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.