Saturday, August 8, 2020

McCarthy Re The En Banc Flynn Mandamus Rehearing

Andy McCarthy has a pretty thorough review of how the Flynn case got to where it is now: Awaiting a full DC Circuit rehearing of the Petition for Mandamus that originated with Sidney Powell, who leads Flynn's legal team. What has everyone talking is the recent order by the Court of Appeals directing the parties to specifically address two issues that were not part of the previous focus in court--although Powell has addressed one of them in her briefing. Those two issues are intertwined, in such as way that, as commenter Tom Bop has pointed out, this framing of the problem leaves Sullivan in a damned if you do damned if you don't position. Here are those two issues that must be addressed:

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

The problem, again paraphrasing Tom Bop, is that if Sullivan is NOT a party to the proceeding, then ... What's he doing requesting a rehearing? OTOH, if Sullivan IS a party to the preceeding, then isn't he ipso facto partial--and why has he not complied with the deadlines that other parties are required to comply with? In either case, Sullivan should be disqualified.

Many of us, when we heard that Sullivan's petition for en banc rehearing had been granted, initially feared that this meant simply more delay--that the liberals who are the majority of the DC Circuit were willing to let Sullivan keep the clock running to prevent Flynn from becoming a player in the presidential campaign. The Court's direction that these two issues be addressed changed that thinking, and McCarthy reflects that change in thinking to reflect a position that is similar to that espoused here by Tom Bop.

The bottom line for this new look on what's happening behind the scenes is that, as everyone knew, Sullivan's shenanigans present a real problem for the Judicial Branch generally--irrespective of whether you're a liberal or conservative in judicial thinking. It's a particular problem for the Chief Judge of the DC Circuit, Sri Srinavasan, because Sidney Powell explicitly and strongly relied on a case decided by him, and which appeared to be dispositive with regard to the Flynn case. Further, that case, a bit of a signature decision for Srinavasan. In fact, while the Fokker case was decided before a more recent SCOTUS case that addressed similar issues, Srinavasan's decision appears to be very much in harmony with the SCOTUS thinking that was enunciated in very strong terms by Justice Ginsburg. As McCarthy points out, for Srinavasan (who is said to have ambitions to join the SCOTUS) to basically overrule himself and put himself at odds with Ginsburg, is "not a good look."

[Clarification: The SCOTUS case in question, US v. Sineneng-Smith, was a 9-0 decision just this past May, authored by Justice Ginsburg, in which she excoriated the 9th Circuit in no uncertain terms for "depart[ing] so drastically from the principle of party presentation as to constitute an abuse of discretion." Read more about it here and here. That Sullivan should have attempted to insert himself as a party in the Flynn case, or to insert an "amicus" as a party, flies in the face of this unanimous SCOTUS precedent that was handed down while all this Flynn fiasco was in progress.]

Which is simply to say that Sullivan's antics are a real pain for all concerned, and not least for the liberals on the DC Circuit, who will not be eager to place Srinavasan in a questionable position.

This is where McCarthy comes in:

Should Judge Sullivan Be Disqualified from Flynn Case? An Appeals Court Is Asking
D.C. Circuit judges seem disturbed by the degree to which Judge Sullivan has exhibited bias in Flynn’s case.

After reviewing other opinions (notably by a highly regarded conservative judge, Michael Luttig), McCarthy looks at how the case got to this point.

He points out that, while at first glance the Flynn case might appear to be politically charged, as it was presented to the Court of Appeals it took on a very different look. There was, in fact, nothing of politics that should have influenced Sullivan's actions. Instead, the aggressive anti-Flynn approach that Sullivan adopted "strongly suggest[ed] a loss of judicial perspective" but, even worse, threatened to put the Judicial Branch needlessly at odds with the Executive Branch. Even in these days, it seems, that's a disturbing development for most judges. No judge--except, seemingly, Sullivan--wants to appear to be a puppet to political masters. Thus, McCarthy writes:

In modern times, there are enough blatantly politicized judicial decisions that people can be forgiven for assuming that partisanship always trumps law. Indeed, in the three-judge panel decision, the two majority judges who ruled in Flynn’s favor were Republican appointees, while the dissenter was a Democratic appointee.
Nevertheless, the mandamus litigation in Flynn’s case is not a brute political matter. Anyone who listened to the oral argument could tell how reluctant the judges seemed about issuing a mandamus writ against Judge Sullivan, even if they were convinced that he was wrong on the law. Furthermore, the main Circuit precedent, United States v. Fokker Services B.V. (2016), which clearly indicates that the Justice Department’s dismissal motion should be granted, was written by Chief Circuit Judge Sri Srinivasan. He is often touted as a potential Supreme Court nominee in a future Democratic administration. For him, then, the case is a Catch-22: Walking away from his own reasoning in Fokker would be a bad look, while ruling in Flynn’s favor would be very unpopular among Democrats. In addition, we should note that any of the Circuit’s judges could have asked for en banc review by the full court. None did. The case is being heard because Sullivan himself pressed the issue.

That last point, which many other commentators have also stressed, is important for our purposes. By allowing the deadline for a petition for rehearing to pass without taking action, the Court certainly appeared to be giving Sullivan an open invitation to simply go away. As it was, Sullivan ignored the invitation, but in doing so he filed his petition a day past the deadline.

In those circumstances, Sullivan's petition appeared to be cruising for denial, and yet it was granted. Why? McCarthy argues that, in their initial framing of the issue to be argued, the Court was signalling that they knew the Flynn case should be dismissed. Here is how the issue was initially framed:

“The parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired”.

I think McCarthy has a strong argument in favor of his assessment. Here's how he puts it:

The judges seemed to be signaling that they know the case should be dismissed, but they’d prefer not to slam a longtime district judge if there is some way to avoid doing so. Perhaps they could deny the writ, but couch the denial in a way that reminded Judge Sullivan that a court must neither take over the prosecutor’s role nor probe the executive’s decision-making in a matter that the Constitution commits to executive discretion.

But that was followed by the order in which the parties were instructed to examine Sullivan's impartiality as well as his status to be participating in the case as he has attempted to do--as a party. Clearly the Court realizes that Sullivan is imposing on it for political purposes. They know that Sullivan has no legitimate judicial justification for the actions he has taken, but he's presuming that he can force the liberal judges on the DC Circuit to also abandon their own appearance of impartiality to side with him in a blatantly political manner:

Manifestly, at least some of the Circuit’s judges (I’d wager most of them) are disturbed by the degree to which Judge Sullivan has exhibited bias and become invested in Flynn’s case.

McCarthy further argues that, while it might have been one thing for the original three judge panel to deny the petition for mandamus and give Sullivan one more chance to get things right, Sullivan has pushed the case far beyond that point:

For one thing, Judge Sullivan retained his own counsel to argue the case on his behalf before the panel, as if he were a party. Then, when the panel’s decision did not go the way he wanted it to go, he took the highly unusual step of seeking en banc review. As the Justice Department pointed out, Sullivan did not have standing to seek reconsideration; he is not a party and did not comply with the rules government officials are supposed to follow before seeking a rehearing. 

In other words, Sullivan--for his own transparently biased and political reasons--is grossly imposing on the good will of the Court of Appeals and their reluctance to publicly shame a judge, even one whom they know is misbehaving.

More to the point, by seeking full-court reconsideration of the mandamus matter when both the Justice Department and Flynn are seeking dismissal of the case, Sullivan is both causing prejudice to the defendant and stoking suspicion about the executive branch’s motives. How, then, could Sullivan continue to be considered a fair and impartial judge, fit to rule on the Justice Department’s dismissal motion?

And so McCarthy concludes--in terms similar to commenter Tom Bop's views--that the Court of Appeals, having afforded Sullivan every opportunity to come back in off the limb he has positioned himself on, may finally be ready to put an end to this grotesque miscarriage of justice. The straw that may have broken this camel's back may be that Sullivan's antics are now seen to be a potential threat to the reputation and public standing of the entire Judicial Branch:

That question may signal something about the wisdom of the D.C. Circuit judges that I previously failed to appreciate. The Justice Department’s contention that Sullivan lacks standing seemed compelling to me. I was surprised when the Circuit appeared to ignore it in granting Sullivan’s request for full-court review; I thought they’d deny it and let the panel’s ruling stand. But is it possible that the Circuit saw this as a graceful off-ramp? When none of the Circuit’s judges asked for full-court reconsideration, that signaled to Sullivan that if he wanted it, he would have to ask for it himself. The Circuit judges probably calculated that if the irascible Sullivan made a formal application for rehearing en banc, it would be manifest that he had transformed himself into a party in the Flynn case. Then the Circuit could use the disqualification rule to nudge him aside for the sake of maintaining the judiciary’s reputation for objectivity. That would avoid all the downsides of issuing a mandamus writ while gently reminding lower court judges that they are supposed to remain umpires in these contests, not become one of the players. 
To sum up, whatever one may have thought about the gravity of Sullivan’s irregular behavior back in May, he has now clearly crossed the Rubicon. It is incumbent on him to recuse himself. If he can’t bring himself to do that — a failure that would further demonstrate a lack of judicial detachment — the D.C. Circuit should disqualify him. Either way, the case should be reassigned to a new judge, who should promptly grant the Justice Department’s motion to dismiss. 


  1. In the second full paragraph, is it a typo and do you mean "partial"?

    "The problem, again paraphrasing Tom Bop, is that if Sullivan is NOT a party to the proceeding, then ... What's he doing requesting a rehearing? OTOH, if Sullivan IS a party to the preceeding, then isn't he ipso facto impartial ..."

  2. Another typo: "Powell has addressed one OF them...."
    And, a friendly amendment, for you to clarify early, what McC makes clear later:
    "while the Fokker case was decided before a more recent...." assumes everyone knows that case.
    While most current readers likely do know, future readers may not.

  3. "The judges seemed to be signaling that they know the case should be dismissed, but they’d prefer not to slam a longtime district judge if there is some way to avoid doing so."

    What about General Flynn? None of these wearers of black robes seem concerned at all about him - but are more concerned about watching Sullivan make a mockery of the court for a political cause. Very telling indeed to see where their sympathies lie - and it is not with General Flynn.

    Perhaps McCarthy, if he hasn't previously (I'm sure he has), should write in a following column about Chief Justice Roberts written rebuke of Trump's comment about an Obama judge: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” It seems obvious this group of "extraordinary" appeals court judges are doing their level best to save the reputation and career of a judge ahead of the rights of the defendant in a case dropped by the DOJ.

    Talk about travesties. But it sure does reinforce Trump's remarks spoken in easily understood layman's prose for the average citizen to understand. There really are Obama judges...


    1. As between justice and their judicial caste, who did you think they'd side with? The real problem for them now is the harm Sullivan could do to their mythic reputation for impartiality.

    2. As a citizen, one would think these judges would be on the side of justice, not a judge that has become a political activist sitting on the bench. That is what any citizen expecting justice would ask for.

      These appeals court judges are quickly approaching the precipice of deserved ridicule; making a mockery of the law and the courts. If they have a "problem," it is one they have made for themselves by failing to take action sooner and ending this political exercise. Perhaps Sullivan's reputation will not be the only one tarnished should this farce continue...


    3. Or the irreparable harm they themselves would do to that mythical reputation with any ruling further enabling Sullivan's already grotesque judicial malfeasance.

  4. "*gently* reminding lower court judges that they are supposed to... not become one of the players".

    That it has become necessary, to "remind" judges of this, is quite a Tell.
    Unless I hear of a prior (famous) Fed'l case, which was so (hyper-)politicized, I must express amazement that the Circuit would put such priority on "gently reminding" (i.e. coddling) Sully and his colleagues, at the expense of its rep for preserving justice.
    If this travesty doesn't call for less-gentle responses, what must occur, to move this Branch to take strong stands?

    Are they really that ignorant, of increased public suspicion of the Swampiness of all levels of gov't, or are they under major blackmail pressure, or what?

    1. Most of them lead highly insulated lives--no criticism, everyone who comes before them cringing and 'your honoring' and kissing their bums.

    2. Yeah, and nowadays, they read Woke BS in elite MSM outlets, law jnls, etc.

  5. Well this IS NOT encouraging:

    1. All based on NPR, whose word on anything of importance "isn't worth a bucket of warm ****".

    2. Same rumors happened with the Horowitz report and it ended up being accurate.

    3. Even if it's true, wouldn't you think it doesn't at all mean Brennan or anyone else is in the clear for good? The investigations will continue for many long months if Trump's reelected, maybe even years. There should be lots more shoes dropping and lots more people talking.

      At least I'd think so...

    4. "Same rumors happened"?
      Please specify which ones actually qualify as "same".
      I'll bet, that the "similarities" are superficial, i.e. his report actually *exonerated* no one, despite Comey's crowing about that.

    5. "Same rumors" ... Same types of rumors, no criminal referrals, properly predicated

      If there are rumors that Brennan is not being indicted, I figure they're 50/50 at least.

      This is not inconsistent with recent discussions on this blog that Brennan seemed to have been pretty careful about how he framed the Steele dossier in the ICA.

      It would be disappointing but not shocking if he managed to avoid criminal exposure.

    6. "The investigations will continue for many long months if Trump's reelected, maybe even years. There should be lots more shoes dropping and lots more people talking."

      Everything has a shelf life and that time has come and gone for 98% of Americans outside the beltway. It is too convoluted, too "sprawling", rapidly fading into ancient history (never the average Americans strong suit) with too many major personal concerns intervening and no Big Bang convictions, only vague governmental fraud (a redundancy to most Americans) or process indictments. No matter what nominal party wins in 2024, much less 2020, it will be relegated to a minor esoteric footnote in history, if not scrubbed entirely.

      "Unfortunately, the clock is ticking, the hours are going by. The past increases, the future recedes. Possibilities decreasing, regrets mounting."
      Haruki Murakami

    7. How about stadiums having exotic predators from across the known world maul enemies of the woke Left? Surely that will distract the masses from Washington's terminal dysfunction.

  6. No it's not. But I cannot imagine that Barr would come out of retirement, or spend the last 6 months going on television and talking as much s**t as he has unless he's confident he's gonna take at least a couple pretty significant scalps.

  7. What's Flynn got to tell the world that Sullivan/democrats are trying so hard to keep him from saying?

    1. Why is Trump soo bad, a former registered Democrat who is an amalgam of Democrat and Republican views (most people in my opinion), that Sullivan/Democrats are trying soo hard to keep him from saying?

      D anna T

    2. He can certainly speak first hand how the Democrats operate and extract vengeance from their political opponents. We hear the generalities of his ordeal second hand. I've seen him speak before. He's quite effective. I would like to see him tell of his experience from HIS view. Aside from that, I think he could, if he desires, be a very effective campaigner on behalf of the President.

      Then there is also this possibility of him being brought back into the cabinet somewhere. Oh how the Dems don't want that.

  8. Did this just break wide open?

    1. I'm in the middle of transcribing the interview, so we'll have a searchable version. I'll have additional comments later.

    2. Matt Taibbi has unpacked his Schrage scoop here:

      Its behind Taibbi's paywall. I've pretty much stopped paying for 'news' on the internet, but for some reason was motivated to ante up $50 for this one. FWIW, ever since reading Taibbi's description of Goldman Sachs as a giant vampire money-sucking squid following the events of 2008, I've enjoyed his writing (if not always his political ideology). Now I can pay for it. :)

    3. And, Taibbi wrote about *Halper*'s pal Schrage this morning, see :

      "In a taped conversation on January 10th, 2017, Halper advised Schrage not to bother trying to get a job with Donald Trump’s new National Security Adviser, Michael Flynn.
      This told Schrage that Flynn wasn’t “going to be around long,” and was “*really fucked*.”

      Why was Trump’s new security chief in trouble? Because, Halper told him, “opponents… so-called enemies” of Flynn, were “looking for *ways of exerting pressure*.”
      Halper added that Flynn would be “squeezed pretty hard” by these enemies, and his “reaction to that is to blow up and get angry,” which was why he was “fucked” and “so unsuitable.”

  9. Mr. Wauck,

    Another revelation:

  10. "The straw that may have broken this camel's back may be that Sullivan's antics are now seen to be a potential threat to the reputation and public standing of the entire Judicial Branch."

    That train left the station a long time ago.