Grounds For Cautious Optimism After The Oral Arguments?

I want to point to an overall excellent article by shipwreckedcrew, reprising the oral arguments regarding the Flynn/Sullivan mandamus petition: Analysis of Oral Argument In The Circuit Court of Appeal in Flynn Case — Flynn Wins. I won't try to build suspense. Shipwrecked basically says that Henderson--the senior judge on the panel who will write the opinion--is looking for a way to allow a 30 year colleague (Sullivan) to save face. Shipwrecked thinks he knows how she'll do that.

However, the article is more than that. It provides insights into the dynamics among the various players involved, explaining how it all works. He also sheds some light on the central issues. So here are a few excerpts:

The fact that Judges Henderson and Wilkins have both served as district court judges — the trial courts in the federal system — was a significant factor in their attitudes in my  view.  As noted, Judge Wilkins was for four years a colleague of Judge Sullivan on the DC District Court bench.  But given that both Judge Henderson and Judge Sullivan have been part of the DC Circuit as judges for more than 30 years, there is no doubt in my mind that they are close colleagues as well.  Judges of the various circuits get together at various types of professional events on a regular basis.  It is a small “club” that they are all members of, and close personal bonds often attach. It’s famously known that among the Justices who the late Antonin Scalia was closest to was Justice Ginsberg.  The friendships cross all political boundaries. 

Appellate judges go to great lengths to not needlessly embarrass their trial court colleagues in the district courts.  So I think there is little or no chance that this panel will issue any ruling that questions the integrity of Judge Sullivan in what he proposes to do — and what he has done so far.

Shipwrecked then makes an important point--and it's one that's very commonsensical. After all, it's not as if judges don't have pretty developed views on a case when they decide to take it up:

But I think Judge Henderson’s hand-wringing might not have been as earnest as she made out.  The issues she raised were all obvious on the day Gen. Flynn’s attorneys filed the Petition.  Nearly all petitions of this type are summarily denied by appeals courts without them ever seeking briefing — much less an oral argument — from the parties.  And asking Judge Sullivan to personally respond to the Petition is nearly unheard of.  So if Judge Henderson was really convinced that “regular order” should prevail, and Judge Sullivan should be allowed to finish the case in a manner informed by his 36 years experience as a district court judge, she could have allowed that to happen simply by voting to deny the Petition after it was first filed.  But that didn’t happen.  Instead the parties were ordered to file briefs, and Judge Sullivan was ordered to respond.  Today nearly two hours of oral argument took place when only 45 minutes were scheduled.  And Judge Henderson agreed with Dep. SG Wall when he observed at one point that nothing about this case in the lower court could be considered as having proceeded according to “regular order.” 

... 

The heart of the Petition is Gen. Flynn challenging Judge Sullivan’s “inaction” — his refusal to rule on the motion forthwith — which is somewhat unique.  ...  No one had asked to have Judge Sullivan’s orders overturned — only that he be directed to do something he just hadn’t done yet, which was to rule on the DOJ motion to dismiss.

From a legal standpoint, I think that puts a lot of this in perspective. Sullivan's unique refusal to act could not possibly have been somehow missed by the CA judges.

Shipwrecked goes on to point out how effective Neomi Rao--a longtime professor of Constitutional law--was in grilling Beth Wilkinson, Sullivan's lawyer, and how ineffective Wilkinson's responses were. Again, that could not have been missed by Henderson.

Judge Rao ... asked the most “interesting” legal questions of both sides.  She asked Beth Wilkinson, the attorney for Judge Sullivan where the standard “clearly contrary to the public interest” came from since it’s not in the text of Rule 48(a)?  She asked why wouldn’t the Executive, a branch politically answerable to the voters/public, be the better choice to determine the “public interest” since they are accountable, unlike an Article III judge appointed for life.   That was a great question, and Wilkinson could offer no meaningful answer.  Judge Rao wondered that if the standard is really unknown, why should the appeals court sit back and let Judge Sullivan conduct this wide-ranging inquiry in the face of the serious “separation of powers” issues the government has raised?  What about the damage to separation of powers that flows simply from the fact that Sullivan conducts the inquiry, separate from what his ultimate decision might be.  She seemed to be really setting the table for an effort to define more precisely what the scope of Judge Sullivan’s review can legitimately be — with her view likely to be its far more circumscribed than that which he seems to have in mind. 

Judge Rao also asked some tough questions of Wilkinson about the DOJ position that there is no longer a “case or controversy” when the government and defendant in a criminal case both ask that the case be dismissed, and about what purpose was served by Sullivan appointing an amicus counsel to “oppose” the DOJ motion on behalf of nobody apparently.   Wilkinson struggled to formulate a coherent response, and Judge Rao observed that in a criminal case there are just two sides, and when those two sides’ interests are aligned, who is the judge seeking representation on behalf of when he appoints an amicus counsel? 

Finally Judge Rao asked what was the countervailing interest of the Article III judiciary in denying an unopposed motion?  What interest does the Judiciary have that it is seeking to vindicate by not allowing the parties, by mutual agreement, to end their legal dispute?  This came right at the end of Wilkinson’s time, and she offered no real meaningful response.

Henderson was sitting there, listening to it all.

Shipwrecked takes out after Wilkins a bit, and here's the first part of that:

One final note — I thought it was disgraceful of Judge Wilkins to introduce, and then return multiple times, to a [racially based] hypothetical question he posed to Dep. SG Wall about a situation where DOJ might move to dismiss a prosecution of a white police officer charged with beating a black suspect, where the motive for the dismissal might be the racist belief that a white officer should not have to face charges for beating a black suspect.

He's right about this, and adds more. However, I was a bit surprised here--as with other commenters--that he didn't point out the really stunning suggestion that Wilkins was making, as I understood it. In my understanding, what Wilkins suggested was this: A District Court judge who disagrees with a dismissal, who thinks the government should be prosecuting a given defendant, should be allowed to refuse the motion to dismiss and thus allow the pressure of public opinion to coerce the government into appointing a prosecutor who would prosecute the case. The opportunities for really serious abuse under such a rule are mind boggling--there's no other way to put it. This would be progressive deconstruction of the rule of law into virtual mob justice.

But, says shipwrecked, Henderson got to the heart of what she probably wants to do at the very end:

Finally,  I think Judge Henderson showed her cards with her very last question posed to Dep. SG Wall at the very end of the hearing.  She prefaced the question by saying that she wanted to ask about something not raised in the briefing — which is unusual.  She said that it seems to her that the “misconduct” by DOJ that is reflected in the motion seemed to be misconduct in the past — which I took to mean a reference to the SCO’s handling of the matter.  She said that when that is the case, is there any purpose served by the Art. III judiciary standing in the way of the Art. II Executive’s effort to “self-correct” its own prior misconduct. 

I tweeted that that moment “There it is.  HENDERSON GETS TO IT AT THE VERY END.”

Yes. Henderson clearly signalled that she was fully aware of the outrageous misconduct, the travesty of justice, involved in the persecution of Flynn and--if shipwrecked is right--assigns the blame to Team Mueller. Rightly so. She really does seem to get it. Shipwrecked then speculates on what Henderson could do to square the circle:

I think she set up two moves on her part with her statements and her questions, and not wanting to be needlessly critical of Judge Sullivan.  She hid her play by holding this to the very last moment.  As the most senior Judge in a 2-1 decision with Rao, she will write the opinion.  I think she’s going to say the standard to guide a district court’s Rule 48(a) inquiry is not defined, and Fokker Services deals directly only with Speedy Trial Act motions so it is only instructive, not binding.  She’s going to then point to a lot of case law that says “In no circumstance is it appropriate for a district judge to substitute his veiw of the “public interest” for the view expressed by the Executive in ruling on Rule 48(a) motions.  There is other case law saying that the government need not “prove” its justification to the satisfaction of the court.  The limit on whatever discretion is given to a judge by the “leave of court” language is most restrictive when dealing with unopposed motions since the only two parties to the proceeding are asking for the same thing.  I think she’ll say when the Exec. sets forth in the papers that the motion is intended as a form of “self-correction” for prior investigative or prosecutorial errors, there is little or no grounds for an Article III court to place any other considerations ahead of that expression of the “public interest” or “interest of justice” when set forth in that manner.  I think she’s going to say that Sullivan is entitled to conduct an inquiry, but the inquiry is limited to the record as it now exists — the history of the case as reflected in the Court’s file, and the justification set forth by the government in the motion.  Beyond that he’s not allowed to inquire further and “get behind” the decision-making process in the same manner as might be justified by an allegation of a constitutional violation or other “manifest injustice,” which are the only grounds upon which a district court may deny an otherwise properly justified Rule 48(a) motion to dismiss.

So. I like a guy who's willing to go out on a limb.

BTW, he also has an interesting dissection of Brandon Van Grack:

Flynn Prosecutor Van Grack’s Inexperience Showed in His Drafting of Important Case Documents