Tuesday, June 2, 2020

Oral Arguments In The Flynn/Sullivan Case 6/12/20

The order setting the oral arguments for 6/12/20 is embedded below. What follows is commentary by appellate lawyer John M. Reeves, as unrolled from his Twitter thread:

1) WOW--the DC Circuit just entered the below order that, among other things, sets the Flynn mandamus petition for oral argument TEN DAYS FROM NOW, on FRIDAY, JUNE 12, 2020. This is a VERY GOOD development for Flynn.

2) The setting of oral argument shows that the DC Circuit is gravely concerned about this matter, and wants to hear further from all sides.

3) This will give the DC Circuit the opportunity to pepper Sullivan's lawyer with as many questions as they want about the arguments raised in her brief. They can interrupt her as much as they want.

4) What is also noteworthy about the order is that it sets oral argument only TEN DAYS FROM NOW. For appellate oral argument, that is an INCREDIBLY SHORT AMOUNT OF TIME.

5) Typically, when a federal appellate court sets a matter for oral argument, it gives the lawyers at least THIRTY DAYS, if not more, advance notice.

6) Here, by contrast, the DC Circuit gave the parties--including Judge Sullivan's lawyer--a mere TEN DAYS to prepare for oral argument.

7) For non-lawyers, a ten day notice for oral argument may seem like a long time, but it isn't. It's an increidibly short amount of time.

8) I'm not a builder or construction worker, but I'll make a comparrison: the DC Circuit's ten-day notice to Judge Sullivan's lawyer is equivalent to...(cont)

9) (cont from previous) ...telling a construction crew they have only ten days to demolish the local library, completely rebuild it according to the new blueprints, and ensure the interior of the new building is refurbished, along with all the outdoor landscaping being in order.
10) It's POSSIBLE to do, but incredibly difficult and demanding to fulfill.

Earlier today I commented that the Court of Appeals could take one of two approaches: 1) not dignify Sullivan's legal riot with further consideration, or 2) in view of the grave constitutional issues, and the ongoing demolition of all judicial discipline by the "resistance," totally dismantle Sullivan's contumacy, root and branch. Unless I'm very much mistaken, the short deadline is a signal that the Court agrees with DoJ and is taking the second approach.

If you're a glutton for more, shipwreckedcrew has a thorough dissection of some of the weakest points in the Sullivan brief--points that could well enrage the Court of Appeals--The Filing by Judge Sullivan With The Circuit Court Is A Joke.

He first reprises his argument that Sullivan is guilty of a bald faced false statement in his brief by Wilkinson. I won't repeat it here, since we discussed that last night, but this is shipwreckedcrew's conclusion:

Wilkinson’s failure to address the totality of Sullivan’s comments during the hearing , and only pointing to his “finding” of materiality is prima facia “bad faith” and borders on both judicial misconduct on the part of Judge Sullivan to have allowed this to be written, and ethical misconduct by Wilkinson to have written what she did without addressing this glaring inconsistency of WORDS THAT CAME OUT OF HER CLIENT’S MOUTH!!

He then goes on to explain what he regards as the big picture--why this is even happening:

It is just such a glaring red flag in the record, and for Wilkinson to simply ignore it, and not make any effort to deal with it – however unpersuasive – really cause me to question the purpose behind the filing.

As I said on Twitter, as I made it through the submission I was persuaded more and more that Sullivan and his supporters and counsel know the case law is against them, and fully expect that Circuit Court will grant the mandamus relief sought by the Petition. This filing is not about persuading the Circuit Court to do something other than that – this filing is more of a “manifesto” of the Anti-Flynn crowd, and an effort by Sullivan to claim for himself as a district court judge what he thinks he’s entitled to regardless of what the Circuit Court might think.

Judge Sullivan might not have another opportunity in a public court filing to say anything about Gen. Flynn and his conduct. So Beth Wilkinson said it all for him in her submission. I really don’t see any other purpose for much of what she wrote – and didn’t write.

He concludes with one last example of how extraordinary Sullivan's brief was in its contumacy to all standards of judicial ethics:

Next is an issue raised by the filing that is an example of a phenomenon which always brought me great amusement as an prosecutor when working through arguments in a defense brief.  I’m going to call this the “Magic Argument That Appears Out of Thin Air” – or “Examples of Where Lawyers Just Make Shit Up.”

In a few places in the filing Wilkinson uses the term “plausible judicial question” as a basis to justify the inquiry that Judge Sullivan intends on pursuing.

I’m going to confess that I did not read every word of every case cited by her in the filing, and I’ll gladly append a note to this article if someone makes it necessary.

But I did not see the phrase “plausible judicial question” anywhere in any of the cases she cited that I did read, and I don’t see her having cited to any particular case where she says the existence of a “plausible judicial question” is the standard for a district court having the authority to do anything connected to what Judge Sullivan claims he wants to do.

In other words, she just made it up.


  1. Looks like a huge win for the D.S.
    Some CTH readers' comments:
    "I view this as bad news. There is *no reason whatsoever* to argue this. None.
    I am beginning to believe that Flynn has the ability to nuke Obama and Clinton. The deep state in Washington DC is keeping him silenced.
    This should have been dismissed by Sullivan.
    It SURELY should have been dismissed by the DC Circuit....

    Powell should just take this to the Supreme Court right away – Oral arguments is just more games by DC appeals court....
    The DOJ wants the case dismissed. The defendant fully concurs.
    The *only* “contentious party” remaining in this trial is Sullivan. And he *should not* be a party....

    Why would there be *any need* for oral arguments? It makes no sense.
    Sullivan’s brief cited *no legal* precedent or law, which allows him to proceed.
    If he cannot cite *any law*, the court should have dismissed the case with prejudice. What the hell are they going to argue?

    If this Circus really means to "totally dismantle Sullivan's contumacy, root and branch", it had better end up calling for Sullivan's **removal** from the bench.
    Otherwise, this smells of a bid to further torment Flynn.
    Millions of folks in DoD are watching, with keen interest.

    1. Is there an actual REASON why I should be bothering to read comments at CTH?

    2. They’re usually a waste of bandwidth… easy to skip...

    3. I'm not an investigator, nor am I a lawyer. I AM a Constitutionalist, however. My cup is more filled here than at CTH. They're kind of like a younger sister. ;-)

  2. It’s very rare for the Supreme Court to take a case directly.

    What’s happening is the best is the best case possible due to Judge Sullivan’s actions. It is warp speed for an appeal, for example in a civil Case in the 9th circuit it is around 18 months till an oral hearing.

    My guess is the panel is giving Judge Sullivan every opportunity to present his case. The challenge is he does not have good case, and at least 2 of the 3 panelists are not ideological allies of his.

    1. Right. If they favored Sullivan, they'd give him more time to develop a good argument against DoJ. As it is, I think this shows they know he has nothing to offer so they're going to let Wilkinson make a fool of herself.

  3. Well, I'll refrain from posting such stuff, if you prefer.
    I posted these words, because they reflect my fears.
    In light of today's orgy of attacks on cops, it may not be possible for the D.C. Circus to hear Sidney's arguments on 17 June (which, in current circumstances, is effectively an all-but eternal span).

    Tonite Tucker rhetorically asked, why should *cops do anything*, when the system is showing itself so feeble, that it e.g. releases criminals nearly as fast as they get arrested?

    By 17 June, if the cops have *given up* (or been massacred), the revolutionary momentum may be so strong, that Pelosi may invite antiFa etc. into the Capitol bldg. (to dispose of any GOP folks there), before marching on the Court bldgs.
    If Sidney dares to show up there, she may well be dismembered on live TV (to the delight of Maddow, Lemon, etc.)

    If you find this far fetched, please recall how many of recent years' events likewise looked far fetched, before they emerged to become all-too real.

  4. At least as often as not, revolutions prevail, when the cops, give up, or switch sides.
    VDH is on Laura now, talking about how unprecedented it is in U.S. history, for the whole Establishment to be so united, in tying cops' hands while the Revs tee off on the general public.
    Her other guest now is whining, about how DeBlasio isn't "doing enough", as if anyone should've expected anything else.
    Cops are supposed to risk their asses for these morons?
    I'll keep on saying, a split just keeps on looking more and more like the most viable option.

    1. Mouse,

      I understand your fears because I share them, but not to the degree that you seem to.

      I still think that we have enough decent people in this country who love the rule of law. I think that they are slowly awakening to what is happening.

      These are turbulent times but I think the plane will land safely.

      There's always God to turn to calm your fears.


  5. Probably a better use of your time, Mark, would be to take your trusty reel push mower out of the garage and into the yard. And then when you're done step back for a few moments and admire your freshly manicured finished product!

    No better Summer pastime. As I think you know.

    1. Too late--I did that this morning, before it got too hot. :-)

    2. Well, another good thing is that in five or six days or a week at the most you'll have the opportunity to do it again. And then maybe 20 more times before the next frost comes.

      Hopefully we'll have some very good news by then!

    3. Cassander,

      I, too, enjoy cutting the grass but we have had a lot of rain and I have to cut every three days, or so. With so many other things to do in my life, I look forward to the grass slowing down.


    4. Joe, that's the position I'm in, too.

  6. Off topic, but I am very much looking forward to Rod Rosenstein's testimony this morning. This swamp denizen extraordinaire has been long overdue for a thorough grilling. I just hope he gets that.

    This overly sympathetic-to-Rosenstein opinion piece is interesting, but I simply can't see Rosenstein as not being culpable in this entire hoax what with his authorization of fraudulent FISA warrants and re-issuing of Mueller scope memos to perpetuate a BS persecution for which he KNEW there was no evidence...

    I don't find that sympathetic at all. I find it malicious.

    1. I agree--no sympathy. RR had years upon years of education and training and experience to do the job he took on. He had hours and hours of time to consider the proper decision--which was basically a conceptual decision--applying well known principles in which he was so well educated. He had the opportunity to reconsider his decisions on multiple occasions. As far as I've heard, he never once got it right and repeatedly failed to do his clear duty and got it drastically wrong, ruining the lives of multiple people. And yet he showed resolve to a high degree in obstructing Congressional oversight. No sympathy.

      Now, compare all that to the cop's situation in MN. Where are the riots against the assault on our Constitutional order?

    2. I like how you phrased the question. Riots against the assault on our Constitutional order...lawlessness to uphold the law of the land! Your point is very well taken, Mark. So while I'm not inclined to riot, I am mad as hell about all this assault on everything our Constitutional Republic stands for. What to do other than vote? THAT is the question.

    3. Rosenstein hearing going now. Now that Feinstein has finished her loving segments, full of bushels of Trump-hate warmed over from the impeachment, RR is busy ingratiating himself with the Republicans. He looks ridiculous. Trying too hard. Grassley not buying.

    4. Thanks. I'm going for my walk.

      Not too surprising that Grassley should be a RR skeptic--he had to put up with a lot of supercilious stonewalling from him.

  7. About one hour into RR's testimony.

    Feinstein replayed the Dem talking points (lies). What a hack! She (straight face) says Horowitz found no evidence of bias in Crossfire Hurricane. And on and on.

    RR: Basically, "I did everything by the book". I did nothing wrong hiring Mueller or signing FISAs. "I assumed the FBI agents who submitted the FISA to me were submitting accurate information". I had no idea the Crossfire Investigation had political bias implications.

    Durbin: Why are we here? This is old news. There is a pandemic and there are riots in the streets.

    Finally, now, 1 1/2 hours in, Mike Lee is beginning to hit hard.

    But then Sheldon Whitehouse obfuscates and spits utter nonsense. Now he is suggesting Nunes and White House conspired to mislead Americans about Russian interference in 2017.

    Cruz is on now. He's exploding on RR. Finally.

    1. If nothing else, this tells us RR has not been brought to heel.

  8. The most disturbing thing about RR, Comey, et al, is they thought they actually had a chance to pull this off. The height of hubris and do we get these kinds of people in power? We could use some watchers to watch the watchers, however, without trust we'd need an infinite number of them. What's to be done?

  9. Hawley exploded on RR, too. Talk about a deer in the headlights. That chinless guy’s scared eyes are a sight to behold. A very, very weak man. (And maybe someone can explain to me why this incredibly weak man, obviously corrupt by omission as well as commission, whom they say spent his adult life in the DoJ, is being thanked for his service? That was his job. The job he was paid to do. By us. He was our employee. He wasn’t in Iraq or Afghanistan. Thanked for his service?)

    1. @Bebe

      Re thanking him for his service.

      You remind me of another fake issue that’s coming up this morning. During the portion I watched Senators on both sides were accepting and repeating and RR was agreeing that this whole thing started with Russian interference.

      BS! This whole thing started in the minds of criminal conspirators in the Clinton Campaign and the Obama Government. Russian interference was always a fig leaf but now we know that Crowdstrike didn’t have any evidence. There is nothing left except a troll or two. I want to throw up watching the pompous Feinstein and Leahey and Durbin hide behind this thoroughly discredited lie.

    2. Still with the Russian disinformation nonsense. I guess that's easier than having to acknowledge that all of it was a fraud perpetrated by the Clinton campaign and carried on for years by democrats, NeverTrumpers and the morally bankrupt liberal media.

  10. I've re-wound the tape to watch Cruz. He's zeroing right in on RR's abject abdication of duty. There were FBI and DOJ and Mueller lies all around him and RR didn't see or suspect anything wrong was happening.

    He did say he was very busy with the other 70,000 cases before the DOJ.

    No expiation here.

    I fast forwarded through Klobuchar. Doubt I missed anything.

    Now Hawley's up (on rewind). As Bebe said, he's on fire.

  11. Now RR is telling Sen Ernst that the third extension of the Carter Page FISA and covert investigation was justifiable, even though by the time of the extension Page knew he was being surveilled. So there had to be another reason for the extension, but RR won't say what it is.

  12. Editorial comment:

    The Dems aren't interested in getting to the bottom of accountability for this scandal. They simply aren't.

    I could care less whether the wrongdoing which must be accounted for was by Republicans or Democrats. I want to hear the truth about the criminal behavior and abuse of power which unquestionably took place.

    RR won't say and the Dems 'don't care'. More accurately, they are both participating in the cover up. The scary thing is: they might succeed.

    1. Of course the Dem's are not interested in getting to the bottom of all this. They know what's at the bottom - more Democrats.
      Tom S.

    2. @Tom S


      Although its not really very funny.

  13. Just saw a link on Bongino's page saying Flynn judge asks for more time - DOJ says no. Link seems to be broken...


    1. The page was being "revised for clarity."

      As I read it there's nothing new.

  14. Appeals Court has issued the schedule for Oral Arguments.

    15 minutes each: Flynn, DOJ, and Sullivan.

    That 30 minutes of pro-Mandamus, 15 minutes against.

    Court is also allowing live streaming of Oral arguments.

    I hopes the justices hammer Sullivan's hired gun as to why she submitted a brief that fails to respond to the legal issues the Court directed Judge Sullivan to respond to, instead of allowing her 15 unfettered minutes to deliver a political speech.

    1. Thanks. That's pretty funny. I mean, it makes perfect sense--each interested party gets 15, but ...

      I think it's also a clear sign how this will come out.

    2. I think Sullivan's attorney must be pleased she is only getting 15 minutes of having her ass handed to herself.

    3. After listening to the oral argument, Sullivan's attorney was asked a lot of questions by Judge Rao, and a couple of friendly questions by Judge Wilkins. I think the older Chief Judge, a Bush the elder appointee, wanted to take it easy on Sullivan. Most of the time was taken by questions of the government's attorney, who I thought did well.

  15. They were cornered dogs and they had no other option. But look, they've avoided consequences for 3.5 years and the Democrats retook the House.