Emmet Sullivan’s “Appropriate Dispatch” May Extend past November 3

As noted, yesterday the DC Circuit rejected Mike Flynn’s request that they order Judge Emmet Sullivan to grant the motion to dismiss requested by the government. While the per curiam opinion deferred to Sullivan to resolve the motion to dismiss and left him on the case, the last line of the majority opinion ordered Sullivan to hurry things along.

As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.

Today, in an order effectively written immediately after the Circuit Court order, Judge Sullivan instructed the two sides to resume the process he set back before Flynn moved for a writ of mandamus.

In light of the Opinion and Order issued by the Court of Appeals on August 31, 2020 and Circuit Rule 41(a)(3), which states that an order denying mandamus relief “will become effective automatically 21 days after issuance in the absence of an order or other special direction… to the contrary,” the parties are directed to file a joint status report with a recommendation for further proceedings by no later than September 21, 2020. The parties’ joint status report shall propose a briefing schedule regarding the deadlines for (1) the government and Mr. Flynn to file any sur-reply briefs; and (2) the government, Mr. Flynn, and the Court-appointed amicus curiae to file a consolidated response to any amicus brief of non-Court-appointed amicus curiae. It is FURTHER ORDERED that the parties shall propose three dates and times to hold oral argument. If the parties are unable to agree on a joint recommendation, the joint status report shall include each party’s individual recommendations.

In legal terms, the order requiring a status report on September 21 is also an immediate action. Circuit Court orders don’t go into effect for 21 days, in part to give the parties an opportunity to appeal. So Sullivan couldn’t require any action before September 21. It asks the parties to act immediately.

But it might well stretch past November 3, in any case. At the very least, it might force Billy Barr’s DOJ to explain why they lied to Sullivan to justify blowing up the prosecution of a guy who lied for Trump’s benefit during the last weeks of the election season.

Back when Sullivan laid out the process that the DC Circuit just let him continue on May 19, he gave amicus John Gleeson 21 days to file his opening brief, then a week for each response, with a surreply granted to Flynn and the government from the start.

MINUTE ORDER as to MICHAEL T. FLYNN granting 209 Motion to File Amicus Brief. The following schedule shall govern the proceedings in this case subject to a motion for reconsideration, for good cause shown, filed by no later than 12:00 PM on May 26, 2020: (1) the Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020; (2) any motion seeking leave to file an amicus brief by non-Court-appointed amicus curiae shall be filed by no later than 12:00 PM on June 10, 2020; (3) the government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae by no later than 12:00 PM on June 17, 2020; (4) the Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020; (5) the government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020; and (6) the government, Mr. Flynn, and the Court-appointed amicus curiae shall file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020. Movants seeking leave to file an amicus brief are HEREBY NOTIFIED that the Court will deny any motion for leave to file an amicus brief that fails to strictly comply with the applicable Local Rules. It is FURTHER ORDERED that the Court schedules oral argument for July 16, 2020 at 11:00 AM in Courtroom 24A.

The initial briefs have been submitted, and Gleeson completed it, but did not submit it because it would have been posted on the day Neomi Rao initially upheld Flynn’s petition for a writ.

So Gleeson could presumably submit his reply brief on September 21, and the government and Flynn could — and presumably would want to — submit their surreply two days later, on September 23.

But Sullivan also included time in the original order for the two sides to reply to the other amicus briefs (some of which support Flynn and the government). He originally provided 8 days for that to happen, or 6 after the surreply.

If the parties used the same amount of time, it would put that deadline on September 29.

But — again, according to the original schedule — the hearing would not have happened until two weeks later. According to this schedule, that would put any hearing on October 13. That would put the hearing just three weeks before the Presidential election on November 3, lightening fast for the kind of meticulous opinions Sullivan has written earlier in this case.

By all appearances, Sullivan is responding with appropriate dispatch, as ordered by the Circuit, implementing his prior schedule on the quickest possible track given the earlier deadlines. But appropriate dispatch might still drag this thing out until it becomes clear whether Donald Trump will remain President.

[In parallel news, the Second Circuit has issued a stay on Cy Vance’s subpoena for Trump’s tax returns, and that is virtually guaranteed to drag out past the election as well.]

24 replies
    • David Anderson says:

      Yes he can, but Sullivan’s pace can force Trump to take the political hit of a pardon before the election. That, to me, seems to be Sullivan’s underlying goal; not to make his courtroom a mockery of justice in the course of a farce being directed by an angry little corrupt man.

    • earlofhuntingdon says:

      Trump can do that at any time during his normal term as president. But without a sentence, Trump is forced to issue a “pardon” rather an a “commutation.” As we’ve often noted, that leaves Flynn no Fifth Amendment right to refuse to answer later questions. At a minimum, refusal would be civil contempt. That exposes Trump, should Flynn disclose information has hasn’t shared earlier, which might incriminate Trump.

    • Saintpatrick says:

      “… a guy who lied for Trump’s benefit during the last weeks of the election season.”

      Am I wrong that any lie that Flynn is accused of took place well after the election was complete?

      • bmaz says:

        This is a bullshit trolling question. The only lie Flynn was charged with is but one of a boatload of criminal conduct and charges he could have been, and should have been, charged with. Because he entered a cooperation plea to a single count to avoid all the charges from the other relevant conduct in no way ameliorated his other relevant conduct. You can start with the Turkey material.

        You are new here, clearly have not read along from the start and do not have a clue about the actual facts. Don’t bring that weak ass shit where people know what they are talking about and you either do not or are being duplicitous.

        • Marinela says:

          The fact Flynn didn’t hold his side of the plea agreement, could the prosecutors actually charge him for the other relevant conduct?
          This makes Bill Barr’s intervention even more suspicious, as he not only let the prosecutors do their job, he shortcut them and reversed or attempted to reverse all the prior prosecutors work.
          Maybe this is oversimplifying what is going on, but it looks fishy.

          Hoping Sullivan can get to the bottom on why Bill Barr’s DoJ reversed itself, as a public service.

        • bmaz says:

          That is a great question. The answer depends on a lot of factors. The first of which is what Sullivan does with this single count plea. If the plea maintains and he is sentenced on it, it makes further prosecution much less likely. However, if the case is dismissed as a nullity, it would look different. But keep in mind that most of the possible counts have a five year statute of limitations (there are permutations that might allow longer ones if framed in conspiracy), so my guess is there is little chance of further prosecution.

        • joel fisher says:

          But didn’t Flynn do a shit ton of lying both to the Mueller team and to Sullivan? And didn’t all this take place in 2017 and 2018? After 11/3 either way it comes out, clemency will be the order of the day so you will be right: no prosecution.

      • emptywheel says:

        Sorry, the syntax of the sentence is not that clear:

        “it might force Billy Barr’s DOJ to explain [why they lied to Sullivan to justify blowing up the prosecution of a guy who lied for Trump’s benefit] during the last weeks of the election season.”

        That is, Barr might have to explain this before the election.

        • joel fisher says:

          Doesn’t a cert petition on 9/21 gum up the works for long enough to get Barr’s explanation off the front page until after 11/3? Seems likely to me.

  1. Molly Pitcher says:

    re: Parallel News, IF Trump wants to debate Biden, he should have to release his taxes first.

    Biden should stick to his guns on this one.

      • Molly Pitcher says:

        All the more reason to insist on the tax release as a prerequisite. Might as well box Trump into a corner by his own intransigence. It’s a no lose situation for Biden.

        He either gets the taxes and an opportunity to call out Trump and his lies to his face, or he highlights what a gutless coward Trump really is; too afraid to debate and too crooked to let the world see his taxes.

        • earlofhuntingdon says:

          “Gutlessness” is in the eye of the beholder. If there’s nothing to behold, it’s a hard sell. In an election, I’ll take imagery over the absence of imagery. Besides, establishment Dems do not have their hearts in it when it comes to calling out the frailties of other establishment figures.

          A debate, OTOH, is full of imagery. It’s SAD for Trump that its imagery is built around answering questions without a teleprompter or script person. It requires preparation – or understanding what Stephen Miller might be shouting into his forbidden earpiece. Trump is really bad at that. The Apprentice was built, for example, around editing hundreds of retakes and do overs. A debate would deny him that. Trump gets visibly angry and fidgety when he knows he’s losing. It might even drive him to walk off the stage, which would be terminal for his campaign.

  2. subtropolis says:

    And they have no one to blame but themselves for this delay.

    I find it really strange that he hasn’t pardoned Flynn, especially after Sullivan’s refusal to roll over for Barr. He cannot be concerned about “taking a political hit” for doing so. This guy?

    • Rugger9 says:

      I scratch my head about that as well. Why would DJT have this one scruple and trample every other norm especially considering that this doesn’t involve money as far as we know?

      It could be to test options, but given what Flynn has allocuted to repeatedly, I find it strange that he would use this case as his trial balloon instead of something a little less clear cut with respect to Flynn’s guilt.

    • AndTheSlithyToves says:

      In addition to the ongoing Trump Crime Family grift, there’s always and forever Trump’s bigoted sentiment underlying his every action. You can’t let some Uppity Negro judge having the last word on wonderful, beautiful, loyal Mike Flynn.

  3. BayStateLibrul says:

    What is the penalty for Barr’s lying? Disbarment, election to the Opus Dei Hall of Fame, one year contract with Fox News as a legal consultant, a Wall Street opportunity to start Billy Barr LLC, a legal hedge fund manager that advises company on selective disclosure, how to outsmart the SEC, and the importance of hiding all legal communications with investors.

    • bmaz says:

      I don’t know how to say this yet again, and strongly enough, NO there will never, ever, be any significant bar action against Barr, much less “disbarment”. People need to understand the insulation DOJ attorneys as a whole get, much less the Attorney general. This will NEVER happen. Never.

      • BayStateLibrul says:

        I’m an auditor. There has to be a remedy.
        Maybe, in his obit, they will put in “disgraced Attorney General?
        Can’t he join John Mitchell as the second AG to go to jail.
        Mitchell’s “failure to tell the truth” resulted in 2 1/2 to 8 years in the slammer.
        Barr is a dour, non-pipe smoking, worse than Mitchell, “wish you would go to Hell” AG

        • bmaz says:

          I don’t disagree about your characterization at all. But is he going to ever go to jail? No. Nor will he ever be substantively sanctioned by any controlling bar authority.

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