Flynn Case Finally Dismissed

H/T to Anonymous commenter. Techno Fog reports that Sullivan has finally dismissed the Flynn case, following the Pardon. This comes after he started making noises about attempting to contest the motion to dismiss as well as the pardon, by inviting more briefing. I take it someone higher up the judicial food chain finally told him: Enough already! Knock-It-Off!

If this is it, I have to say I find it very unsatisfactory. Moreover, if Durham doesn't come up with some significant indictments I'll be very angry at the DoJ handling of the Flynn case--my only reason for patience in the past was that I thought DoJ was keeping cooperating witnesses under wraps. But there's more going on in the world than this, so I'll just leave this to Techno Fog:

Accompanying Judge Sullivan's order is a spiteful opinion supportive of the broader Crossfire Hurricane and Flynn investigations.

He labels the DOJ dismissal as "pretextual" and "dubious"

Full doc:https://t.co/09DHj4brlt pic.twitter.com/g7qDwdosE8

— Techno Fog (@Techno_Fog) December 8, 2020

Highly Recommended: Why Sullivan MUST Disqualify Himself From The Flynn Case

I wish I could simply paste in the entire article by Leslie McAdoo Gordon:

Here’s Why Judge Sullivan Must Disqualify Himself From Michael Flynn’s Case

Sullivan’s apparent animus toward Flynn's attorney and his fixation on Flynn being punished demonstrate bias in this case — sufficient to require his disqualification.

It's really well reasoned and expressed. As the subtitle indicates, the author focuses on two primary issues. 

First, Sullivan has exhibited extreme and improper bias against Flynn's attorney, Sidney Powell. McAdoo Gordon begins this section by pointing out disparities in Sullivan's treatment of Powell, as compared to the other attorneys involved--a manifest lack of respect. But she then moves on to an even more serious issue demonstrating Sullivan's animus against Powell--his unfounded and, really, rather unhinged attempt to paint Powell as in some way unethical. I say unhinged because this attempt follows a pattern of conduct by Sullivan--beginning with his accusation of "treason" leveled against Flynn, that appear to demonstrate appalling ignorance of basic matters both of law as well as of legal ethics. That, to me, is most easily explained not by ignorance per se but by an animus that is so consuming as to lead Sullivan to make grossly unfounded accusations in open court:

Not Exactly News: Sullivan Continues To Delay

In a totally transparent delaying tactic in the Flynn case, Sullivan issued an order requiring the government to "authenticate" FBI documents that that were mistakenly scanned without removing "sticky" notes bearing dates. The government has already explained what happened, and indeed it was totally obvious:

Just more delaying tactics from Judge Sullivan. The unfortunate fact is that this stall campaign has worked. It’s all down to the election now whether Flynn goes free https://t.co/d6Rig0y8ph

— Undercover Huber (@JohnWHuber) October 23, 2020

BREAKING: @GenFlynn case. I'm old enough, and yet young enough, to remember when Special Counsel & holdovers misrepresented AUTHOR of notes to Judge Sullivan and he shrugged! pic.twitter.com/LMO0NuyMZT

— Margot Cleveland (@ProfMJCleveland) October 23, 2020

A commenter on UCHuber's thread noted:

He’s trying to force @realDonaldTrump‘s hand - make him issue a pardon so the dismissal motion becomes moot.

IMO: Not gonna happen. Flynn, with Powell's support, will go to the SCOTUS if that's what it takes to get the dismissal with prejudice. At some point along the way some judge will ream Sullivan a new one for disgracing the federal courts in this way. OTOH, even if Sullivan folds and grants the government's motion as written, Powell and Flynn--and probably Trump--will have plenty to say. I'd like to say Barr will, too. IMO, DoJ has a duty to speak up about judicial miscarriages and unconstitutional trespassing on executive authorities.

It's Official: Sullivan Is A Clown

Yesterday Sidney Powell demanded that Sullivan remove a letter that Peter Strzok's lawyer, Aitan Goelman, had sent and which Sullivan allowed to be placed in the Flynn court file (in what follows, below, when Powell says "the court" she means "Sullivan"). Strzok's lawyer had written to Judge Sullivan, alleging that someone had modified Strzok's handwritten notes that DOJ gave to Flynn's legal team and which were then submitted to the court. The modifications consisted of adding dates, including a wrong date. 

Before considering Powell's complaint concerning Sullivan's conduct, here is the relevant portion of Canon 3(A)(4) of the Code of Conduct for United States Judges, to which Powell refers:

Except as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested.

With that in mind, this is what Powell wrote with regard to Sullivan's handling of the letter from Goelman in her MOTION TO DISQUALIFY JUDGE EMMET SULLIVAN AND FOR OTHER RELIEF:

Sidney Powell Demands That Sullivan Recuse From The Flynn Case

As she promised at the last hearing, Sidney Powell has filed a motion today in which she demands that Sullivan recuse himself from any further involvement in the Michael Flynn case:

MOTION TO DISQUALIFY JUDGE EMMET SULLIVAN AND FOR OTHER RELIEF

There's not much point going through the details at this time. We've seen most of Sullivan's antics described before--beginning with his outrageously ignorant claim that Flynn had somehow committed "treason," the only criminal offense that is actually defined in the Constitution:

Section 3.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Even the Team Mueller attorneys were stunned when Sullivan made that incredible assertion in open court.

There is one issue that Powell notes that I do want to draw attention, further down. First, however, to give some idea of the red meant that Powell's motion contains, here is an excerpt from the table of contents:

Might Sullivan Dismiss The Flynn Case--Without Prejudice?

Shipwreckedcrew has a provocative article today: My Take on Yesterday’s Hearing on DOJ Motion to Dismiss Prosecution of Gen. Michael Flynn. He doesn't offer much analysis of the actual hearing--which dragged on for an almost unconscionable span of time. However, he offers a prediction as to how he believes Sullivan will rule on the DoJ motion to dismiss.

He believes that Sullivan will ultimately grant the motion to dismiss--but with a twist. DoJ is asking that the case be dismissed with prejudice, meaning that DoJ would not be able to reinstitute prosecution of Flynn on the same charges. SWC believes that Sullivan will follow the advice of Andrew Weissmann, and dismiss the case without prejudice. And that would mean that DoJ could--at least theoretically--reinstitute the prosecution.

I'm treading on ground here that I freely admit is well beyond my experience. SWC doesn't seem to see much problem with this outcome, but I'm not so sure.

SWC sees this outcome as protecting the interests of US district courts generally and, to that extent, as justifiable.

First, you need to understand the “equities” of Judge Sullivan in this dispute.  He’s fighting against the idea that a district court judge like himself does not have the authority to “check” what he might see as “abuses” in the decision-making process of the Executive branch AFTER they bring matters into his court. On this issue, I suspect he’d have broad support from district court judges all over the country. They are the gatekeepers to the federal court system. By asserting a strong role for the trial judge under Rule 48, Judge Sullivan — aided by Judge Gleeson — is saying to DOJ:

“You brought this case, you occupied my time, you made representations and arguments on the record to me and asked me to do certain things in my role as a district court judge, and you don’t get to just walk away from all that without an explanation that is to my satisfaction.”

He is defending institutional turf that he believes belongs to the Judiciary once a case is filed — and in this case a guilty plea is entered.

My problem with this line of argument is that it seems to me to ignore the whole reason for having courts to begin with--to see that justice is done. There is no mention here of the one person in the process with by far the most at stake: the defendant, in this case Michael Flynn. If we grant for the sake of argument that Sullivan may feel his time has been wasted and that DoJ's feet should be held to the fire, does the bankrupted Michael Flynn have no equities in this? What about his good name? This result--dismissal without prejudice--would mean that Flynn would not "get to just walk away." 

Sullivan Makes A Pig's Breakfast Of The Hearing

Sullivan is a shocking idiot. Remember how he previously had no clue about the constitutional definition of "treason"? Now it turns out that he has no clue about the First Amendment right to petition the government. He thinks there was something improper about Sidney Powell writing a letter to AG Barr!

From Wikipedia, about the right to petition the government:

In the United States the right to petition is guaranteed by the First Amendment to the United States Constitution, which specifically prohibits Congress from abridging "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances".

Although often overlooked in favor of other more famous freedoms, and sometimes taken for granted,[1] many other civil liberties are enforceable against the government only by exercising this basic right.[2][1]

According to the Congressional Research Service, since the Constitution was written,[3]

the right of petition has expanded. It is no longer confined to demands for “a redress of grievances,” in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters. The right extends to the "approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition."

So now check this out (again per Leslie McAdoo Gordon). Note that Sidney Powell is pulling no punches (JS = Judge Sullivan):

The DoJ States Its Position In Flynn Case

Per Leslie McAdoo Gordon, these are the four points Hashim (“Hash”) Mooppan presented:

Mr. Mooppan has 4 points. 

First is that there is no case or controversy, which Sullivan said he wasn't going to discuss. 

He's saying it's not a separate issue. It's one of the govt's grounds for dismissal. 

Second issue: Court isn't a rubber stamp, but the examples Gleeson used don't apply here. This isn't a case of a rogue prosecutor. This case is the "considered view" of the US. 

3rd: The US has exclusive authority to dismiss; Fokker give court no role to disagree with DOJ's determination. Nixon and Fokker are controlling. 

4th: materiality. DOJ cited Safavian - he gives the page. Says that is about whether a jury "could" convict, not "should" and certainly not whether the DOJ "should" pursue. 

After Mooppan, Ken Kohl reviews some of the evidentiary problems with any prosecution of Flynn. Brief examples:

Barnett 302

Comey's testimony to HPSCI: 

saying it was a "close one" - he doesn't know if Flynn lied. Kohl says that would be a problem for DOJ. DOJ doesn't prosecute people unless they are SURE there is a crime; not that there might be.

Calling Strzok as witness? Who misled the FISC?

It's simply a weak case, even assuming there had been a reason for it to begin with.

I assume Sullivan will deny the motion--because he can. To delay.

Has Sullivan Found A Way To Keep Flynn Case Going Past Election?

 H/T to commenter Bruce from Oz, who points out:

Sullivan has granted 'Leave for filling' on the Goelman letter (also contains the letters in question). This is going to drag on.

Aitan D. Goelman is Peter Strzok's lawyer, and this is his letter. In the letter Goelman complains that Strzok's handwritten notes have been "altered." What he means is that dates have been added to show the date of the notes (these additions by document reviewers are set off in boxes), and he complains that one date is inaccurate. He also complains that Sidney Powell has violated an order not to supplement pleadings until the government's "Brady" production is complete.

You can view the two pages of notes that Goelman is complaining about by following the link above.

Roscoe Davis argues that this signals that Sullivan will seek to hold additional--evidentiary--hearings to drag the case past the election. Davis also points out that none of this has anything to do with Flynn himself, or with the DoJ decision to dismiss the prosecution. 

I hasten to add that Sullivan allowing this letter to be filed doesn't mean that there actually will be hearings on the matters discussed in the letter--nor does Goelman request any particular action. It's all up to Sullivan. However, it seems to me that if Sullivan seizes on issues of this sort to prevent expeditious dismissal of the Flynn case, then AG Barr needs to find a way to play some hardball with the Judicial Branch, which is increasingly out of control. Joining an appeal to the SCOTUS would seem appropriate.

Flynn Case: This Is Simply Evil

But we know that liberals are evil, right?

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 Petition For Mandamus Denied

It comes as no surprise that the Obama judges on the DC Circuit have denied the petition for mandamus in the Flynn case and sent the case back to Sullivan for further abusive political proceedings and delays. What comes as somewhat of a surprise is that they did so without spelling out virtually anything in the way of guidelines for how Sullivan may conduct a hearing. Specifically, the per curiam opinion allows Sullivan's appointment of an "amicus" to stand and states only:

For the foregoing reasons, the Petition for a writ of mandamus is denied. As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.

This is no more than a fig leaf, a brief nod to rule of law while providing free rein to Sullivan to conduct a virtually unfettered political inquisition in a case that DoJ declines to prosecute. While Sullivan will ultimately be denied his wish to prosecute--with the assistance of a rabid "amicus", a friend of Sullivan but no friend of justice--the abuse will continue.

Strikingly, the opinion, in declining to remove Sullivan for bias, refuses to discuss the issue of Sullivan's claims that Flynn has committed perjury by withdrawing his plea--an extraordinarily tendentious claim that would prevent virtually any defendant from fighting back against an overbearing government that had coerced a guilty plea.

Overall, the opinion of the Obama judges is remarkably shallow, given the extremely serious Separation of Powers issues that are involved in this case. In essence, the Obama judges simply sidestep those issues, claiming that the only consideration that matters is that a final order must first be entered by Sullivan. The claim is that that will be time enough for the Executive to protect its interests and Constitutional rights on appeal. That would amount to an intolerable claim of judicial supremacy--except that we know that such a claim would only be made against Republican administrations by Democrat judges. The lack of principle in this is breathtaking--it's about the election, and that's it. If you want to make yourself stupider, I'm sure there will be no lack of blogs and articles dissecting this travesty of legality.

In the circumstances, my view is that DoJ has no choice but to appeal to the SCOTUS in order to defend the Executive's constitutional status as an independent branch of government with its own proper powers. Whether DoJ appeals or not, however, make no mistake about this: This is a victory for Obama, through his judges. Flynn will remain muzzled throughout the election campaign and a powerful voice of criticism against Obama will be silenced for the time. It's a shameful defeat--even though I very much doubt it will ultimately stand--for our constitutional order. My personal hope is that DoJ will appeal, simply to force Chief Justice Roberts to declare himself.

In what follows, I will quote extensively from the dissenting opinions of Judges Henderson and Rao. The two judges split the dissent. Henderson dealt with the issue of Sullivan's outrageous bias, while Rao dealt with the harm to the Executive. What I've done is to delete references for the sake of readability. I believe their opinions are clear enough to be read with profit by non-lawyers. You can access the full opinion here. Both opinions are outstanding. Henderson's moral outrage at justice denied is moving. Rao's powerful defense of the Constitution shames the Obama judges--if they were capable of shame. The excerpts follow:

=========================

UPDATED: Link For Tomorrow's Flynn Hearing

UPDATE: I won't try to predict. Here's some commentary coming at the conclusion, from Leslie McAdoo Gordon. I believe Gordon is correct about Wall's complaint--that "WB" was quite dishonest throughout:

Sidney raises all the liberty harms to Flynn and urges the court to see the case for what it really is and put an end to it. 

Wall says he "feels a bit rope-a-doped!" He points out how WB just keeps minimizing everything she's said before about the factual development. This is very strong language from an appellate lawyer. It's basically accusing the other lawyer of lying. He finds WB dishonest (I agree). 

Wall urges the court to issue the writ, saying that what Sullivan clearly plans to do is outside the lines and inappropriately pits the Executive and Judicial branches against each other and the Court should not permit that. 

The case is submitted. They will now retreat into their ivory towers and debate what to do.  There is no way to tell when they will decide it.

My gut reaction is that they aren't going to issue the writ.  Of course, I thought that the last time too & they did.  Henderson and Rao are still on board with the writ, but Wilkens, Rogers, Tatel, Millett, Pillard, and Garland at least I think are not.Griffith may be a no also.

Of course, "not issuing the writ" does NOT (necessarily) mean giving Sullivan a free rein.

On the Flynn hearing tomorrow, August 11, in the DC Circuit -

A link to get to the live audio stream (9:30 am EST) can be found here:https://t.co/yTwKCET6oy https://t.co/q2ha3F82BG

— Techno Fog (@Techno_Fog) August 10, 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.

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 https://www.law.cornell.edu/uscode/text/28/455

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.

FOUR UPDATES: Flynn Case: There WILL Be En Banc Review

Below is Techno Fog's tweet. We'll undoubtedly be getting analysis later. Here's my take for now.

Obviously this is all about politics. Duh! It's all about delay. Duh!

But delay of what?

Delay to prevent Michael Flynn being free to participate very vocally in the Trump campaign? Maybe.

Or could it be ... or could it also be ...

Delay to prevent Michael Flynn being used as a witness in the expected developments of the Durham investigations--expected by Labor Day? A witness under investigation for false statements isn't a very useful witness--even when DoJ has moved to drop the prosecution.

What will AG Barr do to deal with this? We're gonna find out soon enough. It's hard to believe he hasn't been thinking ahead on how to deal with this development.

Flynn update:

The Order compelling Judge Sullivan to dismiss the case is vacated.

The case will be reheard by the court sitting en banc.

Oral argument is set for August 11.

One issue of note: whether there are "no other adequate means to attain the relief" desired. pic.twitter.com/rhdp3CePud

— Techno Fog (@Techno_Fog) July 30, 2020

UPDATE 1: I hadn't read Lee Smith's new article before dashing off this post, so I didn't have Susan Rice in mind. However, reading Smith's article, it dovetails nicely:

What Does Susan Rice Bring to a Biden Ticket?

Obama’s National Security Advisor is on the short list, but why?

Nominating Rice as Biden’s VP would virtually ensure her immunity, protecting her from investigation or prosecution during the campaign. In February, Barr issued a memo stating that no investigation of a presidential or vice presidential candidate can be undertaken without his written approval. Because it is nearly inconceivable that Barr would expose himself to this type of scrutiny or risk compromising the election, Rice would be safe. Crucially, it would also cut off the investigation at the rung below her, thereby insulating Obama and Biden.

So, Keep Flynn quiet before the election--no "lock 'em up"--and keep Obama, Biden, Rice safe. Make's sense. And hope for a miracle in November--if Dems beliefe in miracles.

There's also the unmasking angle that plays into both Flynn and Rice. Barr is definitely definitely doing a deep dive into the unmasking.

UPDATE 2: Obama Today:

"Bull Connor might be gone, but today we witness with our own eyes, police officers kneeling on the necks of Black Americans. George Wallace may be gone, but we can witness our federal government sending agents to use tear gas and batons against peaceful demonstrators."

 And there are still Republicans who think that by joining in the false accusations of "murder" against Derek Chauvin they would somehow buy immunity from sleazy vilification?

UPDATE 3: Shipwreckedcrew finds Lee Smith's hypothesis plausible:

And that brings us back to the merits of picking Rice.  Yes, she doesn’t offer much by way of electoral politics, and its an unknown on how she will impact voters as a candidate herself.  But if there is a real fear in the Biden camp for what Durham might do, Rice is as close as they can come to an “inoculation” to keep him at bay.

UPDATE 4: Devin Nunes weighs in--very worthwhile:

UPDATED: John Reeves Prediction In Flynn Case: DC Circuit Will Reject Sullivan Petition

I noticed that Sidney Powell used some pretty strong language yesterday while speaking to Lou Dobbs. She described the three judge panel as having "dropkicked" Sullivan into "another country" and called on "the Article III court" to uphold the rule of law from outrageous abuses--a totally manufactured case--by the FBI. Was that an oblique reference not merely to the full DC Circuit but also to the SCOTUS? Does her strong language also indicate confidence?

Appellate lawyer John Reeves is cautiously optimistic:

1) I'm going to go out on a limb here and say that the DC Circuit's failure at this point to rule one way or another on Judge Sullivan's en banc petition means it will DENY the petition. Here's why: 

2) When en banc rehearing is GRANTED, the order stating this does NOT declare which judges voted how. This makes sense, because the court does not want the parties to know ahead of time how each judge is thinking during briefing and oral argument on en banc rehearing. 

3) By contrast, if en banc rehearing is DENIED, and a vote was called for, the denial order usually lists how each judge voted--it lets everyone know which judges voted for en banc rehearing, and which judges voted to deny en banc rehearing. 

4) If en banc rehearing is denied on a contentious issue, it is not at all unusual for the judges who wanted en banc rehearing, but were outvoted, to write dissenting opinions stating why they believe en banc rehearing should have been granted. Writing legal opinions takes time. 

5) In light of the above, I believe that at some point last week, the DC Circuit voted on the en banc petition, and a majority voted AGAINST granting rehearing en banc. But at least some of the judges wanted to write dissenting opinions on the matter. 

6) Judge Wilkins, for example, would almost certainly write a dissenting opinion if en banc rehearing was denied. That is what I believe is going on right now--the court last week voted to deny rehearing en banc, and Judge Wilkins is writing a dissenting opinion on the matter. 

7) Otherwise, had there been a majority of DC Circuit judges to vote to grant rehearing en banc, it would already have issued an order to that effect last week. 

8) Thus, I am cautiously of the belief that the DC Circuit has already voted to DENY Judge Sullivan's petition for rehearing en banc, and it is just waiting for Judge Wilkins (and possibly others) to finish his (their) dissenting opinion(s) on the matter.

UPDATE: Shipwreckedcrew weighs in in support of John Reeves:

I think John is correct.  The writing was on the wall when Judge Sullivan had to file his own petition for re-hearing.  Prior to that Petition, any judge could have called for a vote on en banc review of the Panel decision, and Judge Sullivan's petition strongly hints none did. 

My recollection is that the three judges on the panel cannot call for rehearing, so Judge Wilkins could not.  But even when Judge Sullivan filed his petition, that doesn't automatically result in a vote being taken.  A judge still needs to call for vote on Sullivan's petition.

UPDATED: The Government Weighs In Against Sullivan's Petition

The Government's response to Sullivan's petition for en banc rehearing of the three judge panel's mandamus to dismiss the Flynn case is, once again, signed by a host of top level DoJ officials--signalling how seriously DoJ takes this business. It is, however, quite different from the Team Flynn response. Instead of raising separation of powers issues once again--which were covered extensively in their previous support of the petition for mandamus--DoJ focuses largely on procedural issues revolving around the propriety of Sullivan's petition to the full Circuit. That may sound dull, but it's actually rather interesting. The argument comes in three parts. In the first two parts DoJ sets out general principles quite tersely and then pretty much just swats aside Sullivan's arguments as erroneous, misguided, incorrect, and so forth.

Here we go:

The Flynn Team's Opposition To Rehearing En Banc Re the Mandamus

As most of you will already be aware, Michael Flynn's legal team, led by Sidney Powell, filed their response to Sullivan's ridiculous petition for an en banc rehearing of the three judge panel's issuance of a mandamus requiring him to dismiss the Flynn case. The whole concept involved in this is absurd under the US Constitution's separation of powers, but with Dem judges there's never any telling when politics touches on the case.

You can read the whole response here. Basically, Powell goes down the line rebutting the absurd claims of Sullivan's petition. For our purposes I'd like to contrast a central contention that Powell advances with a pretty good article by Shipwreckedcrew, written before Powell's response was public.

In addition to the legal argumentation, Powell minces no words in advancing her claim that Sullivan's actions derive from prejudice against Flynn based in totally improper motives:

Brief Update On DC Circuit Request For Flynn Response Re En Banc Rehearing

To be totally accurate, the DC Circuit "directed" Flynn to respond to Sullivan's petition for an en banc rehearing on Flynn's petition for a writ of mandamus, and "invited" DoJ to do likewise.

A number of commenters have asked what the significance of this move is. I cautioned against reading much into it. Shipwrecked crew offers an explanation that makes sense in light of what has been going on. What I mean is this. The failure of the DC Circuit to take up the matter of an en banc rehearing on its own initiative (sua sponte) certainly appears to be an indication of a lack of interest. Why, then, this "direction" and "invitation" for responses? Per shipwreckedcrew:

I believe this action only took the request of a single judge to trigger the requirement of getting a response.  It builds in at least 2 more weeks of delay.

In other words, if, say, Wilkins--the dissenter on the three judge panel--requested responses, despite the lack of interest from the rest of the Circuit, then the responses have to be filed. And there's a two week delay. At least. But that tells us nothing about the attitude of the Circuit as a whole. We can speculate all we want, but in the final analysis all we can do is wait.

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.