Judge Sullivan asks for a rehearing in the mandamus action, but that allows Michael Flynn to get more exculpatory material

Michael_flynn_web

By Robert Willmann

When filing his request for a rehearing in the Michael Flynn mandamus action in the court of appeals, Judge Emmet Sullivan fully exposed his personal obsession against Gen. Flynn, which may have been encouraged and helped along by others.  But this act might come back to bite him and his enablers, because it keeps the whole case active and has allowed the Department of Justice (DOJ) to give more exculpatory material to Flynn, and his lawyers have promptly filed it with the clerk of the trial court. 

After Sullivan's filing on 9 July, the Court of Appeals for the District of Columbia Circuit issued an order directing Flynn to file a response within 10 days, and the DOJ may in its discretion do so also.  The court helpfully said that "the effectiveness of this court’s order issued June 24, 2020, will be stayed pending disposition of the petition for rehearing en banc"–

https://turcopolier.typepad.com/files/michaelflynn_court_of_appeals_orders_response.pdf

Flynn then filed a Second Supplement in Support of Agreed Dismissal, and described the material from the DOJ that was disclosed to him on 7 July–

https://turcopolier.typepad.com/files/michaelflynn_2nd_supp_supporting_dismissal.pdf

When the DOJ gives discovery material to Flynn, it files a notice that it has done so with the trial court clerk, and includes the cover letter to Flynn that accompanied the material.  The letter for this disclosure says, in part [1]–

"The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. The documents include handwritten notes of former Deputy Assistant Attorney General Tashina Gauhar from a January 25, 2017 meeting (23487-80), notes of former Deputy Assistant Director Peter Strzok from that same meeting (23491-92), an internal DOJ document dated January 30, 2017 (23493-97), and handwritten notes of then Acting Attorney General Dana Boente, dated March 30, 2017 (23498-500)".

The material is in an exhibit to Flynn's second supplement supporting dismissal, with some large areas blacked out and redacted–

https://turcopolier.typepad.com/files/michaelflynn_exhibit_2nd_supp_supporting_dismissal.pdf

Judge Sullivan's motion in the court of appeals asks for a rehearing "en banc", which would be a reconsideration of the mandamus by all of the judges on the court who are in "regular active service" and not disqualified to hear the case.

There are 17 judges on the D.C. Circuit, but 6 of them have "senior status" [2].  Those six still have their office but to receive a regular salary they have to meet certain requirements, usually including that they have to do at least one-fourth of the work that an active judge does [3].  However, only active judges who are not disqualified by recusal or otherwise may vote on whether to have a rehearing en banc [4].   Thus, 11 judges may vote, or the number left after any who are disqualified.  If none are disqualified, then six votes will be required to have a rehearing en banc.

The Handbook of Practice and Internal Procedures for the court says that if one judge asks for a response to the petition for rehearing, an order for a response will be issued, which was done in this instance.  The internal procedures further state [5]–

"If a judge calls for a vote on the petition for rehearing en banc, the Clerk’s Office transmits electronically to the full Court a new vote sheet, along with any response to the petition ordered by the Court. The question now is whether there should be a rehearing en banc. On this question only active judges of the Court may vote, and a majority of all active judges who are not recused must approve rehearing en banc in order for it to be granted".

Judge Sullivan's request for a rehearing en banc included a copy of the court's opinion of 24 June in Flynn's favor, and a certificate of parties, rulings, and related cases.  Those items in the 69-page document are excluded from the main paper here, which is 26 pages–

https://turcopolier.typepad.com/files/michaelflynn_sullivan_-motion_rehear_enbanc.pdf

Counting noses on how a vote might go regarding whether to have a rehearing en banc is anyone's guess.  Two judges of the three judge panel in Flynn's case would vote against a rehearing.  The panel in the U.S. v. Fokker Services opinion and decision from 2016 that supported Flynn's position consisted of Judges Srinivasan, Silverman, and Sentelle.  But unfortunately, Silverman and Sentelle have senior status and cannot participate because they are not regular active judges.  This means that Flynn should have three votes against a rehearing going in, when otherwise he would probably have five.  Judge Wilkins, who dissented in Flynn's case, would vote for a rehearing.  If all 11 active judges are eligible to vote, Flynn would need three more votes to block a rehearing, while Sullivan would need five more votes to have a rehearing.

Judge Merrick Garland, who is on the D.C. Circuit, will have a psychological tendency to vote for a rehearing.  He and Beth Wilkerson, the lawyer representing Sullivan in the mandamus action, were government prosecutors involved in the 1997 trial of Timothy McVeigh in the Oklahoma City bombing case.  Garland was nominated by president Barack Obama in 2016 to be on the U.S. Supreme Court and take the place of Judge Antonin Scalia, who passed away in 2016.  Fortunately, the Senate Judiciary Committee did not give Garland a hearing, and so the nomination never came to a confirmation vote.  Neil Gorsuch was appointed by president Trump to that vacancy.

My guess is that Flynn has three votes against a rehearing right now and Sullivan has two votes for one.  Based on a profile of the judges, I think that the vote might be close, but Flynn has a pretty good chance of blocking a rehearing.  But if one or more of the 11 judges is recused, the arithmetic changes. 

The judges of the court of appeals, the president who nominated them, the day they got their commission to officially start, and their race and sex are as follows [6].

Srikanth Srinivasan:  Obama, 24 May 2013, India Male

Karen LeCraft Henderson:  Bush Sr., 5 July 1990, White Female

Judith W. Rogers:  Clinton, 11 March 1994, Black Female

David S. Tatel:  Clinton, 7 October 1994, White Male

Merrick B. Garland:  Clinton, 20 March 1997, White Male

Thomas B. Griffith:  Bush Jr., 29 June 2005, White Male

Patricia A. Millett:  Obama, 10 December 2013, White Female

Cornelia T. L. Pillard:  Obama, 17 December 2013, White Female

Robert L. Wilkins:  Obama, 15 January 2014, Black Male

Gregory G. Katsas:  Trump, 8 December 2017, White Male

Neomi Rao:  Trump, 18 March 2019, Asian Female

After responses by Gen. Flynn and the Department of Justice on behalf of the government are filed on or before 20 July, a decision on whether a rehearing will take place will likely be made quickly.

 

[1]  The "USAO EDMO" in the cover letter refers to the United States Attorney's Office for the Eastern District of Missouri.  The U.S. Attorney there, Jeffrey Jensen, was directed by Attorney General William Barr to review what happened in the Flynn case from the beginning.  This resulted in the required disclosure of exculpatory and mitigating information to Flynn which had not been turned over by the Robert Mueller group.  The review then led to the filing of the motion to dismiss the case.

[2]  Judges on the U.S. Court of Appeals for the District of Columbia Circuit.

https://turcopolier.typepad.com/files/michaelflynn_dc_circuit_court_appeals_judges.pdf

[3]  Title 28, U.S. Code, section 371.  Retirement on salary; retirement in senior status.

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section371&num=0&edition=prelim

https://www.law.cornell.edu/uscode/text/28/371

[4]  Federal Rule of Appellate Procedure 35.  En Banc Determination.

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28a-node6-titleVII-rule35&num=0&edition=prelim

https://www.law.cornell.edu/rules/frap/rule_35

[5]  Pages 58-60, pdf pages 66-68. Handbook of Practice and Internal Procedures, U.S. Court of Appeals for the D.C. Circuit.

https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-%20Handbook%202006%20Rev%202007/$FILE/Handbook20191201a.pdf

[6]  https://www.fjc.gov/history/judges

https://www.fjc.gov/history/judges/biographical-directory-article-iii-federal-judges-export

 

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9 Responses to Judge Sullivan asks for a rehearing in the mandamus action, but that allows Michael Flynn to get more exculpatory material

  1. Avatar JM Gavin says:

    I’m not a lawyer, but my understanding of the law and criminal procedure is that a trial judge is neither the prosecutor nor the defense. The judge is not a party to the case in any manner. As such, the trial judge doesn’t have the right to request the en banc hearing or any other rights associated with criminal proceedings.
    The trial judge is bound to obey the existing directive of the Appeals Court. The Appeals Court should now hold Judge Sullivan in contempt, and consider sanctions, to include civil confinement or impeachment.
    JMG

  2. Avatar turcopolier says:

    JM Gavin
    The Democratic House will not impeach.

  3. Avatar Horace says:

    The business with Sullivan is just another sign that the Democratic Party has been take over by anti-American anti-Western communists and their fellow travelers. Law and constraint of law by constitution are weapons to be wielded against their enemies when convenient and irrelevancies to be ignored when inconvenient.
    The “muh constitution! muh bowtie!” crowd are utterly ineffectual because no one is playing by their rules anymore. What rules are the neo-Dems playing by, and if we don’t start playing by their rules is there any hope?
    By fundamental nature I am a moderate and have been all my life, but I see no middle ground to bridge. They want a new order, not just in the US but in all of the Western countries, where if European people exist at all it will be as tax serf minorities paying for their continued dispossession and eventual national extinction.
    Why do they want this? European nations, working class included, rejected communism with guns in hand during the conflicts that followed World War 1. The communist failure using violence was followed by a long period where they reevaluated their strategy, eventually settling on Gramsci’s peaceful Long March (through the institutions). Communists correctly saw that destruction of European nations was a prerequisite to their desired world order.
    Money-first establishment Republicans destroyed our American institutional right-wing by the late 1960’s (NOT the left) because they assessed them as the more serious short term threat to the money-first financialist world-order they wanted to build after discarding Bretton-Woods. So we were left defenseless while the Long March plodded on leading us to the disaster we face today.

  4. Avatar JM Gavin says:

    COL Lang,
    I concur that impeach won’t happen. Regardless, Judge Sullivan lacks standing to make his request. If the Appeals Court entertains his request, this will set the precedent that a judge is a party to judicial proceedings. Most clear-headed judges might realize that this isn’t a good thing for them, as it would expose judges to a host of negative actions.
    Or I am wrong on all of this? Does Judge Sullivan (or any judge) have standing to make such a request?
    JMG

  5. Avatar English Outsider says:

    From this interview and many other statements there seems to be no doubt in Barr’s mind that “Russiagate” was fake –
    https://www.realclearpolitics.com/video/2020/06/09/ag_barr_very_troubled_by_durham_probe_familiar_names_tried_to_sabotage_trump_campaign.html
    But there seem to be indications that AG Barr considers all this won’t get cleared up until after the forthcoming elections.
    What are the chances of the Flynn case getting dragged out that long as well? If the next administration is Democrat would the DOJ change its current position?
    “the wheels of justice grind slow and they do run slow because we have due process and we follow the process.” says the Attorney General. Very proper, but has he considered the possibility that if there’s a change of administration those wheels will stop grinding entirely?

  6. Avatar Jack says:

    EO,
    IMO, Barr is trying to have the cake and eat it too.
    One one hand he’s saying the coup attempt is unprecedented and terrible for the rule of law. On the other hand he is implying that it is too hot a potato and he’s gonna punt to the next administration as “due process requires thoroughness”.
    Note the contrast with how fast Mueller moved and the “due process” in the Assange case.
    In the case of Flynn, a Biden DOJ could reverse course and partner with Judge Sullivan to incarcerate Flynn.

  7. Avatar Keith Harbaugh says:

    Sidney Powell has filed “Flynn’s Opposition to Rehearing En Banc”:
    https://www.sidneypowell.com/s/July-20-2020-Flynns-Opposition-to-Rehearing-En-Banc.pdf
    My view on what should happen is that
    the Circuit Court should preserve the right of a district judge to question government’s motions to dismiss in extreme cases,
    but that in this specific case the facts the govt laid out in ECF 198 are quite sufficient to support its motion to dismiss.
    How the Circuit Court could preserve that general flexibility while requiring that Judge Sullivan end his fishing expeditions and efforts to prolong this specific case is not clear to me.

  8. Avatar Keith Harbaugh says:

    On 2020-07-20 the DOJ filed a brief with the Circuit Court opposing an en banc hearing:
    https://mobile.twitter.com/Techno_Fog/status/1285326295912591372
    at scribd:
    https://t.co/DMEbnxbqCf
    Comparing the three briefs,
    IANAL, but the Sullivan/Wilkerson brief sounded impressive to me in its marshalling of legal precedents.
    Then I read the Flynn/Powell brief, which seemed to get the facts and priorities right,
    far better than the Sullivan/Wilkerson brief,
    but I wasn’t sure if it successfully addressed the legal precedents.
    Then happily along came the DOJ brief,
    which sure sounds like it successfully addresses the precedents
    Of course the Circuit Court’s opinion is what counts.
    Finally, Margot Cleveland has a recap and some ideas on what may happen next:
    https://thefederalist.com/2020/07/21/whats-in-the-legal-briefs-over-whether-judge-sullivan-can-keep-harassing-michael-flynn/

  9. Avatar Chuck Light says:

    I would ask whether the original three judge panel of the DC Circuit actually conferred the status of “party” for the purposes of FRAP Rules 35 and 40 on Judge Sullivan by directing him to file a response to Flynn’s Emergency Petition for Writ of Mandamus.
    Did the original panel make Judge Sullivan a party, for the purposes of FRAP Rule 35 by forcing him to respond in opposition to the original petition?

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