Thread by @McAdooGordon

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