Flynn case: En Banc Decision. So for today I'm going to give some overall assessment comments and then this weekend I will see if I can make time to walk you through all the parts of the 60 page opinion. Here is a link to the decision:
As I'm sure you've seen reported elsewhere already, the full court denied all the relief requested by Flynn - no mandamus to Judge Sullivan ordering him to dismiss the case, no removal of Gleeson as amici, no reassignment of the case away from Judge Sullivan. /2
The main holding is that since Sullivan hasn't ruled yet on the DOJ's proposal to dismiss the case, Sidney/Flynn did not establish the element of mandamus that he has no other adequate available remedy for the alleged problems. Basically: Flynn can appeal so what's the problem?/3
It's a technical ruling, which, as I said during my live tweet of the argument, shifts the focus of the case from Flynn to the relationship of the trial court to the Court of Appeals. They frame the issue as can/should they issue mandamus w/o giving Sullivan a chance to rule. /4
They do not address virtually any other argument that lawyers & the media have been debating in this case: separation of powers, the scope of Rule 48, the breadth of the review allowed by Fokker. /5
They avoid all of those by focusing on the remedy issue - if Sullivan goes crazy at the hearing, denies the motion, etc., Flynn can appeal &/or Flynn & DOJ can seek another mandamus then.They emphasize that they could find no case where mandamus happened before the judge ruled./6
They also avoided the arguments DOJ made that Judge Sullivan did not have standing to ask for rehearing en banc by saying that one of the judges on the Court of Appeals had asked for the case to be reheard on banc before Judge Sullivan asked for it. /7
The majority took the view that they just couldn't tell a district court it couldn't hold a hearing on a motion (even in the face of facts indicating the district court was going in a problematic direction = my comment). /8
They think there's nothing problematic in appointing an amicus in a criminal case. (I agree w/this point as I've said many times.) They also didn't think mandamus to kick Gleeson off the case was warranted because the order appointing him wasn't inappropriate on its face. /9
And, they didn't think Judge Sullivan had said or done anything egregious enough to indicate personal bias against Flynn warranting removing him from the case, which I had also predicted all along. /10
They've taken the view I have called "blinking reality" in prior posts on this case. If you sanitize the facts, it's just a judge doing what judges always do - require pleadings, hold hearings, make rulings - and why shouldn't the court of appeals wait to see what he does? /11
This ruling reeks strongly of a decision based on "Judges Self-Protection League" grounds, which is a recurring problem with every court of appeals. They simply do not want to tell the lower court judges that they are acting out of bounds even when they are. /12
Rulings on that basis are seldom exercises in justice, however. They necessarily distort the law & they violate the court of appeals' obligation to protect the litigants from problems in the judicial process. Unfortunately, they are all to common anyway. /13
On the upside, there are two points. First, the majority makes it very clear they expect Judge Sullivan to now act promptly on the motion to dismiss. They order him to act "with dispatch." /14
Second, they drop an important footnote about how Judge Sullivan's lawyer swore up & down at the oral argument that he was clearly, absolutely, positively, certainly, definitely not going to hold an evidentiary hearing on the motion. This is plainly a signal to Judge Sullivan./15
It's a signal that the Court of Appeals expects him to hold a dignified hearing, w/o witnesses or any other factual development of the record, & to make a prompt ruling. Subtext: grant the motion to dismiss & put this case to bed ASAP. /16
Whether Judge Sullivan will do that I do not know. It will be fascinating to see what he does do at a hearing, or if he even chooses not to have a hearing now that the Court of Appeals has said he can if he wants to. We'll see. /17
On balance I will say I don't agree w/the holding of the majority which I'll explain in my longer thread, but no matter what this is a Pyrrhic victory at best for the left. Flynn is still going to get his dismissal & there will be no searching investigation into DOJ's motives./18
It's mostly a face-saving exercise & a prissy protection of the courts' sacrosanctity. /19
Flynn has the right to petition for certiorari by the Supreme Court. I think DOJ likely can't as it didn't petition for mandamus or formally join Flynn's. The deadline for that is 90 days from today. The case will go back to Sullivan in the meantime, however, in about 14 days./20
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Federal judges have become so used to issuing opinions & orders that invalidate federal agency actions that they no longer recognize where the line is drawn signaling the end of their power & so they fail to see that they blew past that line miles ago.
Any federal judge thinking they can personally enjoin the POTUS (or the Congress as a body either) has totally lost the plot.
Nor does a federal court have ANY power to dictate what/how the POTUS as Commander in Chief directs active duty military personnel, esp beforehand.
It does not matter that a prior order says that POTUS cannot federalize a state National Guard. POTUS has the power to direct already federalized Guardsman from other states to assist in the carrying out of federal law. That’s not an end run around the earlier ruling.
As we discussed on the Spaces last night, I’ve been going back and forth in my mind on this question ever since the indictment dropped. There are competing considerations, but I’ve finally concluded that the answer is yes, he should have been.
It goes without saying that both the lawfare & the coup against Trump were totally unacceptable. And Comey is partly responsible for both. That makes him a traitor to the republic. It doesn’t necessarily mean he broke any federal criminal laws in doing so, although he might have.
Mostly tho, the federal criminal law is not designed to address that conduct. We haven’t needed criminal statutes in the past to tell people not to undermine the duly elected POTUS. Thank goodness, in a way.
The EO banning no cash bail in DC may be legal but doesn’t address the real problem.
DC law permits judges to detain anyone who’s violent/a risk to others or a flight risk. No cash bail is only for people who aren’t. The problem is w/juveniles, not adults getting no cash bail.
And the EO may not be legal actually either. I’d need to go back and look at the authorities closely.
But the fact that the feds have power over DC doesn’t necessarily mean the federal executive branch can do whatever it wants.
Congress has the constitutional power over DC.
Congress definitely has the power to override any DC law. In fact, DC laws don’t go into effect until the Congress either exercises its right to amend them or passes on that.
So, I’m not sure that the POTUS has the authority to override a law that Congress has approved.
There once was a General named Clapper,
By trade a clandestine wiretapper,
But he joined the Steele Hoax,
Now his rep is a joke,
And his life is going down the crapper.
There once was a G-man named Comey,
Who didn’t see Steele was a phony,
He said: “Hilary is Ok!,
It’s the Donald who must pay!”
Cause he couldn’t tell shit from baloney.
There once was a lawyer named Page,
Who was lovely but not very sage,
Her texts to her man,
Only helped get him canned,
As they wallowed in impotent rage.
Hoaxers: “Trump, you can’t be POTUS even tho you just somehow won the election. No, no, no.”
DJT: “Hahahaha. Watch me. Losers!”
Hoaxers:
Hoaxers then proceed to do a whole bunch of things to try to make actual reality -in which DJT is POTUS- match up to their “reality” in which he can’t be.
That’s was IMPOSSIBLE to achieve in Fall & Winter 2016-2017.
But they tried anyway.
It’s a non-rational conspiracy.
Non-rational conspiracy is rare. It’s usually confined to a very small number of people because it’s based on actual mental illness & a few other factors, like coercion &/or psychological pressure. Think Manson Family.
But it can be based on group psychoses or shared psychological stress rather than outright mental illness. Large suicide pacts are an extreme example, like the Jim Jones incident. John Brown’s raid could be seen in this light too. And perhaps the Gunpowder Plot in Britain.