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Thursday, May 21, 2020

UPDATED: Overall Looks Like A Favorable DC Circuit Panel For Flynn

The three judges who are handling Powell's Petition for a Writ of Mandamus are:

Neomi Rao - Trump; notable:

In an October 11, 2019, opinion of a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, Rao was the dissent in a 2-1 ruling to affirm a district court ruling supporting a congressional subpoena for President Trump's records from accounting firm Mazars USA LLP. Her opinion stated, "allegations of illegal conduct against the president cannot be investigated by Congress except through impeachment."

Karen LeCraft Henderson George H. W. Bush; notable:

In February 2020, Henderson joined the opinion of Circuit Judge Thomas B. Griffith when the majority held that the United States House Committee on the Judiciary could not enforce a subpoena upon President Trump's former White House Counsel, Don McGahn.

Robert L. Wilkins - Obama


Sullivan has ten days to respond to Powell's petition. Sidney Powell comments: "The short time-table recognizes the seriousness of the issue to the proper administration of justice." Also, note that the court specifically invites a response from the government.





UPDATE 1: shipwreckedcrew:

In more than 30 years of practicing law, almost exclusively in federal courts, I have never seen a federal appeals court direct a district court judge to personally respond to a litigant’s motion, petition, or appeal.


Flynn was fortunate to draw the panel he did. It consists of Karen LeCraft Henderson, a Bush 41 appointee, Naomi Rao, a Trump appointee, and Robert Wilkins, who was appointed by Obama.
That panel’s order is “per curiam.” There is no indication that Judge Wilkins disagreed with it.

Hans Mahncke:

Hans Mahncke
@HansMahncke 
The D.C. Circuit just asked Sullivan to answer this exact question, i.e. on what basis does he claim to have discretion not to dismiss? He could have asked the parties to write briefs. Now he's been ordered to do it himself. 
Quote Tweet

Hans Mahncke
@HansMahncke
 · May 13
The only legitimate question that Sullivan can ask is whether he has any discretion not to dismiss? That’s it. If he thinks he might have some discretion then he should either figure it out himself or ask the lawyers to write briefs. Instead, he’s allowing the mob to smear Flynn. 
5:51 PM · May 21, 2020

If you can't get enough of this: https://www.pscp.tv/w/1gqxvEQAMmnJB

UPDATE 2: Here's the unrolled thread by John M. Reeves that commenter EZ pointed to. Very thorough explanation:

https://threadreaderapp.com/thread/1263588369918906373.html

22 comments:

  1. Very detailed analysis of the Appellate Court's Order:

    >> https://twitter.com/reeveslawstl/status/1263588369918906373 <<

    Short version: Appellate Court is none too pleased with Sullivan's stunt.

    I would add: the fact that the Appeals Court is ignoring Powell's other arguments, re: Amicus briefs, and reassigning the case, appears to bode very well for Flynn; it suggests the Court is likely to grant the request to ORDER Sullivan to accept DOJ's motion to dismiss, because in so doing, it moots Powell's other issues, and thus the Appellate Court does not need to rule on them.

    It looks like the circus is about to leave town.

    ReplyDelete
  2. If Sullivan's response does make some dent, would the Circuit seek a response from Powell, or could they just move straight to a ruling vs. Flynn?

    ReplyDelete
    Replies
    1. Court's can always ask for "additional briefing" on some issue. Here, however, the law is very clear.

      Delete
  3. At New Neo's site
    https://www.theNewNeo.com/2020/05/21/judge-sullivan-ordered-to-respond-to-write-of-mandamus/#comment-2495762 , reader Snow on Pine guesses that
    "I expect Sullivan to appear to seemingly comply with the order, and to give some BS answer, but, actually to set up a situation in which the court has to **remove him**, and, then, he can **play the race card, etc.**, and count on the backing of the MSM and the Left/Democrats."

    ReplyDelete
    Replies
    1. I think NewNeo is totally wrong.

      Delete
    2. You may be right, Mark, but that is in a sane world, None of this is sane.

      - TexasDude

      Delete
    3. To correct the record, this was reader Snow on Pine, not Neo herself.

      Delete
  4. It would be nice to see a 3-0 ruling in favor of granting the writ if it goes that way. For once, it would be nice to see judges being judges rather than politicians. But the draw of the particular panel of appellate justices certainly did not hurt Flynn.

    ReplyDelete
    Replies
    1. Since a 3-0 would include the black judge Wilkins, any plays of the race card would be long shots.
      The fact that this order was “per curiam”, and issued just *days* after Powell's bid was sent, bodes well for her case.
      The Court could've dogged this, but (pointedly?) chose to expedite.

      Delete
  5. Not on topic

    Just read this: https://www.breitbart.com/2020-election/2020/05/21/report-karl-rove-advising-trumps-reelection-campaign/

    Very depressing. Snatching defeat from the jaws of victory.

    Trump really needs to send Jared to Kazakhstan or some other 5th world communications black hole to supervise the building of a golf course, or something equally pointless, at least until after the election. His children are all first echelon Cloud tribe and will never get it.
    Tom S.

    ReplyDelete
    Replies
    1. On whose authority is this happening?

      A report on an article that you cannot view unless you pay?

      Betcha that article uses anonymous sources.

      There has been a vast effort spent in conjunction with illegally overturning a valid US election to cause or make the appearance of strife and discord within Trump’s family.

      - TexasDude

      Delete
    2. Even worse, the Brietbart “news” article links to a tweet by NYT’s Maggie Haberman, Yeah, she won a Pulitzer for her “reporting” on the Russian connections between Trump’s advisers and Russia.

      - TexasDude

      Delete
  6. An odd question: if the Appeals Court 3-judge panels rules in favor of the Writ of Mandamus after reviewing Judge Sullivan's response, does Judge Sullivan (or more properly his Court) have standing to appeal the Writ to the Appellate Court for en banc consideration?

    ReplyDelete
    Replies
    1. Although I really haven't a clue, it seems problematic. The judge, after all, isn't a party to the case so it would seem he'd have no standing to appeal.

      Delete
    2. I think this is right- no standing to appeal.

      Delete
  7. Related:

    >> https://pbs.twimg.com/media/EYpRFKHXkAEsNHg?format=jpg&name=large <<

    FBI referring Jensen info re: Flynn investigation to internal Inspection Division.

    Buried in the memo is a gem: "Mr. Jensen's investigation will continue to take priority."

    IOW, Jensen isn't finished! DOJ dropping the case is just step #1.

    This is consistent with the hypothesis that Jensen will follow-up with prosecutions of those who broke laws in the Flynn investigation/persecution, if the evidence is sufficient. Farming that out to Jensen frees up Durham to focus on the core conspiracy/Obstruction charges on the main Coup co-conspirators.

    ReplyDelete
    Replies
    1. Of course he's not done. As I've been saying, the Flynn case takes Durham (and now Jensen) into the heart of Team Mueller. And that's where Durham badly wants to go, or I've misunderstood something.

      Delete
    2. Shipwreckedcrew's take:

      >> https://twitter.com/shipwreckedcrew/status/1263916991942848512 <<

      Delete
    3. Right. Total no-brainer. That's not a criticism of shipwreckedcrew, but of the knee-jerk anti-Barr/Durham people.

      Delete
    4. OTOH, his views on FBI's Inspection Division are, um, a bit naive.

      Delete