A rehearing is granted by the court of appeals in the Michael Flynn mandamus action


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 [1].  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 [2].  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.


[1]  https://turcopolier.typepad.com/sic_semper_tyrannis/2020/05/michael-flynn-files-a-new-action-in-a-court-of-appeals-about-the-motion-to-dismiss-and-the-appointment-of-an-amicus-curiae.html

[2]  https://turcopolier.typepad.com/sic_semper_tyrannis/2020/07/judge-sullivan-asks-for-a-rehearing-in-the-mandamus-but-that-allows-michael-flynn-to-get-more-exculpatory-material.html


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20 Responses to A rehearing is granted by the court of appeals in the Michael Flynn mandamus action

  1. walrus says:

    Is it not obvious that there is no such thing as impartial justice in the USA?
    That is the only conclusion available to those of us outside the country.

  2. turcopolier says:

    We don’ need no stinking impartial justice. That was a white attempt to hold the Black folks down.

  3. longarch says:

    I fear the Sullivan and lawyers of his ilk would be willing to dig themselves as deep as possible rather than admit defeat. Some of them probably believe that they can commit as much treason as they like, so long as a Democrat gets the presidency next, because a Democratic president is certain to pardon them.
    Perhaps the U.S. Army could send a latter-day Joseph Welch to confront Sullivan with the famous line: “Let us not assassinate this lad further, senator. You’ve done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?” Unfortunately Sullivan would probably reply, “It’s not my job to have decency, it’s my job to undermine the Constitution.”
    More realistically, perhaps the numerous misdeeds linking Epstein, Maxwell, and the Democratic party will come to light. Perhaps Sullivan will be exposed as having taken improper considerations that have impaired his impartiality. Perhaps Durham will reveal that key figures are suspected of treason and human trafficking. Perhaps Barr will shock the conscience of the nation before the election.

    A highly anticipated forthcoming report from U.S. Attorney John Durham on the origins of the Trump-Russia investigation won’t trigger a Justice Department policy against interference in the 2020 presidential race, so the review could be released in the weeks leading up to the November election, Attorney General William Barr indicated to Congress Tuesday.


  4. akaPatience says:

    Mr. Willmann, since 7 of the 10 remaining judges are either Obama or Clinton appointees, would it be fair to presume that Gen. Flynn’s mandamus will be denied, OR do judges generally want to avoid their rulings to be appealed to the SCOTUS?
    It seems likely to me they’ll just kick the ball back to Sullivan, thus allowing him to run out the clock while preventing their hands from getting dirty.
    Is there a best time in the process for a POTUS to grant a pardon? Politically, I have doubts that it would significantly harm Trump’s re-election chances if he pardoned Gen. Flynn. I’d think the only voters to get upset about it would be those already against him. And a pardon could actually cause more media light to be shed on what the FBI did to Flynn, which could be a good thing.

  5. Jim says:

    I’m surprised the full panel is choosing to hear this without any reason to do so; but un-surprised because: this stopped becoming about law on January 20, 2017.
    Clearly Sullivan cannot sentence Flynn; but another prosecutor could prosecute Flynn, which is reason Sullivan failed to dismiss case.
    The only reason.
    Sullivan wants another prosecutor, as he is not so blind to think he has that authority to prosecute Flynn.
    What is to stop President Burlesque Biden from naming a special counsel to bring charges against Flynn come next January?
    Even if Trump pardons him [for crimes the world knows he did not commit]?
    What is to stop a new special counsel from bringing charges against Trump, against Barr, against Nunes, against . . . .under a President Burlseque Biden?
    This is where we are heading with the freak show that may be coming to town.
    Trump erred by not doing what he was elected to do; and he failed doing his job in January 2017 out of real fear he would have been removed from office.
    I get that.
    But now what?
    That Supreme Court Chief Justice Roberts — it has been May, June, July, and will be August 11 since DOJ said they have no case — and Roberts sits on his ass like there is nothing to see here.
    US Supreme Court can intervene anytime they want when matters go awry.
    Here the Supreme Court itself now gone awry.
    Congress is broken, the judiciary is broken, and Trump and all those around him are marked men.
    Trump may come to rue the day he did not see to it that Treason charges were not brought against Obama and Biden, and that those two were not hung from the gallows.
    It may be Trump’s neck in a few short months. . . .

  6. elaine says:

    Colonel, There you go again crackin’ me up…true snark

  7. Fred says:

    Given the campaign speech Obama added onto the end of his eulogy for John Lewis “Its our turn now” is a plank in the party platform. All those peacefull protests, that’s just their base fighting to “Remake the country, a revolutionary notion”, as he put it.

  8. optimax says:

    A black person has never committed a moving violation. Studies prove it.

  9. English Outsider says:

    Well, I suppose General Flynn is in a better position than he was a while ago. Not long back he was having to protect his family from harassment. Now he’s victim of a last ditch holding action that might drag the thing out until after the election.
    The photos don’t show him a broken man after all this. Cohen looked like he was falling to pieces afterwards. Flynn still seems composed and holding his own. But the legal fees must be staggering. Does he have to find them himself or is anyone helping him out?
    Presumably, were Trump to lose, he’ll be handing out a sheaf of pardons before he goes to protect his people from further harassment. That can’t be stopped, can it?

  10. turcopolier says:

    Ah … I was unaware of that.

  11. turcopolier says:

    “In the midst of the word he was trying to say,
    In the midst of his laughter and glee,
    He had softly and suddenly vanished away—
    For the Snark was a Boojum, you see.”

  12. Fred says:

    “the legal fees must be staggering.”
    Eric Holder’s employer, Covington and Burling, is going to be paying all of them in settlement of the suit Flynn will bring against them. Perkins Coie and the Brookings Institute will probably looking for loose change under the couch cushions before he’s done with them too.

  13. blue peacock says:

    “Trump erred by not doing what he was elected to do; and he failed doing his job in January 2017 out of real fear he would have been removed from office.”
    Recall all the “Lock her up” chanting during his rallies in the 2016 campaign. As soon as the election was over what did he do? Even when Devin Nunes in early 2017 came to him with a list of documents and communications around Spygate and implored him to declassify, what did he do?
    He cried a lot on Twitter. At the end of the day he got impeached anyway!
    What conclusions can one draw from his actions? Do they demonstrate a strong leader?

  14. Deap says:

    The biggest problem is judges as old as Sullivan rely almost entirely on younger, progressive lickspittle staff and politically eager legal research aides.
    Unlikely Sullivan is even mentally engaged in any of this; and this case is running extra-judicially as an anti-Trump hit piece by his underlings. Deep state partisan shenanigans occur within the court system too.

  15. Rick Merlotti says:

    The Borg is very afraid of a free Flynn. As they should be.

  16. Keith Harbaugh says:

    In the past some have questioned why Flynn agreed to be interviewed by the FBI agents without a lawyer present,
    claiming that indicated naivete or even stupidity on Flynn’s part.
    It turns out Flynn had a previous quite successful relation with the FBI, while he was in Iraq:
    Perhaps this had some effect on how he viewed the FBI.

  17. Keith Harbaugh says:

    BTW, on that “Cheney vs…” citation, see
    Perhaps Robert Willmann can explain its significance here.

  18. Mark Logan says:

    Trump could end this by pardoning Flynn. Why doesn’t he?

  19. Chuck Light says:

    If you don’t mind a comment from the other side, I would say that the only basis for not granting Judge Sullivan’s petition would have been the argument that he lacked standing to make the request in the first place. Apparently the full Court felt it could massage that issue away, at least until arguments on 08/11.
    That said, it would appear that unless the full court places this matter on the fast track, and if recent history is a reliable guide, no decision will issue from the full Court until after the election. The full Court heard oral arguments in the McGahn/Mnuchin matter on April 28, and now, three months later, no decision has issued in those cases. Three months from August 11 is o/a November 9 or 10, and the election will be over. If the full Court does what should be expected, and sends the matter back to Judge Sullivan, the president may be placed in the position of having to pardon Flynn on his way out the front door (if he is defeated, of course).
    The “adequate remedy” that the full Court may want to discuss is the remedy of appeal after Judge Sullivan rules. Flynn foreclosed that remedy by seeking Mandamus before Judge Sullivan had the opportunity to rule. If things had taken their normal course (appeal after final judgement), and Judge Sullivan had ruled in favor of the DoJ, no additional steps would have been required, and the matter would have been ended just as Flynn wanted. On the other hand, if Judge Sullivan ruled against the DoJ Motion, Flynn would have had the normal “adequate remedy” of appeal after judgment. He would have been in the same position he is in now, without the legal fees involved in this wrangling over Mandamus.
    It could be argued that Flynn brought all of this tsuris on himself, and should have let Judge Sullivan rule. Maybe his current lawyer should pick up the tab for his Mandamus escapade.
    BTW, IMHO I think it it highly unlikely the Supreme Court will ever hear this case. Flynn will have his pardon, and all my friends in here will have their conspiracy theories, and this matter will all be rendered moot by January 20, one way or the other.

  20. Keith Harbaugh says:

    Just want to mention that the oral argument on Tuesday, 2020-08-11 at 9:30 AM EDT will be livestreamed by the Court here:

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