Full DC Circuit Shifts Mike Flynn Analysis Back to What It Should Be: Unusual Remedy

The full DC Circuit just announced it will rehear Mike Flynn’s petition for a writ of mandamus on August 11.

That they’re doing so is no surprise. Neomi Rao’s opinion threatened to overturn not only precedent on mandamus, but also on false statements cases. The decision was all the more radical insofar as it granted relief to DOJ, which had not asked for it.

What’s notable is that the Circuit is shifting the analysis back to where it should have been in the first place.

When the panel of Karen Henderson, Neomi Rao, and Robert Wilkins first invited briefing on this issue, they focused on whether US v. Fokker required Judge Sullivan to dismiss the case, as the government moved.

Today’s order instructed the parties to be prepared to address whether there are not other adequate means to attain the relief desired, which goes to the core of writs of mandamus (which are only supposed to be available if something like an appeal is unavailable).

Even Karen Henderson suggested in the last hearing that Flynn did have other means of relief — an appeal of any decision that Sullivan actually makes (it has yet to be determined whether, by delaying the decision on whether to dismiss the case, Sullivan has taken an action at all).

Flynn will have a much harder time making this argument, as he can appeal whatever decision Sullivan makes. The government, however, will be in a much more awkward place, because they’re arguing — having not filed for a writ — that they’ll face irreparable harm if they have to show up for a hearing before Judge Sullivan, a ridiculous claim yet nevertheless one Rao seized on to be able to rule for Flynn. It’s unclear whether this new frame — which is what the court should have reviewed in the first place — will even leave space for the government to make that argument.

Which might mean Billy Barr will have to explain why DOJ flip-flopped even though nothing had changed from the time his own DOJ called for prison time for Mike Flynn.

55 replies
  1. Rugger9 says:

    This is good news, where the arguments barfed up by AG Barr’s DOJ actually get considered on their merits, few though they are. Rao’s overreach to grant DOJ their unasked-for remedy reminds me of a couple of SCOTUS cases where the same kind of overreach was done (IIRC, wasn’t Shelby and Citizen’s United both similar in this way?) which should hopefully be rectified en banc. Then off to SCOTUS, which might be interesting to see if / when / how quickly they move (given how Kavanaugh was trying to delay cases until after the election).

    What this also tells me is that Henderson didn’t follow the law here since remedies were available and there was as yet no decision to appeal (which was one option still open). While erratic rulings (according to bmaz) were not unexpected, I would have thought Henderson would have let the process play out first. One wonders what Rao said or traded to get her way here.

    August 11 should be interesting, will the hearing be broadcast? If so, the inconvenient truths will be “out there” (the Cokie Roberts rule) and AG Barr will have more ‘splainin’ to do. It also might become part of Kavanaugh’s calculations to provide a rebuttal opportunity.

    • Yogarhythms says:

      “that they’ll face irreparable harm if they have to show up for a hearing before Judge Sullivan, “
      9,800 years ago Chinese rice kitchen said” If you can’t take the heat. Get out of the kitchen”. DOJ lawyers new what they were signing up for.
      Comparative harms: Billy’s DOJ lawyers spouting arguments supporting Flynn’s dismissal or Healthcare workers wearing yesterday’s PPE

    • Raven Eye says:

      The cities who host his events should get together and establish an escrow account so that when they get picked, they can point to the account, provide an estimated cost, and require 150% deposit.

      Or just require a bond for 200% of their estimated costs.

    • pablo says:

      The leaders of most of most of those cities don’t give a shit, the do it because they support Trump. It’s the taxpayers who are screwed.

          • P J Evans says:

            IIRC, El Paso asked him not to come. I don’t think there are many big cities with GOP-T mayors. (Or, why I wanted a citation on that stuff about those being cities with mayors that support T.)

          • oldoilfieldhand says:

            ” we care”
            Hopefully this is a true statement, now…more of a gray area; but back when things were more starkly Black and White…

            On March 19, 1991, NFL owners voted to remove the 1993 Super Bowl from Phoenix after Arizona voters failed to make Martin Luther King Jr. Day a paid holiday.
            Then-President Ronald Reagan signed the bill that established the first national holiday in honor of King in 1986, and then-Arizona Gov. Bruce Babbitt followed suit.
            Babbitt’s successor, Gov. Evan Mecham, rescinded that decision in 1987, explaining that the governor didn’t have the authority to decide by himself on a new paid state holiday.
            At the time, only 3 percent of Arizona’s population was black, but most of the players in the NFL were African-American.
            Two yes/no referendums on MLK Day were on the ballot, and both were defeated. The league had been upfront about what would happen if the paid holiday was not enacted.*

            *The Undefeated March 22, 2017

            This action in no way represented the prevailing views of the NFL team owners, it was a reflection of the pressure the owners felt from the majority of the NFL star players.

            Trump may be a misanthrope, but he knows where “his people” are.

    • earlofhuntingdon says:

      Host cities should demand payment up front or decline the honor. (They could refuse to provide additional services, but that might put their own people in jeopardy.)

      In any case, these are private gatherings, contracted for by private entities, not by the president or any arm of the USG. (Try and enter one without a ticket or, in some cases, pre-screening, or try to exercise your free speech rights, if you think they’re public.) There is no legal impediment to suing the Trump Org or any of Trump’s various campaign entities. They could also advertise the arrangements, the promises to pay, and Trump’s refusals to pay.

  2. Peterr says:

    The government, however, will be in a much more awkward place, because they’re arguing — having not filed for a writ — that they’ll face irreparable harm if they have to show up for a hearing before Judge Sullivan, a ridiculous claim yet nevertheless on Rao seized on to be able to rule for Flynn.

    I don’t think this is a ridiculous claim at all, Marcy. The government lawyers will be irreparably harmed, in that their lies and mis-statements before the Court will be held up for all to see. Their personal reputations will be torn to shreds, and the reputation of the Department of Justice under the leadership of AG William Barr will be torn apart with it.

    This is life and death for these government lawyers, and they know it.

    Of course, this is not the specific harm that the government argued they would suffer. That stated harm is the ridiculous claim indeed. But make no mistake: they *will* be harmed — because they have been ordered to show up at 9:30am on August 11, and that appearance will not go well for them.

    And Noel Francisco is a good enough attorney to recognize that. I’m guessing he won’t be sleeping very well for the next two weeks.

    • person1597 says:

      “On June 17, 2020, Francisco announced that he would be leaving his post at the Department of Justice, effective July 3, 2020.”

      “The current acting Solicitor General, Jeff Wall, has been serving in the role since July 3, 2020.”

      “Principal Deputy Solicitor General Jeffrey Wall, who recently urged an appellate court to order the dismissal of the federal prosecution of Michael Flynn, soon will step into the job of the government’s top lawyer before the U.S. Supreme Court.”

      Oh, the humanity…!

  3. Manqueman says:

    The chief judge of the DC Circuit is an Obama appointee. What the court’s doing here is pretty much exactly was should hae been expected.
    And Rao’s deranged application to be appointed to SCOTU– I mean decision practically requires an en banc hearing so, if her decision’s affirmed, the basis can be changed into something less insane and blatantly ignoring any credible legal basis. Even some GOP whacko judges hesitate to make it too clear that rule of law is now, well, not adhered to more than necessary. Rao’s decision crapped that bed.

    • bmaz says:

      Rao’s insane opinion will not be rejuvenated. I count at least six votes for Sullivan already. Now what SCOTUS “might” do afterwards is a different matter. But Rao’s opinion is gonna stay vacated on the DC Circuit by best I can see.

  4. JAFive says:

    Where does this leave things in the meantime? Can Judge Sullivan schedule a hearing for next week and question the government given the full circuit vacated the panel opinion, or does everything get held in abeyance until they rule en banc?

  5. AGoodEsq says:

    Any chance someone gave Trump a heads up that this was coming down today and he was deflecting from it? He seems to care more about things that impact him personally, as supposed to something like GDP.

  6. anaphoristand says:

    Glad to see this kicked down the road a ways, ’cause the more time that passes, the more that ball gag AG Barr’s keeping firmly clenched twixt Jeffrey Jensen’s jaws seems liable to get noted.

  7. x174 says:

    what i find so interesting about this development is how it will necessarily gum up durham’s investigation of the investigation, which seemed to be put into higher gear following barr’s attempted dismissal of the doj’s case against flynn (in May) as seen, for example, by the resurrection of kt mcfarland fox sewage appearances and her op-ed defending his decision (https://www.foxnews.com/opinion/kt-mcfarland-barr-right-to-drop-flynn-prosecution-those-who-framed-flynn-must-be-held-accountable).
    from my take of the mueller report, kt mcfarland must have squealed on her boss to not be in their cross hairs. what i don’t understand is why mueller et al didn’t pursue her more vigorously–she was obviously the senior trump adviser (at mar-a-lago with trump) when flynn called there on 29 dec 2016.
    if rao’s telegraphing of the doj’s terror is any indication of barr’s visceral fears, then judge sullivan will be well positioned to get to the bottom of our flunky usag and his supposed “evidence” (no doubt from durham) that will reveal that the mueller investigation wasn’t properly predicated.
    barr’s too has to explain his faulty reading of the mueller report to Judge Amy Jackson soon.
    sounds to me like barr’s going to be a busy boy protecting his own ass that he might not have enough time to defend his number one client, the demented one (whose sorry excuse for lawyers, incidentally are scheduled to appear to argue before an informed judge their “revised” positions on 14 august).

    • FL Resister says:

      All of these judicial fires being lit are nice kindling for blowing up Trump et al schemes.
      Hope to see a bonfire of their vanities as they all go down in flames.

      • Raven Eye says:

        I had not thought of it in that way, but all these people and their little projects are surely the objects of Trump’s sins — and their own…Nested sins/vanities if you will.

  8. x174 says:

    correction: it’s not “Judge Amy Jackson,” but Judge Reggie Walton for whom barr has to cough up some excuse for his gross misrepresentations of the mueller report

  9. earlofhuntingdon says:

    Jared Kushner is not the brightest bulb in the pack, and he’s devoted to the self-serving myth put out by billionaires and investment bankers that they get stuff done. Vanity Fair has a startling report on how Kushner assembled a small group of them at the White House, in responses to the Covid-19 epidemic. He bypassed everyone in the USG, preferring to reinvent the wheel, to come up with a comprehensive plan for how the USG should respond. https://www.vanityfair.com/news/2020/07/how-jared-kushners-secret-testing-plan-went-poof-into-thin-air

    Surprisingly, Kushner’s secret society came up a decent plan. Not as comprehensive as the resources Trump inherited from Obama – but fired – would have been. But it was a good start. Then the White House shelved it. At the time, Covid-19 was hitting Democratic states in the Northeast, and that was seen as pennies from heaven. So Trump shelved the whole fucking plan, never replaced it, and sat on his arse hoping for the best – for him.

    Most troubling of all…[was the sentiment] a member of Kushner’s team expressed: that because the virus had hit blue states hardest, a national plan was unnecessary and would not make sense politically. “The political folks believed that because it was going to be relegated to Democratic states, that they could blame those governors, and that would be an effective political strategy.”

    Never send a sociopathic man-child out to do a woman’s work. Trump should be in federal prison, not in the Oval Office, trying to steal another election.

    • Ginevra diBenci says:

      The most fascinating, and tragic, aspect of that report is just what you pointed out, EOH: that Jared’s assemblage of former roommates and yachting buddies actually did the work. Not only do they seem to have committed to the task, but they finished it–or at least they finished something that might have saved thousands of lives had it been implemented. Somewhere in the corrupt chasm between Jared and Trump it apparently met its demise. I pray the whole story comes out.

  10. madwand says:

    It’s very possible this case never gets back to Sullivan. Odds are Trump pardons him to save himself, Barr, DOJ, and Republicans in general from embarrassment. Thats a surer course of action then keeping it in the news especially if that decision has to be made before the election.

      • madwand says:

        Eventually one would hope that is the rub, but Trump always survives in the short term, delaying, deflecting, distracting, and hoping upon hope he can turn it around. So assuming the full court sends it back to Sullivan and he schedules all those hearings everyone is hoping he does and this happens before the election. Trump then has a hobson’s choice in my view. Pardon Flynn and take the flack or let the hearings proceed with a lot of publicity. Swalwell had Barr pretty boxed in the hearing but I don’t see Barr charging Trump with obstruction. He won’t and there will be a lot of pushback by Dems deservedly on that. Possibly months of publicity or a pardon, he will choose the pardon and hope his apologists can save him. I would personally like Trump to hang out Barr and see him testify before Sullivan, but I don’t think that will happen and will be pleased to eat these words if that occurs.

        • puzzled scottish person says:

          Trump’s whole career has been around time-wasting and distraction. He uses the courts to buy time even when he knows he can’t win. My bet is he’s hoping to use that tactic in the election, too.

          He is a vexatious litigant.

          I’m not sure that’s much of a ‘thing’ in the USA but perhaps it should be.

          • P J Evans says:

            It’s not unknown in the US, and they tend to be on the receiving end of “show cause” orders.

  11. dashc says:

    Hopefully Swalwell raised the bar (no pun intended) for a pardon earlier this week by reminding Billy Barr that a president issuing a pardon a to cover his own criminal acts is illegal.

  12. Molly Pitcher says:

    From the Daily Beast:

    “Even a co-founder of the conservative Federalist Society expressed horror at Trump’s tweet about delaying the election:

    “Until recently, I had taken as political hyperbole the Democrats’ assertion that President Trump is a fascist. But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate,” Steven Calabresi wrote in an op-ed for The New York Times.”

    Wow, when you lose the FedSoc, you have lost the majority of your transparent legitimacy.

    • Eureka says:

      I never trust them, figure this is just a ploy (were it to work) to get Pence on the top of the ticket so they might get a chance to win, or lose less resoundingly/overwhelmingly/overall-ishly (emphasis on ‘when has the FedSoc cared thus far’ about Trump’s routs on the Constitution or our democratic way of life). They just want to maintain their judge factory.

      • Molly Pitcher says:

        I have been speaking strongly against those who want Trump out before the election for just this reason. I think the Right would like nothing better than to replace him with Pence.

        Too bad, they had their opportunity during the Impeachment. Missed the boat on that one.

        • Molly Pitcher says:

          I have actually wondered if the worry about Pence being attractive to the Right was behind the flaccid impeachment effort by the Democratic Leadership.

      • I Never Lie and am Always Right says:

        I agree that they want Trump gone from the ticket. But I think that the key reason they want him gone is that they want to keep the Senate in the hands of the Republicans. What once appeared to be a Sysephean task, Electing a Democratically controlled Senate, is now a possibility. I doubt that they think it is possible to retain the White House, even if Trump is not on the ticket. They desperately want to control the Senate, however, for obvious reasons

        • Eureka says:

          Yes, that was my point — down-ballot, chiefly Senate (key races aside, they barely seem to GAF about the House — or maybe are caring too little and late, now that the House-neutering Senate maj. is in play. Worth adding that a stronger dem maj in the house might defray some intra-party neutering on some issues as well).

          • Ginevra diBenci says:

            DJT just concluded the coronavirus briefing with a disquisition on the horrors of mail-in voting. He extolled the virtues of “absentee voting,” however, as if that’s a different thing. I wish MSNBC would stop giving him the venue every time he feels like selling us “hydroxy” again.

  13. Eureka says:

    OT but major: Dersh et al. details _unredacted_:

    Andrew Feinberg: “Maybe this is why Alan Dershowitz keeps insisting that he always visited Jeffrey Epstein’s island with his wife…”

    Adam Klasfeld: “NEWS: This same document appears also to have been released publicly tonight in unredacted form and shows Jane Doe 3 accusing Alan Dershowitz. @CourthouseNews …”

    There’s more, see respective timelines ^

    • Eureka says:

      Updates in the midnight hour(s):

      Klasfeld deleted the ‘News’ tweet because a version of the unredacted SDNY document had shown up — briefly — on the FL docket in 2014, which Josh Gerstein then-snagged it for a scoop. However, there is at least one difference, the explicit accusation re Dersh negotiating a deal that would immunize himself. Klasfeld asks if anyone can find other differences between the SDNY and 2014 FL versions at this thread/ w Gerstein convo (click around):


      For some other doc snippets, see Rayne QT’d a thread which can also be seen in the comments under Feinberg’s ‘WHOA’ tweet (above).

    • Rugger9 says:

      This apparently came from some unsealed documents tied to Victoria Giuffre who was allegedly recruited by Maxwell while working at some place called Mar-A-Lago as a masseuse.

      Hmmm…. Who do we know that lives there?

        • Rugger9 says:

          I was using the official description (I think it was also in the court papers that way), but de facto, you’re right.

    • skua says:

      I’m wondering about Dershowitz’s credibility-destroying performance at Trump’s trial in the Senate, and if his performance was part of a bargain with another, more powerfully placed, user of Epstein’s services.
      A bargain in which Trump undertook to “look after” Dershowitz when the Epstein kakah hit the courts.

  14. x174 says:

    there seems to be a complicating and often overlooked factor in this whole flynn imbrolglio: his son, michael g flynn. if flynn, sr’s found guilty (again) and sentenced, will trump also have to pardon junior? if flynn somehow convinces sullivan to change his plea, will his son b/c exposed to prosecution once again? plus, boogaloo barr has made himself part of the case–potentially complicating it, along with flynn’s son, which might cause the case to stretch out for sometime, possibly until after the election, when trump and barr will be rendered impotent, assuming that the toddler-in-chief craps his diapers and full-on loses.

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