Thursday, June 25, 2020

A user-friendly analysis of Rao's Flynn opinion

Andrea Widburg has an outstanding, detailed, yet reader friendly explanation of Judge Rao's opinion yesterday, granting Flynn's petition for a writ of mandamus--ordering Sullivan to dismiss the case against Flynn:

A user-friendly analysis explaining why Flynn’s case got dismissed

Because the article is so detailed it's impossible to summarize it fairly. Rest assured, however, it's very accessible. One aspect that Widburg concentrates on is Rao's "brutal takedown of Wilkins' silly reasoning" in his dissent. It takes seven points to plumb the silliness of the dissent.

Widburg considers an en banc review of the decision unlikely, due to the very detailed and tightly reasoned nature of Rao's opinion.


  1. Thanks for all your insight.

    What does it mean when they say, "Judge Sullivan has stayed all deadlines and the July 16, 2020 hearing date in the Flynn case."

    Is there a layman's version of that?

    1. It just means everything is put on hold, pending one of two things:

      1) dismissal of the case, or

      2) further appeal (en banc).

      In the meantime, no briefs filed (by Gleeson) and no hearings (by Sullivan).

  2. Mark, is there a time limit on this?

    1. I'm no expert in these things, but it appears there's probably a 14 day limit to request en banc review in a criminal case, per the Fed Rules of Appellate Procedure:

      Rule 35(c): ... A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing.

      Rule 40(a)(1): Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment.

  3. Shipwreckedcrew has felt the need to come out with yet another piece on Rao’s order:

    udge Rao Got It Right Based On Separation of Powers
    There has been some critical comments around the internet about the majority opinion by Judge Rao, in which it is said that she stopped Judge Sullivan from having a hearing on the DOJ motion to dismiss the case against General Flynn, and then asserted a lack of evidence of wrongdoing as a basis to direct Judge Sullivan to to dismiss the case — when the hearing she won’t allow is the vehicle for developing the very evidence she says he needs.

    Understanding — maybe or maybe not — that such an argument skips right over the reasoning why a hearing is not allowed, while only lamenting about that fact that a hearing is not being allowed, some who are advancing this line of “thinking” are posing hypotheticals about how far advocates of a broad “separation of powers” argument would be willing to go to use it as a “shield” to insulate Executive Branch — cough “Bill Barr” cough — decisions from judicial scrutiny.

    How about this answer — as far as the Supreme Court has held that we must go in order to preserve the constitutional framework that rests on the principle of mutual respect and comity co-equal branches of government must afford each other with regard to decision-making which the framework places within the authority of one branch, and sheltering that decision-making from examination or second-guessing by another branch of government that might seek to impose its own views.

    More here:

    1. Those arguments are from Lefties and shipwrecked is right that they "skip[] right over the reasoning why a hearing is not allowed"--which is a separation of powers reason.