By Robert Willmann
The opinion and order in Michael Flynn's favor in his mandamus action issued by the U.S. Court of Appeals for the D.C. Circuit on 24 June 2020 has been vacated, and a rehearing by all of the judges on the court of appeals eligible to to participate will occur (a rehearing en banc), with oral argument set for Tuesday, 11 August 2020, at 9:30 a.m. Appeals are almost always heard and decided by a panel of three judges. A rehearing by all of the judges is rare–
Although this is not good news, the law is on Flynn's side that the case should be dismissed in the trial court, as requested by the Department of Justice (DOJ). The en banc rehearing might be decided in Flynn's favor. But if the court of appeals issues a new opinion and order denying the mandamus and rules against Flynn, he will certainly ask the U.S. Supreme Court to hear the case, although it does not have to, since a decision on whether to hear the case is in its discretion.
The danger zone is a possible race against the clock if the case goes back to the trial court for Judge Sullivan to rule one way or the other on the DOJ motion to dismiss. He could then deny the motion to dismiss and end up sentencing Flynn to prison, which would result in more legal action in the court of appeals to reverse the ruling denying the dismissal and to reverse the judgment of conviction and the sentence. Or, Sullivan might sit on the case without making a prompt ruling, and if president Trump loses the election in November, the judge might then continue to sit on it until a new Attorney General is appointed, who might then withdraw the DOJ motion to dismiss. However, if Sullivan sits on the case without making a ruling on the motion to dismiss, Flynn will likely file another application for a writ of mandamus in the court of appeals asking for an order instructing Sullivan to rule on the motion to dismiss by a date certain and to stop delaying.
The order granting a rehearing en banc adds that: "The parties should be prepared to address whether there are 'no other adequate means to attain the relief' desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 67, 380 (2004)". This telegraphs that an issue for the rehearing involves one of the parts or elements of a mandamus action. When Flynn filed it in the court of appeals, we discussed here on SST the parts of a petition for a writ of mandamus . One of the three elements in the mandamus doctrine in federal court is: "the petitioner must have no other adequate means to attain the relief he desires". It was pointed out here that Judge Sullivan had not yet ruled on the motion to dismiss when the application for the writ of mandamus was filed, and that he theoretically might grant the motion to dismiss, which can produce a debate about whether the mandamus action is premature. Flynn might get the relief he desires if Sullivan grants the motion to dismiss, without a mandamus order from the court of appeals directing that he do so.
The problem with that kind of technical argument is that if the mandamus is denied and the case goes back to the trial court, Sullivan could deny the motion to dismiss, and then deny Flynn's pending request to withdraw his guilty plea and any other pending issues he has raised, and proceed to a sentencing hearing. This would cause new, unnecessary litigation in the court of appeals, through another petition for a writ of mandamus and possibly also a regular direct appeal if the sentencing of Flynn takes place.
Based on the information that has been developed in the trial court to date and the current state of the law, the motion to dismiss by the DOJ is to be granted by Judge Sullivan. To make Flynn go back through more activity in the trial court and possibly be sentenced to prison, followed by again going to the court of appeals before he can get the case dismissed, is not really an "adequate means" to get the relief that he not only desires, but which is required by law.
After the request for a rehearing en banc was filed on Sullivan's behalf, we discussed here the procedure in the court of appeals for doing so and the active judges on the court . Eleven judges were eligible to vote on whether to have a rehearing. It looked to me as if Flynn had a chance that a rehearing would not take place, but if one (or more) of the judges was recused, the arithmetic would change. That appears to have happened. The order today says that "Circuit Judge Katsas did not participate in this matter", which probably means that he recused himself. I had wondered about whether he would, because he had been a staff lawyer at the White House to president Trump starting in 2017. However, I could not tell if his job put him too close to Flynn and related matters that he should recuse himself. He was appointed to the court of appeals by Trump in 2017 and officially started on 8 December 2017.
When a request to have a rehearing en banc is granted, the order does not say which judges voted against having a rehearing. That is why this order is silent about which judges wanted a rehearing and which ones did not.
The number of judges to decide is now 10, assuming Judge Katsas is recused. This creates an interesting situation, because the Handbook of Practice and Internal Procedures for the court of appeals says: "When the Court sits en banc with an even number of judges, and the result is an evenly divided vote, the Court will enter a judgment affirming the order or judgment under review, and it may publish the en banc Court's divided views".
A tie vote by the en banc court would mean that the original order would go back into effect which directed Judge Sullivan to grant the motion to dismiss and which also vacated the order appointing John Gleeson as a friend of the court to oppose the position of Flynn and the DOJ.