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.
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!!
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.
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.