Saturday, June 13, 2020

UPDATED: More Cautious Optimism Re The Flynn Mandamus Petition

This time the cautious optimism comes via John M. Reeves, an appellate lawyer. Reeves held off commenting yesterday, preferring to let the oral argument sink in a bit before offering predictions. He now concludes that "the odds are slightly in favor of mandamus being granted" and that, if the mandamus is not issued Sullivan will be reigned in in some significant way. He also explains--for those like me who weren't sure--how en banc review typically works, and why it probably won't work for Sullivan in this case.

Reeves' twitter thread comes in 24 parts, but I'll leave out the references and limit the excerpts to essentials. I've also expanded abbreviations. IMO, Reeves makes a fairly persuasive case, given how difficult such decisions are. I will add what is a significant reminder up front. Henderson--considered the "swing" vote--has not been afraid in the past to side with President Trump in politically fraught cases:

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.

I think that supports Reeves' view that Henderson is not a "swing" vote in the sense that she would be open to weakening the Executive Branch. The only "swing" in her view, as Reeves argues, is likely with regard to timing--and her closing question to Deputy Solicitor General Jeff Wall is a clear indication that she understands the key Executive Branch issues in that regard. With that reminder we proceed:

1) I do NOT believe the Flynn oral argument went as well for Judge Sullivan as some commentators believe it did. 
2) I predict the DC Circuit will either (1) grant Flynn mandamus; or (2) issue an opinion that, while not granting mandamus, "reminds" Judge Sullivan of his duty to abide by Fokker, and strongly hints that if he keeps going off the deep end, it will not end well. 
3) I think the odds are slightly in favor of mandamus being granted, as opposed to the DC Circuit merely issuing an opinion "reminding" Judge Sullivan of what he needs to do in order to save face. I realize this is a more optimistic view than most people have taken. 
4) Judge Henderson is the key "swing vote" here. Her questions clearly indicate she agrees Judge Sullivan is acting wrongly. She is 90% with Flynn. 
5) The issue for Judge Henderson is not whether mandamus is appropriate to correct Judge Sullivan. The issue for Judge Henderson is whether mandamus is appropriate AT THIS POINT, when Judge Sullivan has yet to rule one way or the other on the DOJ's motion to dismiss. 
7) But because Judge Sullivan has not yet ruled on the DOJ mtd, this is giving Judge Henderson pause in granting the mandamus. 
8) But based on her final question to the DOJ yesterday about it being allowed to "self-correct" was, to me at least, her showing her hand that she believes Judge Sullivan has to be reigned in now. 
10) If Judge Henderson wrote an opinion that deviated from Fokker, this would increase the chance of en banc review by the DC Circuit, something she does NOT want to happen.
11) For those who do not know "en banc" review is when the ENTIRE appellate court agrees to hear and rule on the case, and not just a panel of three judges. 
12) En banc review is typically limited to where a majority of the judges on the court think that the 3-judge opinion contradicts an earlier opinion of the court. 
13) Keep in mind, as well, that Fokker was written by an OBAMA-appointed Judge, Chief Judge Sri Srinivasan. He will NOT want Fokker to be weakened. 
14) I also believe that Jeff Wall (the DOJ lawyer who argued) convinced Judge Henderson of the harm the Government has already suffered, and will continue to suffer, if Judge Sullivan is not reigned in now. 
15) As I point out in my amicus brief that I filed in the Flynn case, ample DC Circuit precedent exists for granting mandamus not only where a district court has ruled, but where it has also REFUSED TO RULE through an UNREASONABLE DELAY. 
16) I was very surprised the DOJ did not bring this up during oral argument. Judge Sullivan's appointing of amicus and setting a briefing schedule and oral argument is ITSELF a REFUSAL TO RULE through an UNREASONABLE delay.
17) In any event, I think that Jeff Wall's closing remarks (as the attorney for the DOJ) convinced Judge Henderson that mandamus needs to be issued. Hence her asking Wall, "shouldn't we allow [the prosecution] to self-correct?" 
18) By asking, "shouldn't we allow [the prosecution] to self-correct," Judge Henderson seems to be indicating mandamus needs to issue in order to enable the Government to self-correct. Judge Sullivan appointing amicus prevents that self-correction from happening. 

To me it's a reasonable assessment. Now we wait and see.

UPDATE: Shipwreckedcrew has written a new article in which he agrees with--but doesn't name--Reeves regarding the likely outcome: Day After Thoughts On Flynn Oral Arguments — Flynn Still Wins. Shipwrecked expresses a view re Wilkins which I hinted at just now in a comment--that this path (as expressed by Reeves, above) may allow Wilkins to join in a 3-0 decision. As I expressed in my comment, my recollection is that Wilkins agreed with the characterization of Gleeson as an "intemperate Amicus." For all his appeal to race based examples, I doubt that Wilkins could be insensible to the examples of prosecutorial abuse that both Powell and the government adduced. If, as shipwreckedcrew thinks, a face saving out is offered to Sullivan, Wilkins may be willing to join in to add force to that decision. After all, he joined in with the initial decisions of the panel for an expedited hearing, undoubtedly knowing full well that that alone was a rebuke to Sullivan.

We shall see.


  1. Judges playing devil's advocate is fairly common. Indeed, it's necessary and appropriate. Decisions can come as a surprise to those who try to divine a judge's position based on the questions they asked. Although it is, unfortunately, not always the case, it should boil down to the law without regard to a judge's politics or personal opinion. At least it's supposed to.

  2. Good analysis of the hearing and oral arguments. One other factor in this case that's rarely present in others, is the 'self-policing' aspect. That's not just applicable to DOJ here, but, imo, is the 'elephant in the room' for this whole hearing. It was tangentially mentioned a couple times, but not really discussed.
    SP briefed the flagrant examples of seeming prejudice (as in pre-judging) in her brief supporting the writ, as well as egregious examples of non-judicial temperament, such as calling Flynn out publicly as a 'traitor' etc. No need to list them all for the faithful followers…
    In this case, I think the hearing was very bad for Sullivan, because just having this hearing was a major 'defeat' (read: disgrace) for Sullivan. My guess is his non-judicial behavior was the primary reason they had the accelerated briefing/argument schedule in this case. Without that, they would have just waited to see what happened. Of course, without all that, Flynn may not have filed for the writ, assuming there'd be a fair hearing.
    Given Sullivan's rash actions in recent times, the public could have interpreted Sullivan's latest tangents as being a very rash and non-professional judge, on one end of the spectrum, to surmising that he may be a full, card-carrying member of the cabal, on the other, taking instructions from some deep conspirator, at the other. Not saying he was, but people could surmise…
    I'd posit this was a major reason for the 'intervention' the DC Circuit held yesterday- and will be a major goal in fashioning their opinion. There were a couple oblique shots at the bow yesterday, where the choice of Sullivan's amicus was branded as 'intemperate,' which is a rare shot at a former judge, and it was clearly mentioned that on July 16, he may just disregard the amicus brief and dismiss the case. Not a subtle hint, in the world of supreme subtleties where hairs are split by the micron.
    If you look at the major purpose of this hearing as having an ulterior motive of stopping Sullivan before he really impugns the reputation and appearance of the whole Federal judiciary, then crafting the order becomes an exercise in how well did Sullivan understand that they were very upset with his comportment, and how compliant he may be. There really was no dispute on the law or the outcome at the hearing, just how much slack Sullivan should get before that law is applied and that outcome is reached.
    Looking at it that way, the more they perceive Sullivan as a loose cannon, the more likely the writ will issue. If they perceive he's received the message already, there's no further need for the DC Cir to intervene, but if they perceive he's still subject to whatever whims or outside forces, it will likely be a strong order that gives detailed guidance, even without the actual issuance of the writ.
    None of this is to say the law shouldn't be carefully analyzed and properly applied in this and every other case. It's just very rare to see a Federal case stray so much from the 'regular order' that it needs so much "self policing." Which is what, I believe, Judge Henderson was suggesting in a very kind and wise manner: that "self policing' is a virtuous thing, which applies to Judges and all the rest of us, not just to DOJ!

    1. Fair enough. I seem to recall that even Wilkins agreed with the characterization of Gleeson as "intemperate."

  3. As for Sullivan being part of a cabal of corrupt public officials, I'd sure like to see all the emails and call records/notes between the original DOJ prosecutors, Sullivan, and the Covington attorneys.

    I think Flynn should demand to get copies of all the time sheets of the Covington Lawyers. My guess is that there is a lot of padding in those records. One of the easiest way to get disbarred.

    There is bound to be gold in those emails.

  4. Forgot to add:

    Granting the petition would save Sullivan further embarrassment.

  5. Mark, If Mandamus is expected at some point, does the possibility exist that Sullivan's lawyer, Beth Wilkinson could appeal this to the Supreme Court?

  6. Oh look, Aaron Zelinsky of the ├╝ber political Mueller SCO fraud is a ... wait for it ... wait ... "whistleblower" on the "unprecedented politicization" of DOJ under ... Barack Obama? No. Eric Holder? No. Loretta Lynch? No...

    Nadless subpoenas DOJ whistleblowers for testimony on 'unprecedented politicization' under Barr, Trump