However, here is a series of tweets by shipwreckedcrew in which he sets out how such a move would proceed:
... the full court can take the matter up "en banc" on its own. It will be a couple days before we know if any judge on the court asks for a vote on that option.
The fact that Judge Wilkins wrote a detailed dissent in the Flynn decision does increase the chances the full court [might] take up the matter. A "call" for an en banc vote -- basically a call for a vote on whether the full court should rehear the matter -- can be made by any judge.
All the full time active judges would then vote yes or no on rehearing the matter. If a majority vote yes -- and there are many more Dems on the Court now tha[n] GOP appointees -- would render null the panel decision.
Judge Wilkins dissent gives the judges two options to vote for -- to follow the majority and vote "no" on en banc review, or follow Judge Wilkins and vote yes. The easy justification for voting "yes" and tossing the panel decision is to simply say "mandamus" wasn't justified.
They can write an opinion that doesn't prejudge the outcome of Sullivan's hearing, but at the same time say the panel should not have used the extraordinary power of mandamus under the facts presented.
Counter-balancing that instinct may be a real feeling on the Circuit Court that "enough is enough", and a sentiment that everyone will be better served by allowing this circus to close.
I suspect that the decision will be that it's time to draw the curtain on this fake prosecution. Why jeopardize their reputations? Especially with the new revelations about Obama and Biden's interference in the case.
UPDATE 1: Here's something I've been wondering about, and the Circuit judges might well wonder about it, too. It has to do with the release yesterday of the Strzok notes. I ask myself: How long has Barr/Durham/Jensen been sitting on those notes? Is it possible that the earlier docs were released but the Strzok notes were held back--for future use? The letter transmitting the Strzok notes to Powell, as I noted earlier, specifically states that further docs may be released in the future. In an uncertain situation of that sort, would the full Circuit Court feel comfortable in interjecting itself? They could end up with egg on their faces. The case is going to be dismissed, one way or another, so why keep it at the top of the news. For Dems, it's pretty much a no win situation. Of course, for Trump it's a no lose situation. He likes it like that.
UPDATE 2: Margot Cleveland has weighed in on this topic: Circuit Court Just Ordered Flynn’s Criminal Charges To Be Dropped — But Judge Sullivan Might Escalate Things Anyway. Despite the caption, Cleveland appears to believe that such a move by Sullivan would be likely be akin to a suicide charge, for reasons not dissimilar to those that commenter Tom Bop and I have articulated (Tom particularly well):
At this point, Sullivan need only grant the Department of Justice’s motion to dismiss and enter an order dismissing the criminal charge against Flynn with prejudice. That would end the matter. But as the respondent to Flynn’s petition for mandamus, Sullivan has the same options a normal litigant would have, including seeking review of the panel decision by the entire D.C. Circuit or requesting review by the United States Supreme Court.
Given that Judge Robert Wilkins dissented from the majority opinion, authored by Judge Neomi Rao and joined by Judge Karen Henderson, Sullivan might just opt for open defiance. Such a course of action would be a mistake, though, as Rao penned a cautious opinion, focused on separation-of-powers concerns, that has an extremely limited reach. The majority opinion eviscerated every argument presented in Wilkins’ dissent.
Rarely do federal appellate courts go en banc to rehear a case with narrow reach, ...
I was listening to Rush while running some errands. He believes the Deep State, establishment, etc. wants to keep Flynn from talking publicly. He mentioned Sullivan requesting an en banc appellate review to keep the calendar moving; or anything Sullivan can devise to keep Flynn (and Powell) quiet until after the election.ReplyDelete
I predicted earlier Trump would start holding rallies again this month and that Flynn will be joining Trump on stage at one of his rallies once charges are dismissed. I'm sticking to that call - and now that it has been disclosed that Obama made the decision to investigate Flynn, he'll have so much more to speak about...
"He mentioned Sullivan requesting an en banc appellate review"Delete
Per shipwreckedcrew, Sullivan can't ask for a revew. That's up to the appellate judges themselves.
I'm certain I heard Sol Wisenberg say Sullivan could request an en banc review last evening on the Laura Ingraham show.Delete
Two legal “experts” on Fox just said they believed this was likely. Former Deputy AG Thomas Dupree (Bush). I think the other was Harry Litman, former US attorney.ReplyDelete
I'm not an expert, nor do I know anything about Dupree. However, I did include Turley's views on Litman in an Update. Litman is neither unbiased nor trustworthy.Delete
In the past, I have thought Dupree (often on Fox) was on our side. Not so sure after seeing him twice in the last two days on this matter. As for Litman, he was clearly one of Theirs. Even snarked about the 2 judges who voted for this opinion being mavericks or somewhat out of step with the others. (My words, not his.) I didn’t like him. I didn’t like Dupree much either re his comments on this. Right now I don’t trust either of them.Delete
First thought I had was "yeah, if it is up to any one judge on the DC circuit, this almost certainly will see en banc review". I then had exactly the same thought as you, Marc. Curious timing on the release. These releases often come out around the time of key decisions being made in this case, with each release upping the ante and giving the judiciary the opportunity to make the right call.ReplyDelete
Great point about the timing. But one clarification. It takes only 1 judge on the circuit to ask for an en banc review, but a majority of the judges must vote to hear it. If a majority won't consider an en banc review, then the panel's decision holds.Delete
"a majority of the judges must vote to hear it."Delete
Does anyone here know, if such a vote has a deadline, after which today's ruling would be final?
"after which today's ruling would be final" (unless the judges vote *for* the hearing)?Delete
Although I respect your opinion as well as your qualifier, I think this goes en banc.ReplyDelete
For the Dems, this is an all hands affair. It has nothing to do with reputations. When the attackers are in the village, the women and children have to fight.
I'm not convinced it's a no-win situation for the Dems.ReplyDelete
All they need to do is win the presidency; they have a good chance of accomplishing that.
If they win, the spigot is turned off, all other possible revelations get deep-sixed, any remaining Flynns and Lovingers get rooted out and ruined, and they either play the conspiracy theory card or they engage in retributive prosecutions. Trump might actually have to flee the country.
They will have full compliance of the media with full control over the narrative.
There's already 50m voters who will believe everything they say, and there's a whole generation of soon-to-be voters for whom the Dems will appear to be expiating the crimes of America.
A couple of months' discomfort are a small price to pay for hegemony.
I think Barr is holding back, trying to release as little as possible because of the other investigations. But doesn't want an injustice so will keep dripping new documents until they end this. And they seem to be getting worse for Obama. I wonder what's next.ReplyDelete
Suppose the DC Circuit declines to hear the case en banc & Sullivan dismisses the case as ordered. Does this mean that Jensen will no longer produce additional Brady documents? And if so, would DOJ ever make them public?ReplyDelete
No, but production might be reserved for later. The reason being that dismissal of the case doesn't mean that DoJ won't be investigating what went on in the FBI and Team Mueller's handling of the case. In that situation--which I personally take pretty much for granted--Jensen would prefer to keep his cards close to the chest. We have no idea what he may have discovered.Delete
Lots of odd statements about en banc rehearings seem to be floating around...Rule 35 governs, and permits "a majority of circuit judges who are in regular active service..." to order an en banc rehearing (but states they are "not favored" and only to preserve uniformity with other decisions (Fokker? haha), or permits any party to file for the rehearing, but must show either the decision conflicts with S. Ct. decision, or is a case of "exceptional importance" in that it conflicts with decisions of other circuits on the issue.ReplyDelete
It does look like Wilkins tried to set up the conflict with other circuits, but that was ably answered in the majority opinion. Game theory hobbyists have to be having a field day with all the ins and outs of whether anyone should seek a rehearing...very complex, many variables, hidden/concealed traps, lots at stake for all involved.
On bottom line, I'd guess no rehearing, since we're not looking at risk takers, here. This is a lot like driving on an interstate- if you make a lot of minor movements and keep the car in the middle of the lane going straight, it's very easy to do. However, the more it's out of whack, the more dangerous it is to correct. Let's say for this model, that Sullivan has it careening already...which really makes him a hard act to follow for anyone who wants to help him out. The majority opinion too full advantage of that, as did S. Powell in reply brief to Gleeson's now vacated 'report.'
Thanks, Tom. I like your reasoning.Delete
I’m wondering if the entire court will be so full of anti-Trump venom (that’s what this is all about) that it will be willing to go on the judicial verison of a snipe hunt...ReplyDelete
Robert Ray just opined that the language of the order was so strong re the executive branch’s powers not being usurped by the judiciary that the entire court may not go further. Judge Rao did a great job.ReplyDelete
Never say never, but I tend to agree. They would have to find something to disagree about, and claiming for the judiciary powers that have been reserved to the executive--and recently reaffirmed by no less than Ginsburg--seems a losing proposition. Rao did well in framing here decision (correctly) in those terms. The full Circuit may be full of Dems, but Sullivan's actions were truly extreme.Delete
General Flynn called into Rush's show today. Gateway Pundit flagged it as I was outside bush hogging and mowing. Flynn and Rush praise Ms. Powell as the turning point in General Flynn's case. Undoubtedly true in all respects.ReplyDelete
Looking forward, Flynn could play a pivotal role in Trump's reelection. Not only as the victim of Obama's vindictiveness and unlawful use of government power, but also as a the focal point in rebutting the retired GOFOs aligning against Trump, e.g. Mattis, Allen, etc.
One would assume Mueller's SC had knowledge and visibility to Strzok's "special note" re: Flynn too.ReplyDelete
My rule of thumb for some time has been that I always expect resistance/ds never to give in if the option exists to keep charging ahead, no matter how "unreasonable" it may seem. So while this 2-1 ruling may be the end of it, to me that will be the surprise occurrence, not the other way around.ReplyDelete
(And yes, I assume all D judges to be loyal soldiers of the resistance, without question. And Roberts, too.)
Just for the record, I don't claim every D judge resists. Rather, such a high percentage do that I have to assume any given one does, absent specific knowledge to the contrary.Delete
As for Roberts...what else am I supposed to believe, given the record from ACA through Census and "no R or D judges" and FISC appointments and Title VII and DACA and on to today?
Thursday morning, from the Washington Examiner’s Daniel Chaitin:ReplyDelete
U.S. District Judge Emmet Sullivan, who was appointed by former President Bill Clinton, issued a minute order Wednesday evening after an appeals court panel sided with the Justice Department in its effort to force the judge to allow it to drop its case against President Trump's first national security adviser.
"In light of the Opinion and Order issued by the Court of Appeals on Mr. Flynn's petition for writ of mandamus, the deadlines and hearing date set forth in the Minute Order of May 19, 2020 are HEREBY STAYED," the order by Sullivan said.
After the 2-1 ruling by the U.S. Court of Appeals for the District of Columbia, Sullivan could request a rehearing “en banc” before the full appeals court. It is also possible that one of the other judges on the appeals court could request such a hearing “sua sponte” even if Sullivan does not request it himself.
Chaitin has a different opinion re Sullivan’s being able to request an en banc review…???
Jonathan Turley clearly believes that the 2-1 appellate court dismissal closed the door against anything further. He mentions no additional possibilities in this excellent article.ReplyDelete