Thursday, July 9, 2020

Sullivan Asks For En Banc Review Of The Mandamus

You can read Sullivan's petition for an en banc rehearing of the mandamus to dismiss the Flynn case here. You can also listen to Will Chamberlain analyze the petition here. Chamberlain was in a hurry, but in a bit of a rush he does touch on all the major points. He's skeptical of Sullivan's chances, but toward the end notes that the one point that may give Sullivan some traction is his contention that the parties to the case--the government and Flynn--should have asked for Sullivan to reconsider his decision to hold a hearing, appoint an amicus, etc., before petitioning for the writ of mandamus. Chamberlain, however, argues that any traction will be limited because of Judge Rao's very thorough opinion in support of the mandamus, in which she cites law directly on point with that issue.

Jonathan Turley also seems to think that the issue of a motion to reconsider is Sullivan's strongest argument--or, at least, the argument most likely to get a sympathetic hearing from other judges. However, Turley, too, thinks Rao covered that angle:

Judge Sullivan just asked for an appeal to the full DC Circuit court.  I was surprised by the [mandamus] order, but the request for en banc review still only delay[s] the inevitable for the court.  The law is clear on the eventual dismissal of the charges. 
Many judges would likely agree that the case should have been left to Sullivan to dismiss after a hearing.  However, Sullivan undermined his case with his deeply disturbing orders to bring in a third party to argue issues that neither actual party supports and ... 
...then suggesting that he might actually substitute his own criminal charge. There is a point when the improvisational becomes virtually recreational for a court. The panel was correct that the charges must clearly be dismissed in the case despite the court's obvious displeasure.

All of those facts were covered by Rao in her original opinion.

Shipwreckedcrew has an article on this development, but his Twitter feed probably provides more actual analysis. I hesitate to disagree, however, I'm not persuaded that granting the writ of mandamus without a prior motion to reconsider will lead to chaos in the courts, as shipwreckedcrew argues. It seems to me that he's not giving full weight to what Turley terms Sullivan's

"deeply disturbing orders to bring in a third party to argue issues that neither actual party supports and then suggesting that he might actually substitute his own criminal charge." 

What Sullivan did really was quite extraordinary and is unlikely to be replicated in other cases. I simply doubt there will be many other litigants "sprinting to the Appeals court" to get the Flynn Treatment.

Here are shipwreckedcrew's comments--the questions that he's responding to are in italics:

There's likely a deadline on how long the judges have to decide to grant or deny the petition for an en banc hearing. I trust @shipwreckedcrew would know that. 
Correct -- if they vote to rehear the case, then the 21 day issue is moot.  The panel decision is vacated, and has no force. 
how long do the judges have to consider Sullivan's petition to have a hearing? 
I’m not sure there is a timeframe but there is no purpose in delaying on their part.  They all know what their vote is going to be.  There isn’t any mystery here for them. 
Wonder if Sullivan doing this because he already knows the judges will support him or he simply wants to run the clock until after election. Either way, he is very effective. 
I think the fact that Sullivan was forced to ask [for the rehearing] himself -- any judge of the court could have called for a vote without Sullivan's petition -- is an indication that there are not 6 votes to rehear the case. 
I HONESTLY don't think that's it.  There are real and legitimate issues here from the perspective of a district court judge -- take away the fact that it is the Flynn case. 
It is an extraordinarily rare instance where the Appeals Ct reaches down into the trial court and says "You must rule XYZ" before the trial court has ruled. It just doesn't happen.  Using a "blunt" tool like Mandamus to do it, when the traditional use of mandamus is very narrow. 
Creates some implications for both courts.  By granting the petition like happened here, it only encourages other litigants to sprint to the appeals court asking for the same kind of thing Flynn asked for BEFORE the trial court has ruled. 
Flynn's case is "extreme" simply because of all the context and subtext that attaches to it.  But the implications for both courts are very real with regard to hundreds of other cases where defendants will now say "What about me?"  in seeking the same relief the Court gave Flynn. 
I’d be very interested to hear some discussion from @Techno_Fog @TheLastRefuge2 @ProfMJCleveland on the prematurity of @SidneyPowell1’s mandamus motion here. 
I thought [Powell] should have filed motions to reconsider the appointment of the amicus counsel, and the briefing schedule.  That would have forced Sullivan into issuing an order, and that Order would have been a better basis  to seek Mandamus relief. 
If the 21 day time arrive before they vote, then what happens? 
I invite an[y] appellate specialist to correct me if I'm wrong, but if the Appeals Court fails to act by the end of the 21 day period then the panel decision is effective.  The decision is not stayed only by the filing of a petition.  Only the Appeals Ct can stay the mandate. 

In other words, if the Court of Appeals doesn't act within the week, the mandamus goes into effect.

In a way, Sullivan taking this step when no judge of the Circuit has called for a vote in over two weeks is a bit of a "stick in the eye" to the Appeals Court.  Their silence was letting him know they weren't bothered by Rao's outcome.  So he tries to force their hand. 


  1. If the entire Court refuses to take this up, can Sullivan appeal to the Supreme Court?

    1. How can a judge appeal a case they are not even a party too?

  2. Sullivan's hand picking of Gleeson (who previously was Andrew Weissmann's supervisor at the DOJ, and who's firm has represented Sally Yates) raises a question in my mind of whether that is a potential channel for outside influence on Sullivan. If Sullivan acted on information fed to him like this, and if Weissmann was a prime move of the fake charges against Flynn et al, wouldn't that make Sullivan part of the criminal conspiracy?

    Sullivan's actions seem desperate. His treason accusation outburst a year ago certainly suggests he is subject to outside influence at least at some level--perhaps just as a liberal who follows left wing news, but how do we know it is not in a more direct way? Why didn't the DOJ file the writ and why did they let Powell do it? If there has been communication from Weissmann directly or indirectly that leads to Sullivan, it makes me wonder if the DOJ is letting Sullivan bury himself. There has been so much corruption in so many parts of government that I just would not be surprised if Sullivan was part of it, and that's why he got himself a lawyer in the middle of this circus.

  3. It will be informative as to how the entire Appeals Court responds. Credit Trump and Flynn, but mostly Powell, for exposing the rot in our judiciary. If the Appeals Court grants Sullivan's review request, the rot is deep to the core. Then the question becomes: what is the end game? What does Flynn know or represent that scares the hell out of the left? And by now, it should be crystal clear that Sullivan is a standard bearer for the left - not the law.


    1. ...and I would be remiss not to credit AG Barr for adding the needed weight with the withdrawal of charges against General Flynn. That was what ultimately strengthened Powell's position and caused Sullivan's heartache.

      Observing the political moves by AG Barr (and they are political) I would bet Durham brings forth the conspiracy allegation before summer's end. AG Barr has enough foresight to know what will happen to this nation if Biden is elected as a communist placeholder. He holds some significant hole cards waiting to be turned over...


    2. Since we are all hypothesizing, I'm wondering whether the Solicitor General's failure to file his own writ of manadamus (which Sullivan's attorney has brought up twice, and Judge Wilkinson also argued in his dissent) and the lack of an adequate excuse is what led to Noel Francisco's hasty departure?

    3. I very much doubt that Francisco's departure was 'hasty.' The end of the SCOTUS term is when the SC typically leaves, and Francisco had put in significant time.

  4. I mentioned a week or so ago that my rule on all this is to expect all Dem-appointed judges (and CJ Roberts, too) to continue acting like loyal Resistance soldiers -- until the day comes that they don't. This has been the clear pattern all the way through, so who am I to say it won't continue?

    I hope that pattern gets broken soon, of course, with the full circuit not granting en banc review, but no way will I put any money there.

  5. If the Circuit refuses to go en banc, I expect Sparklefarts to push Sullivan, to seek the Supremes' OK for the case to get Standing.
    If the Supremes deny that bid, or anyway rule for Flynn, expect Sullivan to (be pressed to) go public vs. the "Rayciss" Supremes.

    Part of the point of this would be, for the Dems to set the stage for the option Tschifty Mccoy wrote about yesterday, namely to set the stage for a DJT win to be answered with riots, "on such a scale that Trump will be forced to call on the military, at which point the Dims scream "Dictator!!!" and try a coup, to install a "provisional government" which never ends.

    All this seemed quite far fetched, until recent events (RussiaGate, "obstruction of Congress", this Flynn stuff, BLM riots) kept making such scenarios more plausible.

  6. What I find interesting in Sullivan's arguments for en banc rehearing is what's not in them: he makes no argument that that the case should NOT be dismissed. Instead, he makes a series of basically procedural arguments that the granting of the Writ was premature, etc. And, as Will Chamberlain argues, the procedural arguments that the Writ grant was premature are well anticipated and addressed in Rao's opinion granting the Writ.

    Ultimately, Sullivan is like a perpetual three year old stuck in the anal fixation phase of development, arguing for procedural reasons why he should be allowed to play which his judicial fecal matter despite the fact he knows in the end he has to flush the toilet.

    It's all so utterly pointless.

  7. Powell's efforts to leverage Mandamus was intended to say "enough is enough" on behalf of General Flynn. that guy's been put through the ringer, lost so much money, wear and tear on him and his family. She needed to expedite things and I agree with her rationale to use it even at the expense of future impact to other litigants.

  8. My other point is by Sullivan doing this he's trying to keep General Flynn off the speaking circuit on behalf of Trump and the Deep state prior to the election. Bad form.

  9. There is no reason sullivan could not reconsider sua sponte. sullivan clearly does not have to rely on defendant's counsel or the DOJ to reconsider his own 'unusual' extrajudicial rulings.

    The argument that mandamus will be sought willy-nilly is irrelevant. So what? Its expensive for defandants, and mandamus filings can easily be just ignored by the Appellate court. No opinion is necessary. The Appellate Court stays in complete control. Its like seeking cert. Most are ignored.

    But even more important, mandamus filings will still be rare before a trial court ruling, because it pisses off the judge before ruling. So it is an extreme measure, a desperate measure. So therefor it is a bellwether of the desperation of defendant trial counsel with various judges. Any mandamus 'increase' for a particular judge, despite being ignored by the Appellate courts, can be a measure or forewarning of a problem judge. A fire alarm warning for strange or biased, or extracurricular behavior. Potentially very useful, but can be completely ignored in general. Unless there is situation of extreme bias, or bankrupting extension of proceedings which deny justice, and other nonjudicial behavior which needs to be addressed. Again, the Appellate court stays in charge for their corrective role, with the ability to deal with problems which adversely affect the integrity and credibility of the judicial system.

  10. Apologies for going totally OT here, but just want to throw in a passage from Andy McCarthy's The Hill piece today re the Little Sisters of the Poor decision handed down earlier this week.

    I do so just because, however maddening McCarthy can be when he pulls his punches on government employees gone bad, he's a serious observer and analyst who is really good when he wants to be, and I think he's enough of an overall ally in the good fight that it's worth showing this example thereof.

    The whole column is well worth reading, but here's a taste of it (link at the end):

    /If the court had ruled that the mandate could not be justified under the RFRA, that would have won the case for the Little Sisters of the Poor. So why didn’t the court do that? It has to have been that there were not five votes.

    I suspect the main culprit is Chief Justice Roberts. More a transactional political operator than a conservative, Roberts obsesses over the court’s standing with the media, and his own. He would rather have a 7-2 decision on a technical point that could be spun as collegial and transcending partisanship, than a 5-4 victory for religious liberty that would surely be lambasted by Democrats and the press. It is worth noting that his scheming is, as ever, too clever by half: Though the justices did not actually take a stand for religious liberty, the left is attacking the court as if it had done so. Try as you might, Mr. Chief Justice, they’re never going to love you.

    The enigma is Justice Brett Kavanaugh, a conservative who likes to stress that he is a team player. He appears to have formed a bond with Roberts and Kagan, a critical mass that effectively decides big cases. Obviously, that arrangement is perfect … for Kagan.

    Justice Clarence Thomas remains a stalwart conservative. His majority opinion is the best that could be hoped for given the constraints. The opinion upholds the exemption from the mandate and emphasizes that the RFRA should be considered by courts and bureaucrats going forward. But he couldn’t rule the way Alito and Gorsuch wanted to rule — that is, hold that the RFRA is dispositive — because Roberts and Kavanaugh wouldn’t give him the votes.

    Thus, the case goes back to the lower courts. Knowing that, Justice Kagan wrote a concurrence instructing those courts on how to arrive at the conclusion that the Trump administration’s exemption is invalid under the Administrative Procedure Act.

    It is a master stroke. Over time, as the Little Sisters are further worn down by a litigation that already has taken seven years, the left will win. That is, progressives will get the outcome demanded in the overwrought dissent written by Justice Ruth Bader Ginsburg and joined by Justice Sonia Sotomayor. Kagan grasped that, at this moment, if she and Breyer had joined that unyielding position, the other five justices might have united under the RFRA to defeat them.

    Instead, she played for time, so the game goes on. And as it does, Justice Kagan knows that when it finally gets back to the Supreme Court a year or three from now, there could well be a new Democratic administration writing the rules and choosing the new judges — and maybe even some new justices./

  11. Filing a motion to reconsider would have been futile. No way Sullivan would have reconsidered. Rather, he would have badgered Powell & Flynn for having the temerity to question his judgment.

  12. And sulivan is perfectly able to 'reconsider' his strange order, on his own, without needing the DOJ or Defendant to file a motion. What a maroon.

  13. According to the Washington Examiner, looks like the full circuit is pursuing Sullivan's circus. For the moment, they want Flynn to respond in 3900 words or less and they invite the government to do the same. Deadline is 10 days. They are staying the order to dismiss pending the disposition of the petition for hearing en banc.

    I'd be curious what we can read into a request for response rather than a clear vote to re-hear en banc or not.

    1. Probably very little to be read into it, beyond going the extra mile in a high profile case.

      Andrea Widburg has a very good takedown on it today, expanding on some things Chamberlain spoke about yesterday:

  14. DC Circuit orders Flynn to file a response by 7/20.