Is it OK if I say: I was right?
As recently as this morning there were people I regard as smart lawyers suggesting that Sullivan would hold his hearing and get the Flynn case over with. That that's what the DC Circuit told him to do:
On the upside, there are two points. First, the majority makes it very clear they expect Judge Sullivan to now act promptly on the motion to dismiss. They order him to act "with dispatch." /14
Second, they drop an important footnote about how Judge Sullivan's lawyer swore up & down at the oral argument that he was clearly, absolutely, positively, certainly, definitely not going to hold an evidentiary hearing on the motion. This is plainly a signal to Judge Sullivan./15
It's a signal that the Court of Appeals expects him to hold a dignified hearing, w/o witnesses or any other factual development of the record, & to make a prompt ruling. Subtext: grant the motion to dismiss & put this case to bed ASAP. /16
Who really thought Sullivan would do that? It remains to be seen whether he'll go ahead with an "evidentiary hearing." As for holding any sort of a hearing any time soon, much less "with dispatch", think again:
Flynn update -
Judge Sullivan has effectively pushed back the resolution of the Flynn case until after the election.
Ordered a status report (with briefing schedule) by September 21. This will include a proposed oral argument date.
11:59 AM · Sep 1, 2020·
Perhaps more disturbing, Leslie McAdoo Gordon points out that DoJ may have really dropped the ball on this, meaning, they may not have standing to even appeal to SCOTUS:
Flynn has the right to petition for certiorari by the Supreme Court. I think DOJ likely can't as it didn't petition for mandamus or formally join Flynn's. The deadline for that is 90 days from today. The case will go back to Sullivan in the meantime, however, in about 14 days./20
Never underestimate the evil of liberals. I assume that Barr is totally p*ssed at this point. It'll be interesting to see whether he can actually DO something about this.
Earlier I suggested that what was going on was a move to prevent Flynn from being used as a witness of any sort before the election. I still regard that as a possibility, especially given the transparent outrageousness of what's going on here.
UPDATE: Yesterday I stated that IMO Shipwreckedcrew was simply being wrongheaded in maintaining that the the DC Circuit had come to a correct decision--despite ignoring the substantive merits of the petition for mandamus as detailed in the outstanding dissents by Judges Henderson and Rao. Today, SWC has discovered that Judge Sullivan [Is] Playing Games With Calendaring New Proceedings In General Flynn Case. And why would Sullivan do anything else, when the DC Circuit itself played games with its decision--including delaying issuing its decision until the last possible moment?
However, SWC recovers and offers advice on how Flynn and DoJ should proceed.
To start at the end, given that DoJ likely can't appeal at this point, his general advice is that DoJ should be watching Sullivan like a hawk for any sign that he's doing anything "not in conformance" with the DC Circuit's opinion.
Problem: The DC Circuit didn't actually give Sullivan any directions at all. "Dispatch", after all, is one of those things that is largely in the eye of the beholder.
Beyond that, SWC advocates an aggressive approach to force Sullivan's hand. FWIW, here are his suggestions, and I wish them all success:
My view is that Gen. Flynn’s counsel and DOJ should take the position that they are the only two parties, and file a Joint Status Conference for just the two of them — not including amicus counsel.
... Gen. Flynn and DOJ should force the Court to enter Orders directed to amicus counsel in a way that isolates Judge Gleeson as a non-party, or force Judge Sullivan to treat him as a de facto party rather than simply an advisor to the Court.
Further, they should file the Joint Status Report tomorrow, not 3 weeks from now. The Joint Status Report should take the position that briefing is complete, no sur-replies are needed and incorporate all the briefs filed in the Circuit Court.
With regard to the hearing, the Joint Status Report should explicitly state that neither PARTY intends to present evidence outside the written record already made — hell the Joint Status Report could take the position that no hearing is needed and the motion should be resolved on the written submissions.
The Report should force Judge Sullivan to himself state that he intends to conduct an evidentiary hearing – or to concede that he does not intend to do so.
I suspect that Sullivan will have more tricks up his sleeve to continue the rope-a-dope delay tactics. DoJ has no reason to expect any help from the DC Circuit at this point.