloth. Starr didn’t have the option of lying about the billing records as you do Brett…..

                    17. @Armchair,

                      “B) There’s enough smoke there, that it seems like they should’ve been caught.”

                      Speaking of double standards. Is the reason the President did not get caught up in Russia collusion because he’s actually innocent, or just beat the rap?

                    18. NToJ : Speaking of double standards. Is the reason the President did not get caught up in Russia collusion because he’s actually innocent, or just beat the rap?

                      Well, if Trump is innocent, his moment of vindication came on 24 July, when Mueller testified to Congress there was insufficient evidence for criminal charges over collusion with a foreign government to affect a U.S. election.

                      The next day, 24 July, Trump tried to extort collusion from a foreign government to affect a U.S. election.

                      But isn’t that the way of your hardened criminal? Just down the courthouse steps after beating one rap & he’s already into the next scam……

                    19. He believes Flynn is guilty

                      Yes. So does Flynn; he even admitted it, twice. Also, there is zero question that he’s guilty. We’ve seen the transcripts, even. He lied to the FBI about his call with Kislyak.

                      and Hillary isn’t

                      Not clear what you think she’s supposed to be guilty of, so I can’t really respond to that.

                  3. Re NToJ:

                    “There’s enough smoke there, that it seems like they should’ve been caught.”

                    This may have been somewhat difficult to follow in the thread. However, this was in response to a question/comment by Krycheck asking “What’s the fixation [Republicans have with getting Hillary.]

                    And I wouldn’t say there is a double standard here. I would say that Democrats have a fixation on “getting” Trump, because they also feel that there is enough smoke here, that there should be something.

                    1. “because they also feel that there is enough smoke here, that there should be something.”

                      That would be hilarious, if true, since it’s coming from their own smudge pots.

                2. Sarcastr0: “I care about the perversion of procedures.”

                  No, you don’t.

                  1. Nice post just calling me a liar without anything else.

                    Not really useful to anyone else, but did it make you feel better?

        2. Mandamus is only available if you don’t have an adequate remedy at law. I don’t know if the Hillary Clinton mandamus will hold up, but the argument is that she shouldn’t be forced to testify on matters irrelevant to the underlying proceeding. Waiting until that deposition happens is too late. Hence mandamus. Flynn’s stuff has nothing to do with that. He has a totally adequate remedy at law. And it would be unusual (though not unique) for an appellate court to issue a mandamus order directing a judge to do something before they do it, rather than ordering a judge to abandon a ruling already made.

      2. A win for the rule of law would have been for Sullivan to recognize and acknowledge the corruption in the prosecution, the brady violation, the acknowledgement the FBI knew his was not guilty of lying,

        but at least this was a A win only for procedural purposes.

      3. There are a lot of ridiculous parts to this case.

        – The judge inviting amicus to oppose an unopposed motion.

        – The judge hiring private counsel to represent him on a petition for writ of mandamus

        – The appellate court allowing the judge to represent his own interests on the petition.

        – The appellate court permitting a non-party to seek en-banc review.

        – The appellate court permitting a judge to preside over a motion that he opposes on substance.

        – Democrats pretending to be impartial.

        Well, maybe not that last one.

        1. You’re not even correct about what’s gone on in this case, much less what’s out of the norm or not.

    2. Justice delayed is justice denied.

      1. Exactly. Sully is going to delay his ruling for another month now.

  3. Ah, the ball is back in good Judge Sullivan’s court. What will he do?

    Option 1: (10% chance) Schedule a fairly fast hearing in 1-2 weeks. In this hearing, he will further question the government’s motives, imply Trump is to blame, and demand more information (via judicial order or subpoena) in order to try to ferret out some unethical or criminal behavior. This has a low chance of success however, as the government may delay or be able to then get a successful petition granted removing the judge.

    Option 2 (60% chance): Schedule a hearing in 6-7 weeks. Then throw down the proverbial gauntlet. Declare that Flynn is guilty and a traitor. Declare Flynn plead guilty, he has no rights of appeal, the government has no role in sentencing, and that the ball is entirely in Sullivan’s court. Sullivan does not need to grant any motion to dismiss the trial, and Judge Sullivan proceeds to sentence Flynn to the maximum time in prison. Timing here is key, this is a proverbial “October Surprise” (Sentencing between the 15th and 23rd of October), and may garner more anti-Trump votes. In addition, it doesn’t leave enough time for any Mandamus petition to be granted before the election.

    Option 3 (30% chance): Schedule a hearing in 11 weeks. After the election. Then rant a little about the case, but ultimately dismiss the charges against Flynn. This has the advantage of happening after the election (eliminating any good news for Trump), while simultaneously punishing Flynn just a little longer (Who needs a passport or 2nd amendment rights, or peace of mind or a speedy trial). It also has the advantage of potentially opening up a longer investigation into Trump and Barr if Trump wins the election (or loses).

    1. Option 4, non-zero chance: Trump comes out, says “This farce has gone on long enough!” and pardons Flynn. Then Sullivan attempts to rationalize why the pardon is unconstitutional somehow.

      1. Nah, Trump won’t issue a pardon until after the election, if it’s needed. Sullivan would love for Trump to issue a pardon. It lets him off the hook.

        1. Look, one thing Trump has NOT been doing is being shy about issuing controversial pardons. It’s a conspicuous departure from past Presidents’ behavior. He pardoned Arpaio only a few months after taking office, for instance.

          There’s no particular reason to think he wouldn’t pardon Flynn tomorrow if he thought the pardon appropriate. He’d even enjoy the complaints!

          1. Nah, looking at Stone he needs to be up against it before he reaches for that pen.

            Which is kind a sign of how screwed up and associated him personally his pardons often are.

          2. I think even Trump knows it would be better for Flynn to come out innocent than needing a pardon. If Sullivan sentenced Flynn tomorrow, and told him to go to jail immediately, Trump might issue a pardon to keep Flynn out of jail.

            Before that? Nah.

            1. You may have a point there. Trump wouldn’t let the possibility of complaints stop him from issuing the pardon, but he certainly would take into account whether it was better for Flynn if he waited.

        2. No, a pardon gives the media another thing to attack Trump with.

      2. I don’t think at this point Flynn wants a pardon. What would he be pardoned for? The DOJ has already stated after reconsideration they don’t think he committed a criminal offense, specifically lying about a material matter.

        1. You know, when a street corner crack dealer gets off on a technicality, we recognize that’s the way the law must function even as we still shun the criminal. Only Right-Wing-World (with its total divorce from ethics, legality, right & wrong) would celebrate sleazy trash like Flynn just because he might get away with it.

          Can we settle on a few basic facts here?

          1. Flynn was (and is) total garbage. Before being named Trump’s presumptive National Security Advisor, he showed himself a willing whore to the most odious regimes and causes. Whether it was Turkey looking for PR help to crush the Kurds, or the Saudis hoping to evade U.S. law and acquire sensitive nuclear tech, or Putin buying a pet U.S. general to sit by his side at a prominent public event, Flynn was willing & eager to be bought.

          2. But at the time Flynn accepted the NSA position no one knew just how corrupt he was. For instance, he sat in on two meetings with Turkish officials (including their Foreign Minister and Erdogan’s son-in-law) to discuss kidnapping a Turkish dissident living in Pennsylvania and smuggling him out of the country. The second meeting was exclusively to haggle over Flynn’s fee. This is the loathsome piece of shit Trump named to one of the most sensitive national security posts in the government. And those kidnapping meetings? They occurred AFTER Trump named Flynn NSA.

          3. But by the time he was named NSA it was already clear the full extent of Flynn’s foreign dealings was unknown. It was known by then he had flouted legal and ethical requirements to register as a foreign agent, disclose payments from foreign governments, and be transparent in his dealings abroad.

          4. So one of the first acts of the presumptive National Security Advisor is to call a high representative of one of Flynn’s former employers – the Russian government – and then lie about the substance of the discussion. Flynn lied to multiple White House officials. He lied to the Vice President. He lied to the FBI. It had been less than a year since Putin slipped 40K into Flynn’s hot & eager little hand. How is that not a counter-intelligence concern?

          5. And just for the record : Flynn pled guilty to lying to the FBI as part of a deal to forgo other charges against him, his business partners, and his family. I would think Judge Sullivan would have questions about that. How could Barr respond?

        2. 1. DOJ has not said that, to my knowledge.

          2. To the extent some of DOJ’s filings state that they are open to that possibility, the position is inconsistent with the position the government has taken in every previous § 1001 prosecution, and the position it will continue to take in every subsequent case that doesn’t involve a person that the president doesn’t want to see prosecuted.

      3. I think there’s a non-zero chance that Sullivan rules any pardon unconstitutional and sentences Flynn anyway.

        1. Would you like to make a wager? I’ll happily give you odds twice as good as whatever you’re calling “non-zero”.

    2. I’m seeing this more from the perspective of Flynn and the Government. Do they appeal now? My inclination is not to.

      One thing that moved the en banc court to some extent was Judge Sullivan’s dillydallying. As the court put it, they “trust and expect the District Court to proceed with appropriate dispatch.” If Flynn appeals immediately, you take that argument off the table. If you give Sullivan a week or two to rule – and he doesn’t – then you have another arrow in your quiver about harms to Flynn, taking over what is an Executive function, etc.

      But on the merits I’m pretty torn. On the one hand, Judge Sullivan pretty clearly plans a process to assess a 48(a) motion that is illegal and unconstitutional. On the other hand, it really is pretty much unprecedented for an appeals court to require a district to rule on a pending motion in a certain way.

      1. “Do they appeal now?”

        No. The SCOTUS wants no part of this right before an election. Especially Roberts. They just won’t hear it.

      2. “Do they appeal now? My inclination is not to.”

        The en banc court nailed you 8-2.

        It’s on a writ of mandamus.

        There is no real record that would support Rao’s …. interesting takes.

        The only possible reason to do it would be tactical (dilatory). IMO.

        1. But Lou Dobbs asked Sidney Powell yesterday why Justice Roberts hasn’t just announced that this whole thing is unfair and issued an order shutting it down, and asked her if she thought that might happen. And rather than laughing at Dobbs’ stupidity, she acted is if that were a possibility.

          1. Lou Dobbs says very little that is not stupid. I think political people on the left and on the right recognize this, so they are too polite to laugh in his face . . . much as you and I would be too polite to laugh at a mentally-challenged individual, who is doing nothing more than her/his best to articulate a point.

            Plus, an hour of hearing, “Hey Lou; are you lying or are you just an idiot?” would get boring very quickly.

  4. I agree mandamus was completely inappropriate here. A judge is entitled to hold a hearing on a motion before the court. And if Flynn loses, ordinary appeal will give him all relief he is entitled to, so there is absolutely no beed for the extraordinary remedy of mandamus.

    Applying extraordinary remedies when the criteria for their use are not met risks tainting the courts with perceptions of politicization and bias, especially in a politically charged case like this one.

    1. The problem is that Sullivan isn’t just holding hearings. He’s dragging things out to an unconscionable degree. Sure, you can appeal a loss, but, you have to lose first. Sullivan is preventing that appeal by not reaching a final ruling that could be appealed, just making the process the punishment.

      1. Yep. Consider, Flynn unlike other US citizens, Flynn cannot leave the country. He can’t have a firearm. He can’t have many of the common rights that all free US Citizens are entitled to. This is despite the government dropping all charges.

        And as long as Sullivan continues to drag this out, he continues to deny Flynn his rights.

        1. Boy you are going to be really shocked at all the people that are held in jail before they are even found guilty by a court.

          1. Are they held in jail after the government drops all charges?

            1. How long has Flynn spent in jail?

              Add up all the days and months and years, and get back to us. We will wait.

              1. He’s had his rights denied to him for over 2 years.

                1. So, wait.

                  First, you lie by implication (by trying to imply that he was being held in jail).

                  Then when you’re called out on your lie, you proceed to try and change the subject.

                  You are known by your posts. And your stupidity. But I repeat myself.

                  I feel bad for you. Did you know that gullible isn’t in the dicitionary?

                  1. “So wait”…

                    I see. Denying people their rights for years, is just fine by you, even if the government has dismissed all charges. Ohh boy.

                    P.S. Just because you can’t follow a thread properly doesn’t mean I’m lying.

                    1. No, you’re lying because it’s obvious.

                      Not just here, but everywhere.

                      The only difference between you and Dr. Ed is that you don’t have the benefit of charming, if completely insane, stories about New England.

                    2. No, you’re lying because it’s obvious.

                      Not just here, but everywhere.

                      I’d call this table pounding, but I’m not sure it has enough of a relationship with reality to even qualify for that.

            2. They’re often held in jail BEFORE the government even makes a charge (which means that many people get held in jail and then eventually released without the government ever charging them for anything).

              But yes, people also get stuck in jail even after the government drops all charges, although usually that’s a mistake as opposed to the intent of the system.

              1. They’re often held in jail BEFORE the government even makes a charge (which means that many people get held in jail and then eventually released without the government ever charging them for anything).

                For that matter, the very same people pretending that Flynn is being persecuted are the ones having a tantrum about bail reform that might result in people accused, but not convicted, of a crime being allowed to remain free before their trials.

            3. Are they held in jail after the government drops all charges?

              The government hasn’t dropped any charges.

      2. “He’s dragging things out to an unconscionable degree.”

        Jan. 7, 2020: DOJ recommends up to six months in prison.

        Feb. 9, 2020: DOJ suggests delaying deadlines.

        May 7, 2020: DOJ files for dismissal of action.

        (There were other filings, etc. after this).

        The hearing would have been held and the issue decided on July 16, 2020. That’s not DRAGGING THINGS OUT.

        Instead of simply having the hearing and getting the case either dismissed, or being able to appeal, we have had this sideshow.

        Sullivan did not drag this out. But for the completely improper attempt at mandamus, this would have already been disposed of.

        Facts. Don’t they suck?

        1. “The hearing would have been held and the issue decided on July 16, 2020. That’s not DRAGGING THINGS OUT.”

          (A) There’s no guarantee the motion would’ve been decided at the hearing.

          (B) 10 weeks between a motion to dismiss to even a hearing – not to mention inviting the already famous amicus to weigh in – is dragging things out for that kind of motion. So it seems to me.

          1. “So it seems to you.”

            So? Are you the arbiter of dragging things out?

            I assume you are an attorney; if you are, then you know that “10 weeks” in the legal profession is hardly “dragging things out,” and given that there was no emergency or injunction, a hearing in ten weeks is hardly “dragging things out.”

            And federal court will usually rule ore tenus from the bench on these sorts of issue and reduce to writing; it’s not like this is a complicated summary judgment.

            Seriously, though. It is beyond pathetic for people to look at the timeframe that was a product of Flynn’s attorneys, and say that this is due to the court dragging things out.

            1. It took Sullivan just 1 week to drop all charges last time the government said “Whoops, we want to cancel the case”.

              This time…10 weeks for some reason. Until just the hearing. Huh. I wonder why?

              1. I currently have a fully briefed motion to dismiss before a federal judge. It has been waiting for a decision, now, for 10 months.

                With the same judge, I previously had a fully briefed motion to dismiss that was decided, with a written opinion, in two weeks.

                There are two possible explanations:
                1. Context matters.

                2. A conspiracy of aliens!

                Given your posts on this board, I know you’re all about (2).

                1. Uh huh. And has the other side agreed with your motion to dismiss? Or is there…a controversy?

                  1. If the dismissal was “as of right,” you might have a point.

                    But you should know that.

                    It’s not. It requires leave of court. And courts have, in the past, held hearings on these motions.

                    You keep arguing in the circles of stupid. That’s okay, we know you by your posts.

                    1. That sounds like a “no.” The other side disagrees with your motion to dismiss.

                      This might surprise you, but when there’s no actual controversy before the court, when both sides agree the case should be dismissed, then the court generally acts quite quickly. It’s pretty easy.

                    2. “This might surprise you, but when there’s no actual controversy before the court, when both sides agree the case should be dismissed, then the court generally acts quite quickly. It’s pretty easy.”

                      Notice how much strain you are showing! The court “generally” acts pretty quickly. How quickly? I mean, is there a timeframe? A deadline? Is Flynn languishing in prison? No?

                      Is the court allowed to have a hearing (yes)?

                      Given the sheer amout of lying you do, it’s a wonder you still have legs to walk.

                    3. Given the sheer amout of lying you do, it’s a wonder you still have legs to walk.

                      Dude. Decaf. This is a political show proceeding, and you’re twisting yourself in knots trying to pretend it’s business as usual. Hearings on uncontested motions to dismiss are not remotely routine, nor is fighting in the appellate court over dismissing such a case. Judges love to get cases off their generally overloaded dockets. That’s the reason you’re screaming so loudly rather than providing any actual evidence to the contrary — you know better.

                    4. @Life of Brian,

                      “Dude. Decaf. This is a political show proceeding…”

                      So here’s the problem. People who spend their careers in federal court have an innate understanding of how slowly the wheels of justice spin. They have this sense from years of running dockets in which things happen in seemingly random time frames. The evidence that would have to be brought to bear is so broad as to be paralyzing, not to mention someone would have to tell you every case they’d worked on and go review motions and orders for hours. And even if they spent the time, you’d still deny its relevance because the judge was named Tom in that case and those cases are just different, or some shit.

                      If you conclude that there must be a conspiracy (“political show proceeding”) on the basis of a 10-week delay, it suggests you don’t spend much time litigating cases. Because the simpler explanation for a 10-week “delay” is that’s business as usual. (That would be true even if we weren’t dealing with COVID.) Because y’all don’t practice in court, you don’t see all those cases where non-political show proceedings last forever, for no apparent reason. And so your data set (of one) ignores the thousands of other cases which drag on for longer.

            2. I enjoy your portrayal of the proceedings as they stood before the district court as “ho hum, just another day at the office.”

              Lol.

              1. And I enjoy your repeated posts on this subject that both have repeatedly ignored the standards for mandamus, don’t seem to understand why they exist, and seem to create these awesome new standards that only you (and, apparently, Rao) are aware of that we should be following.

                It would be like seeing someone saying with a straight face, “Hey that MtD one because of all the documentary evidence they attached to it. That’s cool, right, because we wouldn’t want to waste the court’s time.”

                1. I’m not talking about whether mandamus is appropriate. I’m talking about whether judge sullivan reacted appropriately to the motion to dismiss.

                  1. How do you know if he “reacted appropriately” until he reaches a decision?

                    It’s like talking in circles. He set it for hearing.

          2. I think I heard about something going on right now that’s been slowing down the courts (although it’s not clear that ten weeks to hold a hearing is particularly long by the standards of the federal court system anyway).

      3. Oh, right. Sullivan’s the one dragging it out by prematurely getting the circuit court involved. Sure, Jan.

        1. Nothing in the petition or grant of mandamus prevents Sullivan from making his order on the merits.

      4. What about “Right to a speedy trial”?

        1. Flynn already pleaded guilty. There isn’t any trial.

      5. He’s dragging things out to an unconscionable degree.

        He scheduled the hearing for six weeks ago. It was Powell who prevented that from happening by filing a frivolous request for mandamus.

    2. I would accept the ruling that this was premature, if not for the explicit words of Judge Sullivan.

      1: He appointed an amicus to act as prosecutor. To my knowledge, this is unprecedented. It is a precedent that I do not think should be allowed to stand.
      2: He also explicitly requested an argument about whether a defendant could be charged for perjury for withdrawing a guilty plea. I am actually willing go out on a limb and call that thought “evil”. Are you genuinely going to argue that a person who is coerced into pleading guilty and is later proven innocent can be charged with lying to the court in their plea?

      No reasonable person could read Sullivan’s statement and honestly believe that he would grant the request. This wasn’t a hearing.

      1. I’m not sure what the hypothetical case of someone who has been “proven innocent” has to do with Flynn. But at any rate, what is the point of putting defendants under oath at the plea colloquy if there’s a blanket rule that they can’t face any consequences if they commit perjury?

        (Note, for what it’s worth, that Judge Gleeson recommended that Flynn not face perjury charges.)

        1. The prosecutor conceding prosecutorial misconduct, and that the charge never should have been brought, seems pretty close to “proven innocent”; At least adjacent. I admit it would be better still if the DOJ were sanctioning the prosecutor.

          1. The Department of Justice has not “conced[ed] prosecutorial misconduct” and in fact has expressly denied that it agrees with or was persuaded by Flynn’s allegations on that point.

            1. Yes, the DOJ is trying to have it both ways here. Conceding actions which constitute misconduct, while not admitting misconduct in its communications with the court. From the DOJ’s filing with Sullivan:

              “”In its motion to dismiss, the government first explained that, after “extensive review and careful consideration,” it had determined that continued prosecution of the case would “not serve the interests of justice.” Doc. 198, at 1. It explained that record materials could be taken to suggest that the FBI “was eager to interview Mr. Flynn irrespective of any underlying investigation” and that the interview was undertaken predominantly “to elicit those very false statements and thereby criminalize Mr. Flynn.” Id. at 16-17. As further discussed below, the FBI had determined that Flynn was not an agent of Russia by January 2017, and there was evidence that the calls did not change its assessment. See pp. 26-27, infra. When discussing Flynn’s calls with Kislyak, one of the interviewing agents expressed relief at the “serendipit[y]” that the Flynn file had been inadvertently left open [Not actually inadvertent, we now know it was intentionally left open to permit what subsequently happened.] and commented that the FBI’s “utter incompetence” in failing timely to close the file was actually “help[ing]” them. Doc. 198-8, at 2. And the notes of the FBI Assistant Director for Counterintelligence questioned the purpose of the interview and whether it was going to be conducted in a manner that would to get the “[t]ruth” or instead would “get [Flynn] to lie, so we can prosecute him or get him fired.””

              1. Yes, the DOJ is trying to have it both ways here. Conceding actions which constitute misconduct, while not admitting misconduct in its communications with the court.

                Wouldn’t that be a good reason for the judge to ask them to clarify their position, then?

                1. If it were at all relevant to whether the motion should be granted, sure. It wasn’t.

              2. Yes, the DOJ is trying to have it both ways here. Conceding actions which constitute misconduct, while not admitting misconduct in its communications with the court. From the DOJ’s filing with Sullivan:

                None of the things you quote constitute misconduct.

      2. 1: He appointed an amicus to act as prosecutor. To my knowledge, this is unprecedented. It is a precedent that I do not think should be allowed to stand.

        No. He appointed an amicus to argue against a motion.

        2: He also explicitly requested an argument about whether a defendant could be charged for perjury for withdrawing a guilty plea. I am actually willing go out on a limb and call that thought “evil”. Are you genuinely going to argue that a person who is coerced into pleading guilty and is later proven innocent can be charged with lying to the court in their plea?

        I guess that depends whether they lied or not. You realize that allocutions are specifically made under oath, right? And the defendant is expressly warned about that, right? What’s the point, if the defendant can later say, “Psych! I was lying!” without consequence?

        And note that Sullivan didn’t charge him with anything; he raised the question. And Gleeson’s answer was no!

  5. Yawn. A waste of time and effort and money.

    He’s getting pardoned if Sullivan doesn’t dismiss.

    1. You think that a prospective pardon should change the standard for judicial review?

      1. Why are you still here, Sarcastr0?

        Seriously, look at the general tenor and quality of the commentary. With the exception of a very few people (such as DMN), there is no point.

        1. When 95% of the comments are doing a passable MICK111!!!!11!!!! impersonation …

        2. LOL, you’re not wrong. But I’m a contrarian and have found liberal message boards don’t give me the intellectual workout I want.

          Do you know of a sane conservative message board I might try?

          [Note that were it not for COVID, I’d probably have quit political ‘debating’ online by now anyhow]

          1. Do you know of a sane conservative message board I might try?

            Sadly, I think this one’s the best. (Which should tell you something about the quality of discourse on the Trumpkin right.)

        3. The non-Blackman posts are still pretty interesting. I still read the comments primarily to dunk on Dr. Ed.

          1. Noscitur,
            But Dr. Ed has a story about when he dunked on Michael Jordon in a spirited game of one-on-one. And another story about how someone he knows from his college was about to dunk on LeBron James when some liberal/feminist/pro-abortion person prevented it by ____ [fill in the name of your favorite unscrupulous act].

            All of these things totally happened to him, or to someone where he has personal knowledge. Totally happened.

      2. “You think that a prospective pardon should change the standard for judicial review?”

        I think Sullivan should have not grandstanded. But I don’t care because Flynn is not going to prison. Not that I really care if he goes or not if it comes down to it.

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