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:

drive.google.com/file/d/1Tt4K1W…

/1
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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More from @McAdooGordon

Oct 30
I’m sorry but if you marry a pro athlete who then becomes a preeminent one & ultimately GOAT of his position, you need to accept that he’s never going to stop being actively involved in his sport. It’s who he is. You’ve no right to demand otherwise. Accept or move on.
It’s really the same even w/o the pro athlete angle, it’s just always easier to see principles using an extreme example. You shouldn’t try to make your partner less than they are. They don’t have to change who they are for you or the relationship. Neither do you.
Change some of their interpersonal behaviors, sure. That’s different. Like learning to argue more civilly for example. Or expected them to say what they want instead of making you guess.
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Oct 21
Bannon case.

Bannon's counsel quoted my hub's article & attached it to their pleading last night on whether jail time is mandatory or whether probation is available for Judge Nichols to impose this morning.

The article (from Law360) is attached.u.pcloud.link/publink/show?c…

/1
Here is the full pleading.

u.pcloud.link/publink/show?c…

/2
The Government claims the probation option is an "illegal" sentence.

(I think they didn't read hubs' article. 😉)

Their pleading is here.

u.pcloud.link/publink/show?c…

/3
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Oct 4
This is about the third article in recent weeks that WaPo has done about DJT’s legal team or moves that contains info that is virtually certain to be attorney-client privilege protected.
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Sep 26
This 👇🏻is the correct conceptualization of free speech. If you don’t believe this, you support censorship, authoritarianism, & tyranny. Free speech is the litmus test for whether someone is a liberty lover or a fascist. Image
Use it accordingly. People who:

1. agree are partners or potential ones in the liberty movement even if they disagree with you about other legal or political issues. Keep them in your life.
2. mostly agree but w/questions or concerns. They can likely be brought around to liberty values. Keep them in your life, but not in positions of power over you. Help them see liberty issues concretely instead of as an abstraction, which can usually strengthen their views.
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Sep 17
Happy Constitution Day!

Another year in our Great Experiment under our beloved Constitution.

A short, high-level primer for those of you who don’t spend your days reading legal & centuries old documents! 😀
The first thing is the Preamble. It is almost like a little poem. It does not have the force of law, but is an overview statement of the purpose of the Constitution. The best way to learn it is from the Schoolhouse Rock video.

Next is Article I. It’s about the legislature - Congress. Notice it’s FIRST in the Constitution. In a republic, the people’s representatives are the most important part of the government. Basically in this section is all of Congress’ powers. If it’s not in here, they can’t do it.
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Sep 13
Ship got a rare outcome in a Jan 6 case today - Judge McFadden in a bench trial acquitted Ship’s client & a co-defendant of the Obstruction charge (18 USC 1512).

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Ship is a tremendous advocate for his clients.
McFadden convicted on some of the other charges (aiding & abetting; civil disorder) - noting how broad they are - but not as fulsomely as the Govt wanted, which will also mean that some of the sentencing enhancements the Govt wants also won’t apply.
It shows how hard these case are. Winning one count & parts of two others is a major victory.
Read 5 tweets

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