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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More from @McAdooGordon

21 Jun
So you know. Some people have asked (me or others) why it’s allowed to not use names in indictments at all. Usually when I see a question a few times like that it means others wonder too, but don’t want to ask.

Prior to about the early 70s, unindicted people *would* be named./1
This would be other people the govt thought was guilty or just a witness sometimes. This practice was roundly condemned as abusive because it publicly accused people of crimes, but afforded them no opportunity to clear their names. /2
Like a lot of things, a lot of criminal law & procedure changed quite a bit after 1970. DOJ eventually changed it’s official policy to what it is now -that except in exceptional circumstances- DOJ doesn’t name people it thinks is guilty of crime unless it indicts them. /3
Read 5 tweets
21 Jun
Some people aren’t getting what I said about FBI infiltrating groups (not the UCC part) because they’re making assumptions about my position, they reacted to earlier tweets first & I hadn’t expected so many people on the right to have a certain mindset. It’s about these. 👇🏻/1
Where we seem to be is that the Left thinks the govt should be routinely infiltrating these groups regardless of criminal conduct - see Greenwald’s article - & the Right thinks the FBI routinely IS doing so because FBI doesn’t follow the law anymore. THIS IS A BIG PROBLEM. /2
As Americans we should all agree that political or ideological groups can only be infiltrated or investigated by the govt if there is some evidence of criminal activity underway & even then not necessarily the whole group. This is what the law is. /3
Read 11 tweets
18 Jun
@CSpenc32683 @factsMa22309408 @DonLew1s @youreyeondenver @shipwreckedcrew It says in longer form what I said about how FBI investigations into political groups are actually supposed to & do usually work -there are requirements, tho they’re sometimes evaded, & then people have to explain what the hell they were doing if it goes wrong. /1
@CSpenc32683 @factsMa22309408 @DonLew1s @youreyeondenver @shipwreckedcrew It also makes clear what I was saying about the backdrop- that since the COINTELPRO scandal & the Church Commissioner, the govt is reluctant to initiate investigations of groups that are clearly not criminal per se & are exercising First Amendment rights. /2
@CSpenc32683 @factsMa22309408 @DonLew1s @youreyeondenver @shipwreckedcrew They know there will be shit to pay if they do & they get it wrong. That’s basically what Wray told the Senate in March - the Bureau can’t just investigate groups whose ideology isn’t popular. No less than Andrew Weisman was COMPLAINING about exactly that today in WaPo.👇🏻/3
Read 4 tweets
16 Jun
NONE - I repeat - none of the unindicted co-conspirators in the Jan 6 cases will turn out to be undercover agents/informants. The law doesn’t consider them “conspirators” whether they’re indicted or not - they’re not legally agreeing to the offense. /1…
There may be undercover agents or informants in the cases -I’ll get to how likely that is in a minute- but they WILL NOT be identified in DOJ pleadings as unindicted co-conspirators. If DOJ knows they are cops/informants, they can’t put them in charging docs as co-conspirators./2
The ONLY way that happens is if DOJ doesn’t know the person is undercover/an informant, or if the AUSA has gone completely off the rails in violation of the law & Dept policy. Any AUSA who’s done that will be in SERIOUS trouble, as will any LEO who may have misled DOJ about it./3
Read 19 tweets
13 Jun
Today is my birthday. I am really happy to be alive, to be an American, to be married to my hubs, to be free, to be able to read & write. For lots of things. I am the happiest I’ve ever been at 53 because I know who I am, I love who I am, I accept myself, mistakes & all. /1
In the past, I struggled w/finding happiness but I haven’t for years. I know I am connected to the Creator of all; that a piece, if you want to think of it that way, of the Almighty lives in me. I know my husband loves me, faults & all, as I love him. We love being together. /2
But more recently I have also found a true joy in life. I find it beautiful, rich, rewarding, delightful, joyous; regardless of circumstances or trials or pain. Life itself amazes & captivates me. My heart bursts with happiness simply from being alive. /3
Read 6 tweets
3 Jun
Charles may be right that DJT has said or believes this, but neither he nor Maggie Haberman name ANY source for the claim. The Right is correct & rational to be skeptical of a story based only on anonymous sources, especially one about DJT. /1…
And Maggie’s tweet 👇🏻 hardly qualifies as “reporting.” She points to no source or evidence for her factual assertion & then offers her own legal opinion at the end. Given her track record with the Russian collusion hoax, people are wise to be wary of anything she says. /2
I agree w/Charles on the substance of the matter. You can see my thoughts in my tweets on Sunday commenting on Sidney Powell’s remark about “reinstatement.” There would be a myriad of constitutional & legal problems even if it were crystal clear to all that DJT had really won. /3
Read 5 tweets

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