DC Circuit Sends Flynn Back to Judge Sullivan’s Courtroom

The full DC Circuit (with Greg Katsas recusing) just sent Mike Flynn’s case back to Judge Sullivan. The decision itself is not that interesting because the decision itself is a no-brainer. Flynn (and the government) have alternative remedies available to them, so they should just wait until Sullivan issues an order before seeking that remedy, if appropriate.

The most dramatic claim in the majority opinion is that the case is not moot until the government’s motion to dismiss is granted.

We also hold that the case is not moot. While the Government has filed a motion to dismiss and Petitioner (defendant below) consents, there remains a case or controversy unless and until that motion is granted by the District Court. Cf. Rinaldi v. United States, 434 U.S. 22, 31–32 (1977) (per curiam) (reviewing a district court’s denial of an unopposed Rule 48(a) motion).

The per curiam majority opinion itself is notable for the number of times it lays out ways that Sidney Powell fucked up procedurally (along with the government in some cases): First, in not objecting specifically to the appointment of John Gleeson.

The interest in allowing the District Court to decide a pending motion in the first instance is especially pronounced here, given that neither Petitioner nor the Government raised an objection in the District Court to the appointment of the amicus or more generally to the course of proceedings for resolving the Rule 48(a) motion.

Then, in not challenging Sullivan’s scheduling order as a deprivation of his liberty.

Nor did Petitioner independently challenge before the District Court or this Court the District Court’s orders or their timing on due process grounds as a clearly unwarranted deprivation of liberty.

And finally, in not presenting the harms of the process ordered by Sullivan.

And at this stage, those harms are speculative, especially when the arguments advanced here against that process were not first presented to the District Court by Petitioner or the Government.

There, and later, the panel also described that the harms that a hearing poses to the government are speculative (the kind of judgement that virtually always goes against the non-government party in an appeal).

Petitioner, likewise, argued that the District Judge might “usurp[] the power of the Attorney General to bring additional charges.” Pet’r’s Reply at 18. But those harms are speculative and may never come to pass.

If Flynn doesn’t appeal this, the opinion makes clear, Sullivan can have his hearing and then Flynn (or the government) can file a petition for mandamus.

As others have pointed out, the most important part of this decision is in Thomas Griffith’s concurrence (issued on his last day as a judge, but on the same day he issued a batshit opinion saying that Congress can’t go to court to enforce their own subpoena power). He lays out that the question before the panel is not one of politics, but instead of Constitution.

This proceeding is not about the merits of the prosecution of General Flynn or the Government’s decision to abandon that prosecution. Rather, this proceeding involves questions about the structure of the Judiciary and its relationship to the Executive Branch. There are two central problems in this case: defining the scope of the authority of the Judiciary to inquire into the exercise of a core function of the Executive and deciding how the relationship between the district court and our court shapes a challenge to that inquiry. Those questions are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree. See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). And that principled disagreement revisits a long-running debate about the relative powers of the Executive and Judicial Branches. Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic, see Judiciary Act of 1789, ch. 20, § 22, 1 Stat. 73, 84; 28 U.S.C. § 1291, and we are aware of no case in which a court of appeals has ordered a district judge to decide a pending motion in a particular way.

It’s unlikely to placate the frothers. But it might lead SCOTUS to deny any appeal.

64 replies
  1. BayStateLibrul says:

    In Re Bork Neutrality Manifesto:

    To cite Howard Zinn, “You can’t be Neutral on a Moving Train”

  2. earlofhuntingdon says:

    One of Powell’s apparently many problems is that TV lawyering – like pretending to be an informed decisive bidnessman on TV – is not the same as the real thing.

  3. Frank Probst says:

    I have a hard time seeing SCOTUS taking this case, especially after one of the judges said that even Robert Bork would have swatted this one down. While SCOTUS ultimately does a lot of legal hair-splitting in a lot of highly technical (to non-lawyers) cases, this just seems far too petty for them to take up.

    But I don’t think it’s going to come to that. I suspect Trump is going to throw Flynn a pardon sooner rather than later. There will be some crap about “Attorney General Barr has personally looked at this case and thinks it’s a hoax.”, and that’ll be it. If it goes back to Walton, and he starts scheduling things, it has the potential to blow up before the election. Trump needs this story to go away NOW.

    • DAVID Anderson says:

      But that seems to be Sullivan’s goal — he ain’t going to do Barr/Trump’s dirty work. If Barr/Trump want to reward a crony, they have tools to do so including a pardon and other forms of executive mercy but those tools come with some political costs/constraints. So if the outcome that Trump desires is his cronies get off scot free, he can take the political hit instead of the judge making a mockery of his courtroom taking the hit.

      • Alan Charbonneau says:

        Good point – let Trump take the hit. With this ruling, Sullivan keeps his integrity and maybe even gets to have his hearing (if Trump is afraid of the political consequences).

        I expected a ruling sending Flynn’s case back to Sullivan. I was quite happy to see that only Rao and Henderson were dissenting. An 8 to 2 ruling seems more definitive, even if a narrower ruling would have the same legal effect. The broad agreement on the ruling might make it harder for Trump to take action on Flynn without hurting himself politically. Maybe that’s wishful thinking on my part, but I keep looking for something positive in the era of Trump.

        • Molly Pitcher says:

          While I share your desire to revel in something that hurts Trump politically, what issue have you seen in the last 3 2/3 years that HAS hurt him politically ? Little Ronnie Reagan has been bumped off the Teflon President podium.

            • Molly Pitcher says:

              The fact that over one third of the voting public is still in his thrall, unfortunately does not require any pretending. I wouldn’t down play the horror of that statistic.

            • Yargelsnogger says:

              It’s the fact that his 43% is enough to win a rigged election that has me losing sleep. And no act, no matter how abhorrent drops him below that for more than a couple weeks.

    • Savage Librarian says:

      There will be books, though. And more books. And campaign ads. DT can’t stop the 1st Amendment. And a pardon loses the rights of the 5th, IIRC.

      • graham firchlis says:

        Lawyers please weigh in. IIRC the law isn’t crystal clear on 5th amendment scope after pardon.

        • bmaz says:

          The law is clear enough, but it is extremely fact dependent as to whether there are remaining 5th Amendment protections. This has been posted here before, use Google.

          • graham firchlis says:

            Thank you for responding.

            “extremely fact dependent” clarity. Exactly what I understood from all the discussion I could find here and elsewhere.

  4. Rugger9 says:

    So, the timeline would seem to be focusing just before the election for SCOTUS arguments if the Supremes grant cert (only 4 Justices need to agree). I think that to be quite likely but Roberts in that case will ensure arguments will be after the election. Whether Barr or DJT will let him do so is a good question since these two have been trying to close this out before November.

    • Franktoo says:

      If I understand correctly, the writ of mandamus being appealed was filed by Sidney Powell. So she controls whether an appeal will be made to the SC. Given that Flynn needs a pardon is his case is not dismissed, an appeal to the SC is unlikely to be made unless Trump approves.

      Incidentally, Powell was very complimentary about Judge Sullivan before she took the case. Daily Caller 2/16/18, https://dailycaller.com/2018/02/16/general-flynn-should-withdraw-his-guilty-plea-his-new-judge-is-a-government-misconduct-expert/

      “The judge assigned to Flynn’s case now is Emmet G. Sullivan. Judge Sullivan immediately issued what is called a “Brady” order requiring Mueller to provide Flynn all information that is favorable to the defense whether with respect to guilt or punishment. Just today, Mueller’s team filed an agreed motion to provide discovery to General Flynn under a protective order so that it can be reviewed by counsel but not disclosed otherwise.”

      “This development is huge. Prosecutors almost never provide this kind of information to a defendant before he enters a plea — much less after he has done so. This is one of myriad problems in our justice system. As Judge Jed Rakoff wrote several years ago, people who are innocent enter guilty pleas every day. They simply can no longer withstand the unimaginable stress of a criminal investigation. They and their families suffer sheer exhaustion in every form — financial, physical, mental, and emotional. Add in a little prosecutorial duress — like the threat of indicting your son — and, presto, there’s a guilty plea.”

      “Judge Sullivan is the perfect judge to decide General Flynn’s motion. The judicial hero of my book, Emmet Sullivan held federal prosecutors in contempt for failing to disclose evidence, dismissed the corrupted prosecution of Alaska Senator Ted Stevens and appointed a special prosecutor to investigate the Department of Justice.”

      “Emmet G. Sullivan is one judge who is ready, willing and able to hold Mr. Mueller accountable to the law and who has the wherewithal to dismiss the case against General Flynn — for egregious government misconduct — if Mueller doesn’t move to dismiss it himself.”

      “Judge Sullivan’s experience can only help General Flynn as more evidence appears every day to reveal that Flynn should not have been prosecuted.” (Now Sullivan asking why the DoJ is abandoning the case against Flynn.)

      Judge Sullivan is the country’s premiere jurist experienced in the abuses of our Department of Justice. He knows a cover-up when he sees one. Until the Department is cleaned out with Clorox and firehoses, along with its “friends” at the FBI, Judge Sullivan is the best person to confront the egregious government misconduct that has led to and been perpetrated by the Mueller-Weissmann “investigation” and to right the injustices that have arisen from it.” (Now Sullivan is questioning the conduct of the DoJ under Barr.)

      • bmaz says:

        Yeah, Powell is full of it. Disclosure takes place all the time. It was not favorable in this case3.

  5. Robot17 says:

    I’m still waiting for the response to Wall’s argument that a prosecutor can set up a cash register in front of the judge to accept payments in lieu of favorable treatment. This would be an ideal situation during a Trump presidency.

  6. BobCon says:

    Is there an avenue for the conservatives in the Supreme Court to stop Sullivan for a while without taking up the matter in the end? Or do they have to decide soon whether or not to allow any more turns on the merry go round?

    • BayStateLibrul says:

      I say yes. If there is no avenue, they will make one up, backed up by legal citations, etc, etc.
      They have to protect Barr who landed the plane, by creating another landing.
      Cartoonist Seuss coined the word “nerd”, my guess is they will coin a word for this four year legal dirty bomb.

    • joel fisher says:

      For whatever corrupt reason, Trump wants Barr to get Flynn off. Indeed, Flynn wants that himself to avoid the admission of guilt that comes with acceptance of a pardon. This ruling puts Trump in a bind: a hearing on Barr’s misbehavior in the run up to the election, a pardon, or a Cert Petition. I think Barr will request cert. which would have the effect of avoiding the hearing between now and 11/3.

      • bmaz says:

        Couple of things. 1) You do NOT need to “accept” a pardon, it is effective when issued. 2) Being granted a pardon does NOT constitute admission of guilt. This is old wives tale nonsense that apparently will never go away 3) I am not sure Barr is the best person to apply for cert, the real party in interest is Flynn. 4) If it is attempted, the result should be the same as the DC Circuit issued, roundly laughing them out of court. There is a right to appeal any conviction, mandamus is completely asinine.

        • BobCon says:

          Regarding #1 and #2 — dead people have been granted pardons. They definitely did not accept a pardon or admit to anything.

          At least, I hope not.

          • LeeNLP says:

            I think the idea is that pardons aren’t given out at all in the next life, and to get a pardon in this life requires full confession.

            That, or my Sunday school teacher was lying to me… :)

            • bmaz says:

              Both are as wrong and silly as could be possibly imaginable. Quit regurgitating blatantly false old wives tales.

        • Rugger9 says:

          On item #3, I would observe that AG Barr did not need to join in on the mandamus petition either but he did. I would think he would pursue this as an issue regarding what DOJ can do as opposed to Flynn’s better standing as the one in the sentencing hot seat.

          However, I don’t see Roberts agreeing to this if for no other reason than to keep powder dry to restrict President Joe on his future investigations of the DJT administration. If DOJ can do what it wants without reference to precedent and rule of law, then when Team Trump is under investigation the ability of SCOTUS, et al to say Biden is out of bounds would not fly so well.

          • bmaz says:

            No, Barr and DOJ did NOT join in Flynn’s mandamus petition. They were invited by the court to brief and argue, but not as a formal party to it.

        • joel fisher says:

          I don’t know what I was thinking; of course, it would have to be a losing party requesting review. Still, if Flynn wants to stay on the good side of the White House, he’ll want to be seen as doing what he can to keep Sullivan’s nose out of the Justice Department’s business for a couple of months and that means requesting cert. Could I ask what you think of Burdick vs US? As far as being asinine, mandamus has worked for them so far and I can think of 5 Supremes who are basically like a tiny US Senate charged with keeping Trump in the White House.

          • bmaz says:

            Burdick is an imperfect case. But at root stands for what I have said. Pardon is effective when granted. To quote the WaPo:

            But Burdick was about a different issue: the ability to turn down a pardon. The language about imputing and confessing guilt was just an aside — what lawyers call dicta. The court meant that, as a practical matter, because pardons make people look guilty, a recipient might not want to accept one. But pardons have no formal, legal effect of declaring guilt.

            Don’t fall for dicta and old wives tales.

            Also, no, mandamus has not worked so far as the DC Circuit rather conclusively established en banc.

  7. Jenny says:

    Good. Thank you Marcy.
    Let’s not forget the exchange with Judge Sullivan and Flynn from December 18 2018.
    Judge: Do you wish to challenge the circumstances on which you were interviewed by the FBI?
    Flynn: No, Your Honor.
    Judge: Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?
    Flynn: Yes, Your Honor.
    Judge: Do you have any concerns that you entered your guilty plea before you or your attorneys were able to review information that could have been helpful to your defense?
    Flynn: No, Your Honor.
    Judge: At the time of your January 24th, 2017 interview with the FBI, were you not aware that lying to FBI investigators was a federal crime?
    Flynn: I was not — I was aware.
    Judge: You were aware?
    Flynn: Yeah.

    • Joseph Andrews says:

      I have a friend. He is a good man.

      But he is terribly conservative. Without knowing it, he is kind of a fascist (using the ‘corporatist’ definition of fascist).

      He is also rather authoritarian in nature. He believes the law always matters…even if the law is ‘wrong’.

      He believes that it was proper to impeach Bill Clinton, because he lied under oath.

      I would love to have him read the post I’m responding to now.

      The post is simply wonderful.

      Exactly how would he wiggle out of this one?

      And how has Bill Barr, exactly, wiggled out of this one?

      That the entire investigation of Flynn was…what…unauthorized? Unnecessary? Illegal?

      My God I fear for the future of democracy in my country (the USA).

      Thanks for reading.

  8. ThoughtMail says:

    Rao J., in the first instance (of mandamus), seemed to be arguing mostly in response to the dissenting opinion, rather than on the merits of mandamus. This time, in dissent, she’s arguing the merits (for the government, mostly; not the appellant), all while, in a portion of her judgment, trying to relitigate the case below.

    Much of that seems to indicate an unfocused mind, tilting at windmills, kicking the cat wildly, swinging and missing …

    The dissenting opinion seemed more convoluted and tedious (longer; it took more concentration to follow). She still hardly spoke to the three-prong (particularly, prong 1) test for mandamus. Much of it was merely “interesting”; hardly seemed dispositive.

    One would hope that, if her opinions are beat down enough, she will learn to focus on a through-line.

  9. Rugger9 says:

    OT but it might be yet another reason for the USPS sabotage: it has been reported in the Military Times with some analysis by Digby that DJT is trailing Biden in the military vote when in 2016 they went ~2:1 for DJT over HRC. This is what bounties will do and generally shoddy treatment between COVID and giving a damn about the troops beyond photo ops. Servicemembers figure that out very quickly, and many ambitious officers have had their careers derailed when the enlisted figured out they were merely props. Biden on the other hand clearly shows he does care, and not just because his kids served (which neither DJT or his spawn have done) and that resonates well.


    Also OT, it seems that the DCC has decided that McGahn cannot be subpoenaed because “reasons” in a 2-1 split decision (Henderson and Griffith). Actually, the majority ignored the Constitutional question of absolute immunity and said it was because no law had been passed to allow the investigation (since when did that become a prerequisite for a Congressional review, or was BenghaziBenghaziBenghazi also illegal besides being just BS?). Let’s see if RoJo applies this to his Burisma snipe hunt or AG Barr to Durham’s “investigation”. Rogers said no, the subpoena power is inherent in Congress’ oversight role spelled out in Article I and that absolute immunity was not anywhere in the Constitution. Let’s hope this ruling goes en banc as well, but IIRC wasn’t the WH and GOP argument about impeachment being too much of a hammer predicated on the fact that Congress could always subpoena someone to get their information? The ruling is embedded here (21 pages).


    • P J Evans says:

      I took a minute to read 2 USC 192, the one about penalties for ignoring congressional summonses. IANAL, so I don’t see how Griffith & Rao got that decision: the law seems pretty clear.

  10. Rapier says:

    Griffith’s batshit ruling is of greater importance. That is since there is no law requiring congressional subpoenas to be complied with they don’t have to be. This fits perfectly into thoughts I have been having about the fact that many many things that are unconstitutional are not actually illegal, if you get my drift.

    Is there a law that says the President can’t cancel an election? Let me guess no. Who even has standing to challenge a canceled election? Maybe the SC would allow a challenge from somebody. Hell in a year or two they might decide the canceled election was wrong and unconstitutional. Not that they could do anything about it so we could wait for the next one. No penalty involved since no law was broken

    • Super Nintendo Chalmers says:

      However. The terms of the Presidency are spelled out in the Constitution. The term ends at Jan. 20 at noon. Period. If there’s no election or it’s delayed to the point that the EC can’t be Safe Harbored (an issue in the one-off of Bush v. Gore), than Nancy Pelosi becomes POTUS.

      But, but, but what if she isn’t reelected? The Speaker does not have to be a member of Congress, and since no new speaker had been appointed, she remains Speaker.

      • BobCon says:

        To be fully accurate, a speaker will be chosen when the House reconvenes January 3, 2021, 2 1/2 weeks before the presidential inauguration. It’s true that in highly unlikely event of a Pelosi loss in November the House could still choose her as speaker, but if Pelosi loses, odds are that something very bad has happened.

      • earlofhuntingdon says:

        Nancy Pelosi occupies one of the safest Democratically-controlled seats in Congress. She will win and be re-appointed as Speaker.

        • Arthur M. says:

          I found an article from the early 20th century (approx. 1912) on the newspaper archive, I’m sorry to not have the specific source handy, one of the investigators of the 1876 presidential election summed up what had happened succinctly as: “One party stole the election and the other party stole it back.”

        • Marinela says:

          I would like to see Katie Porter as speaker.
          Young, poised, capable, smart, no baggage, incorruptible.

    • Rugger9 says:

      Your point about a law being a prerequisite is important and as I noted before would theoretically apply to Benghazi and HRC emails and Sen. RoJo as well as Durham’s snipe hunt for subversives.

      As a practical matter, what POTUS will ever sign such a bill into law, and what Congress would override such a veto on a 2/3 vote, especially these days? The judges set an impossible standard here.

  11. Super Nintendo Chalmers says:

    Seems to me that the DC Court of Appeals just laid out the grounds for a malpractice suit against Powell. #Irony

  12. earlofhuntingdon says:

    Bill Barr is cleaning house again. He has apparently let go a career lawyer and long-time principal deputy assistant AG, Brad Wiegmann – part of the National Security Division. Wiegmann’s office is responsible for overseeing other government departments’ counter-terrorism and counter-intel activities. Barr replaced him with Kellen Dwyer, a Yaley with an underwhelming-for-the-job ten years of experience in securities and corporate litigation. Loyalty to me, chaos for thee.


    • Rugger9 says:

      These are minders in the old Soviet sense. Competence isn’t the idea, the purpose of these commissars is to report back to AG Barr if any unauthorized investigation is going on.

    • earlofhuntingdon says:

      Principal Deputy Assistant Attorneys General are the work horses of the DoJ. They are the senior career lawyers most employees know best. Their personal leadership shapes the department. They do and provide oversight of the bulk of the department’s work.

      in making this late-inning change, Barr is protecting Trump by disrupting an important counter-intelligence office’s work, regardless of what it was – or might have been – working on. He is also disrupting the DoJ in general, which is what every mobster would like to do to his host country’s department of justice.

      • Rugger9 says:

        I do not doubt your point about the normal purpose of these positions, but the WH does not care about competence, just loyalty and this is a standard Soviet practice to ensure that any disloyal behavior is detected immediately and punished. I’m surprised it has taken Barr this long to purge like he has.

        • earlofhuntingdon says:

          Trump wants what he wants when he wants it. His horizon might reach the end of his nose. Bill Barr and others who implement Trump’s demands do not operate with the same infirmity.

          It’s not an either/or choice. These objectives, and similar ones, are consistent: Barr wanting to put an inexperienced loyalist and mole in charge of a DoJ counter-intel office; his need to disrupt that office’s work, directly and indirectly; and his aim to make the DoJ less able to do its work, generally, and to follow Trump – and Barr – after they leave office, in particular.

          Another background objective that Barr, like BushCheney, pursues is to build the resumes of the inexperienced people in their patronage network. It’s why BushCheney, for example, named Brett Kavanaugh to the DC Circuit. He was not qualified for it, but the job set him up for his later promotion, under a successor Republican, to the Supremes. Dwyer fits a similar profile.

          • Rugger9 says:

            Add to that the Bushies burrowed in under civil service rules and your point makes the case to not “look forward” this time.

            • drouse says:

              One of the only practical uses of the Hatch Act seems to be that violations can be used as cause for termination. Remember that Conway was recommended to be fired even though Trump of course didn’t. Maybe a little scrutiny to see if they were acting for the reasons they were put in place for.

          • Ginevra diBenci says:

            Thanks, EOH, for bringing this underhanded Barr personnel move to our (or at least my own) attention. I was distracted by the pageant in Kenosha yesterday that had Barr sitting at Trump’s left hand, Lucifer-fashion, where they decried “violence” against buildings–while not so subtly encouraging the murder of persons.

  13. N.E. Brigand says:

    I was just reading a tweet today by Andrew McCarthy in which he refers to a “National Review” article from two weeks ago in which he correctly predicted that Flynn would lose this particular appeal but also said that Flynn will “eventually prevail … because he has an ace in the hole: If all else fails, the president will pardon him.” Nobody seems to doubt that is the likely final outcome, but to me that comment reads like an admission that McCarthy, who thinks that Sullivan was wrong to even undertake the process of getting the government to explain itself, isn’t very confident that the courts (at whatever level) will ultimately agree. That said, while I disagree with McCarthy, that Aug. 15 article is generally restrained, perhaps because he just couldn’t ignore the points the en banc judges had made in the hearing.

    But what really struck me was the anguished character of the replies to McCarthy’s tweet, at least 90% of which are very pro-Flynn, many of which see the appeals court as part of the “swamp,” and not a few of which hint that hidden forces are working behind the scenes to pressure these judges to do their bidding.

    And then I saw the portion of Donald Trump’s new Fox interview in which he says that Joe Biden is being controlled by “people that you’ve never heard of, people that are in the dark shadows … people that are controlling the streets.”

    It’s often said that every wild allegation Trump makes is a confession. I wonder who he’s really thinking of.

    • madwand says:

      Agree, Trump is very good at doing exactly what he accuses others of doing. He also believes if you just keep saying it then people will believe it. While that applies to the base, it doesn’t to the rest of us.

  14. Curveball says:

    The Supreme Court sped up consideration of emergencies claimed by the Trump Administration and slow-walked others that bode ill for the president. So here we are a couple of months before the election and the drain is swamped.

  15. The Old Redneck says:

    I don’t see this one going to the Supremes.

    John Roberts in particular probably has no appetite for taking this case. He is concerned about preserving the institutional prestige and credibility of the court. You don’t do that by agreeing to take on a political hot potato on the eve of an election.

    And the actual basis for the decision – that appeals should happen after decisions are made, not before – is a bedrock principle accepted by the entire legal community (except Sid Powell, that is). There is no “unsettled law” for them to settle.

    If Powell appeals it, I’m predicting they quietly deny cert. Then they all breathe a sigh of relief when it vanishes from the news cycle.

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