Wednesday, August 5, 2020

Flynn Case: DC Circuit Asks Parties To Address Sullivan's Role

Per Techno Fog the DC Court of Appeals has asked the parties to the en banc rehearing of the Petition for Mandamus in the Flynn case to specifically address two issues:

1) Whether Judge Sullivan should disqualify himself for perceived impartiality; and
2) If Sullivan should disqualify himself as a party to the proceeding.

Commenter EZ suggested in a comment that this could be the Court looking for a way out of the mess Sullivan has created. The fact is that, no matter what the Dem judges may think of Trump or of Flynn, they know that to come down in favor of Sullivan's unhinged approach will 1) ultimately be shot down by the SCOTUS, and 2) expose them as lacking impartial judicial temperament and proceeding without regard to core constitutional issues. One way of getting out of this mess might be to squash Sullivan's circus-style appointment of an "amicus" but allowing Sullivan to finish considering the original motion to dismiss. Recall that the Petition for Mandamus was filed before a ruling on the motion to dismiss, the reason being that the appointment of a wildly biased "amicus"--or, in point of fact, any amicus--was clearly unprecedented and called into question the very nature of separation of powers under our constitution.

Shipwreckedcrew has a new article up in which he pretty much comes down on the side of the Court looking for a way out of a mess that Sullivan created:

I think the significance of the Court’s new order is that it suggests the DC Circuit is looking for an avenue that sends the case back to the district court for further proceedings on the pending motion to dismiss under Rule 48(a), while at the same time not continuing or encouraging the “circus” process that Judge Sullivan had set in place and repeatedly expressed a desire to engage in.

Under this reasoning, it appears that the DC Circuit recognizes that the Mandamus imbroglio was caused by Sullivan's vendetta against Flynn, as seen in his appointment of a clearly biased "amicus" and an expressed intention to consider further perjury charges against Flynn regardless of any decision on the part of the Executive branch. Both of these decisions flew in the face of precedent and rules of procedure. As Shipwreckedcrew expresses it:

Sullivan has corrupted that “regular order” process with his appointment of an amicus counsel to argue against an unopposed motion, and the suggestion that a far-reaching inquiry into the deliberative processes of the Executive Branch — maybe including affidavits or testimony under oath by government officials — is warranted by the motion. 
Sullivan has turned that “regular order” process into his own Captain Ahab-esque quest to find the “White Whale.” The Circuit Court needs to preserve the “regular order” process while at the same time disapproving the manner in which Judge Sullivan has conducted himself in the case.

In Shipwreckedcrew's view, the scenario raised by the Court's request for consideration of Sullivan's role suggests they could be looking at two possibilities for restoring "regular order" to the DC Circuit:

One would be to simply find that Judge Sullivan’s conduct has created a circumstance where his partiality can reasonably be called into question. That is a basis for mandatory reassignment under Sec. 455 that I referenced above. 
The second option would be the more benign approach of finding that in pursuing the Petition for Rehearing En Banc, Judge Sullivan has now made himself a nominal “party” and as such he can no longer preside over the case.

A third possibility might be to deny the Petition for Mandamus but to direct Sullivan to rule on the Motion to Dismiss without use of an amicus and relying on the facts as stated in the motions. That could be accompanied by statements regarding the proper role of judges in handling such motions. That would also presume that the Court is serious about putting an end to the circus, but wants to avoid disqualifying Sullivan.

UPDATE: Highly experienced attorney and law professor Jonathan Turley appears to agree with commenter Tom Bop--the best way to understand the DC Circuit's order is that they have set themselves on a path to remove Sullivan from the Flynn case. Turley says he can see an order similar to the one I sketched out--but still believes it would include removal of Sullivan. I have to wonder whether the Chief Judge got some sort of message from ... someone. I know for a fact that such things happen:

The DC Circuit just issued an order for the counsel in Flynn to be prepared to answer questions about mandatory recusal or removal conditions for judges.

The only potentially applicable part of 28 U.S.C. 455 includes mandatory recusal "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."
28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge
The order is interesting because the briefing already raises bias, but the order is preparing for argument on whether this was not just a case of judicial error but a matter for mandatory disqualification. It is the difference between judging wrong and the wrong judge in a case.
The en banc could ask why it should not send the case back for a hearing (reversing the dismissal order of the panel) but remove Sullivan as the judge. It then reaffirms the power of the trial court while reinforcing the need for judicial impartiality.
Such an order could also include instruction to bar Sullivan's highly irregular use of a third party to argument and note the clarity of the legal standard strongly favoring dismissal in such circumstances.


  1. Though I'm sticking to my cynical rule that they'll never leave Flynn alone willingly, this has to be the most hopeful sign yet that this rule will soon be rendered inoperative.

    Fingers crossed tightly.

  2. But then again, let's do some math: 1 week to the en banc hearing, 2 or 3 weeks for decision, new judge sets hearing for 3 weeks later, Flynn set free 2 weeks after that.

    That's 8 or 9 weeks - 2 months - more circus. Plenty of time to achieve what they want, even if my numbers are on the high side.

    So even if the panel reassigns the case, cynicism continues to carry the day.

  3. to use the chess term, J. Sullivan is forked! He can EITHER claim to be a party, in which case he must disqualify himself, under one 28 USC section cited by the Court in today's order, OR, if he claims to NOT be a party, he's not eligible to request the re-hearing under Rule 35 (b), which the Court has now boxed his appeal into. Since the appeal is now clearly made subject to Rule 35 (b), it's also subject to the time deadline in Rule 40, which Sullivan and his counsel missed. There doesn't seem to be any way in the rules to cure this filing defect...

    Probable that the re-hearing en banc was granted as a political move, but then the papers were actually read by their clerks, and...oops. Now they see the only error made by Rao was not DQ'ing Sullivan as originally requested by Flynn. haha

    1. While I like that, the wild card--or so it seems to me--is that Sullivan never actually ruled on the motion. They could say all or much of the above, but still send it back for a ruling.

    2. Absolutely. Though since assigning the case to a different judge still keeps Flynn sidelined & "guilty" until October at least, and since doing so should protect them from charges of bias or corruption, you have to think that would be the more appealing road for them to take. (No way they just reinstate mandamus, right?)

      But of course, who can predict what people will do when it's Alice In Wonderland everywhere you look?

    3. That is a wild card under the J. Wilkins dissenting opinion in the original mandamus, but it's very separate from the issues the Ct raised today- those are procedural, and don't have anything to do with the substance of the case. They go to whether Sullivan has could be rationally viewed as prejudiced, or whether, by filing the current petition under a Rule for 'parties,' he has become a 'party' and thereby disqualified under 28USC. These only go to whether Sullivan has to step aside. If Sullivan's gone, a new D. Ct. judge would have to take over, and that could lead to a whole range of courses that could occur. I believe if many lawyers were Sullivan's counsel, they'd read the order today as a call to step aside before the hearing. That's not been Sullivan or his counsel's track record in this case, though...

    4. I agree it does sound like a message being sent. They didn't have to frame it this way beforehand.

    5. I wonder whether it's possible that the Chief Judge got a message of some sort himself?

  4. Agree on the dc court looking for an off ramp.

    A challenge is a Sullivan is not interested in that option.

  5. Oy Vay. Why is it incumbent on DOJ and Sydney Powell to provide direction on these 2 points. Get on with it based on your own circuit findings and make a damn decision. What a waste of taxpayer money and a disgrace to the judicial process.

  6. If the DC Court of Appeals rules against Flynn & Powell, which I don't see as out of the question, since they could have already ruled in Flynn's favor by denying the en banc hearing, I have absolutely zero confidence that Roberts will come down on the Flynn-Powell side. He's many things, this Roberts guy, all of them bad. Most importantly, he despises Trump.

    Forcing Trump to pardon Flynn, to steal a phrase from Mr. Eastwood, will make his day.

    As Brad Crawford points out, the goal here, on the parts of almost every one of these judges (I mean, look at the makeup of this court!) is to delay & screw Trump.

    This will probably add two months to Flynn's ordeal and keep him from helping DJT. Win-win, deep state.

  7. The beauty of the disqualification route is that it moots the Mandamus issue, getting the Appellate Court out of Sullivan's Judicial Dumpster fire w/o ruling on the Mandamus Motion.

    As Shipwreckedcrew as noted in some of his tweets, this also subtly serves notice on Sullivan to recuse himself, because he can't win, and continuing will only serve to embrass him by the Appellate Court DQing him.

    A recusal allows Sullivan to save face by not ruling on the Motion to Dismiss, and leaving it to some other judge who isn't emotionally invested in the case to simply accept the Motion to Dismiss, and it all over.

    No DQ. No Mandamus. Flynn a free man. Justice served/faces saved.

    1. Though it could be 3 or more weeks before they decide to dq Sullivan if he doesn't do it on his own (and what about the history of this case argues that he will?), then 2 or 3 weeks for the next hearing to be scheduled and another couple for a favorable Flynn decision to come down.

      This puts the Appeals Court in the political clear while still keeping Flynn on the sidelines till very close to the election.

      I see the point about Sullivan saving face, but he's just seemed so immune to any sort of shame so far that it'd be a real 180-degree turn for him to start caring about that now. I’ll be all smiles if you’re right, though.

    2. "3 or more weeks before they decide to dq Sullivan... , then 2 or 3 weeks for the next hearing to be scheduled and another couple...."

      Such games may fool the novice public, but won't fool folks in the Know.
      Given that the listed tasks are as simple as it gets in the legal world, these tasks should take at most 1/2 of the span you list here, if the Circuit so orders.

    3. Totally agree on the "should" part. I'm just assuming the idea is max delay. Hope the assumption is unfounded.

    4. My outlook makes Brad's look positively Polyannaesque. No resolution 'til February.

      The Deep State is called that for a reason.

      The "novice" public is the voting public. Those "in the know" don't even qualify as a rounding error.

      There is no task in the legal world that can't be stretched to 6 months.

      The French revolution did Shakespeare one better. They guillotined the judges first, as part of the court, then tried to kill all the lawyers.

    5. @Anonymous: anyone calling an outlook of mine "Polyannaesque" is A-OKAY in my book :)

    6. EZ, Don't go celebrating about reassignment just yet. Remember that this case could be reassigned to Amy Berman Jackson, the hanging judge in the Manafort and Stone cases.

  8. This is certainly a hopeful development, but...
    I wonder...if we rule out face-saving (they did elect to hear the case), what does that leave us with?

    Not knowing how these courts work, I ask: is it possible that the order came only from Rao? In other words, is the court in this order speaking monolithically, or do individual jurists have latitude to issue such orders or requests during these proceedings?

    If anything like this is in play it would mean that the order tells us little about the mood of the court.

    1. The order is from the court, so not from an individual judge.

  9. This has been asked before ...


    Why did Sullivan do this? What is/are his motive(s)?

    Personal bias and animus?

    Maybe, but taken in context of the Russian Hoax, Mueller’s Inquisition, the Impeach based on lies, the the COVID lockdowns, the severe crippling of the economy, the riots and the allowance thereof, mostly done by Democrats, it paints a highly suggestive narrative of winning no matter who gets hurt, who dies, or even if the US survives.

    1. @Anonymous

      I'm repeating myself, but when the Dems consciously determined to destroy Brett Kavanaugh's reputation by putting a woman forward to accuse him of sexual assault without corroborating evidence (the mere accusation did the job), they erased all doubt in my mind that they care "who gets hurt, who dies, or even if the US survives."

  10. MW wrote:

    >> I have to wonder whether the Chief Judge got some sort of message from ... someone. I know for a fact that such things happen: <<

    Perhaps something along the lines of "if you think the stuff Jensen has found and that has been released by DOJ so far is disturbing about what prosecutors did to Flynn, wait until you see what's coming next if you guys are foolish enough to get into the weeds in Sullivan's Judicial Dumpster fire. You would be well advised to find an expedient way of extricating yourselves from the mess Sullivan has dumped in your lap, before the ticking time bomb goes off."

  11. My 2¢.

    1. I assess zero chance a final judgment is ultimately entered against Flynn. I believe the Government's motion to dismiss will ultimately be granted. This is all about delay.

    2. I think today's order is a 'head fake'. It changes nothing. The question of whether 'Judge' Sullivan should disqualify himself was raised in the original motion to dismiss but never argued or decided before or by the 3 judge panel. I surmise at least one of the en banc judges thinks it should be argued in case it becomes relevant to the en banc decision. A court order ensued as a matter of course. There is no reason based on this order to believe the Circuit Court will or will not order Sullivan to disqualify himself... or consider disqualifying himself.

    3. Since I believe the en banc Court has no basis to take any action which leads to a final judgement being entered against Flynn (see #1 above), then I continue to believe the Clinton/Obama-appointed majority on the Court will continue to take actions intended simply delay. This means they will send the case back to 'Judge' Sullivan to hear and decide the Government's motion to dismiss. Maybe Sullivan will and maybe he won't. Maybe he will be disqualified and maybe he won't. But further delay will ensue which is the best result Sullivan and the Clinton/Obama appointees can hope for.

    1. The argument against #2 would be: Why even bother with a head fake? What does it accomplish, except draw attention to the outrageousness of Sullivan's actions? If their goal is delay--a position I held until today--why draw attention to the legal weakness of their position?

    2. Just throwing this out there, but maybe one or more of the Republican appointees asked for this? That would make it no head fake at all, and maybe agreeing to such a thing by the chief judge or the 7 Dems or whatever was just a courtesy?

      As I said - just a thought...

    3. This was really my point above.

      Maybe it was a courtesy, or maybe, once it's gone en band, every judge can provide this sort of directive regardless of the will of a majority.

      It's also quite conceivable, per a comment above, that someone informed the chief judge that there was much more that could come out if they allowed the clown show to continue and the order reflects a desire to find an out with the least amount of collateral damage.

    4. That's plausible to me. I'm done predicting in this case--except that Flynn WILL ultimately be exonerated. The courts will have no choice in the end.

  12. Meanwhile all of this is going on w/Flynn's case Sally Yates today offers up courtesy of Fox:

    - Speaking further on the Flynn investigation, Yates said she supported the probe. She also supported Flynn's prosecution for providing false statements to the FBI, stating that Flynn's lies were "absolutely material" to the investigation. She said that the Justice Department's decision to dismiss Flynn's case was "highly irregular," and that in her nearly 30 years as a federal prosecutor she had "never seen" anything like it.

    Sticking to the script still I guess. I hope we have all the texts, voice mails, emails, ear swabs, and eyelashes of these people we need.

    1. "absolutely material" to the unpredicated, wholly concocted, illegal investigation. But "in her nearly 30 years as a federal prosecutor," she's never seen a bogus prosecution that was based on an illegal investigation dropped due to prosecutorial misconduct.

      IOW, Yates has no experience with actual justice. When she says she's never seen anything like it, I believe her.

    2. This is an important takeaway.

      To the extent that any of these people are sincere, they are unable to distinguish between a properly predicated, well-run investigating and the partisan sham that they conducted.

    3. So is it grossly negligent or extremely careless? Heard this comparison somewhere else before. LOL.

  13. "What does it accomplish, except draw attention to the outrageousness of Sullivan's actions?"

    FWIW, my view is that it wasn't intended to accomplish anything. Maybe a few judges in the en banc panel have some theory to dispose of the case through disqualification, but my money is still on delay.

    Of course I could be wrong, but (surprise!) I think I'm right.

  14. Having done some intensive navel gazing about this, here's my speculative take du jour:

    I think the Appellate Court is more clever than we may have given them credit. I think they baited Sullivan into filing a Motion for Rehearing -- because if the full court had a majority that wanted to take up the Mandamus and rehear it, they had plenty of time to vote to do so without Sullivan filing a motion for it. They did not do so, forcing Sullivan to file a Motion for en banc rehearing. And then the grant it!

    IOW, there was no reason for the court to sit on it's hands if it wanted to rehear the Mandamus, unless they wanted to force Sullivan to make the request.

    And once Sullivan files a Motion for en banc rehearing, and the court accepts it, Sullivan has made himself a party to the case.

    But 455 says if the judge becomes a party to the case, he must disqualify himself, because he's no longer an impartial umpire, but rather a party who has an interest in the outcome.

    Catch-22! Appellate Court sits on its hands, forcing Sullivan to file the motion to rehear, thus making himself a party to the case, which disqualifies Sullivan from remain the judge in Flynn's case!

    Disqualification means the case is reassigned, and the whole Mandamus mess, and Sullivan's goofy Amicus appointment and hearings -- trying to second guess the DOJ authority to drop the case -- all become moot without need for Appellate Court making a decision it would rather not make, by disqualification of Sullivan and reassignment to a new judge.

    Assuming the new judge isn't political, he looks at the Motion to Dismiss, with prejudice, and defense's concurrence with it, signs the papers, and says, "were done."

    Appellate Court eliminates a precedent of granting Mandamus before the trial Court ruled on the motion in dispute, and avoids having to publicly chastise Sullivan for being a rogue judge, and Flynn's case gets dismissed as it should have weeks ago.

    SO rather than simply passively seeing an appealing exit ramp to get away from Sullivan's judicial Dumpster Fire, it appears to me the Appellate Court actively set a trap for Sullivan, and forced him to step into it by his filing the motion for en banc rehearing, which triggers 455, allowing them to disqualify him for being a party to the proceedings, and forcing Flynn's case to be reassigned to a judge who is hopefully not insane.

    Very clever judges on that Court, or so it seems to me.

    1. EZ- you've got the bottom line of where this will probably end up spot on. I'm not sure the Ct App 'baited' Sullivan into filing the motion for rehearing, but who knows what happened? It did look like the Ct App was happy to let the time periods expire and the Mandamus order would have taken effect already.

      Where the Ct App has been clever is by tying Sullivan's application for the rehearing directly to the only rule possible 35(b)- which is only available for a 'party' to the case. Thus, he must 'Be' a 'party' to have filed for the rehearing. But, if he maintains that position, then he has a mandatory recusal under 455, then the rest of your scenario can play out.

      Pointing this out ahead of the hearing seems to be a courtesy (?) of the Ct App to let Sullivan fall on the sword before the hearing, so they can avoid even holding the hearing. If Sullivan doesn't, and he very well may not, based on his behavior so far, then it will be a very interesting hearing, as Sidney Powell has not shown any indications of pulling punches!

      Interestingly, Powell in her brief has already argued quite well he's not a 'party' as a judge, so the end result of that argument is he's not allowed to file the request for the rehearing. Maybe she'll reverse that as a practical decision? Or just argue the competing theories? Either way, Sullivan loses- either he's not allowed the rehearing, as not being a party, or he has to recuse himself as a party.

  15. @EZ

    "Assuming the new judge isn't political, he looks at the Motion to Dismiss, with prejudice, and defense's concurrence with it, signs the papers, and says, 'were done'."

    And if the new judge *is* political...

    FWIW, 10 judges (not including Sullivan) on the DC District Court were appointed by Clinton/Obama. Four by Trump.

    Including such known apolitical judges as James Boasberg, Amy Berman Jackson and Rudolph Contreras (who has already recused himself from this case).

    Just sayin'.