The court of appeals wants oral argument about disqualifying Judge Sullivan in the Flynn case

Michael_flynn_web

By Robert Willmann

In its first order allowing a rehearing en banc of the Michael Flynn mandamus action, the U.S. Court of Appeals for the D.C. Circuit specified an issue to be discussed at the oral argument, and added that a second order would follow with the amount of time each lawyer participating would have to argue.  The second order, filed on 5 August 2020, said that each lawyer can argue for 20 minutes in the rehearing en banc, which is a consideration of the mandamus by all of the active judges eligible to take part, and which starts it back at square one.  Granting the rehearing vacated the earlier decision by a three-judge panel in Flynn's favor.  However,  the second order contains a little surprise–

"Further ordered that, in addition to the issue set forth in the court's order filed July 30, 2020, the parties be prepared to address at oral argument the effect, if any, of 28 U.S.C. sections 455(a) and 455(b)(5)(i) on the District Court judge's Fed. R. App. P. 35(b) petition for en banc review".

https://turcopolier.typepad.com/files/michaelflynn_2nd_order_rehearing_en_banc.pdf

The court of appeals was being polite to trial court Judge Emmet Sullivan in its order because it left out the name of that particular section 455:  "Disqualification of justice, judge, or magistrate judge" [1].

The court of appeals worded the issue carefully by saying, "… the effect, if any, … on the District Court judge's … petition for en banc review".  It speaks to the effect of the disqualification statute on Sullivan's "petition for en banc review".  This raises the question:  Disqualified from doing what?  If Sullivan should be disqualified, would he be disqualified from asking for a rehearing en banc, which should restore the earlier decision in Flynn's favor?  Would he be disqualified from asking the U.S. Supreme Court if it will agree to hear the case if Flynn prevails in the court of appeals?  Would Sullivan be disqualified from continuing to preside over the Flynn criminal case in the trial court?  All or part of the above?

Another interesting thing about the issue is that it refers to two different grounds for disqualification, subsections '(a)' and '(b)(5)(i)'–

"(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned".

"(b) He shall also disqualify himself in the following circumstances: …

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

    (i) Is a party to the proceeding, or an officer, director, or trustee of a party;…."

The two different grounds can be that "his impartiality might reasonably be questioned", and "he is a party to the proceeding".

How and why this second issue showed up is, as usual, anybody's guess.  The internal operating procedures for this court of appeals say that a request for a rehearing en banc is to be distributed to the active members of the court, including the three-judge panel that originally decided the case.  Judge Sullivan's motion for rehearing included a copy of the opinion in Flynn's favor by a 2-1 vote.  Responses by Flynn and the Department of Justice (DOJ) to the motion for rehearing were filed.  A majority of the judges on the court eligible to participate in a rehearing en banc would vote on whether to have a rehearing.  In this case, there were 10 judges, since Judge Gregory Katsas recused himself (he was hired as a staff lawyer in the White House after Trump was sworn in, and was nominated to the court of appeals by Trump in 2017).  A majority vote of the 10 was required for a rehearing en banc to take place, and that happened, which produced the first order authorizing a rehearing and stating an issue to be discussed, and that a second order would set forth the time each lawyer would have to argue.

Then, each of the 10 judges and the law clerks for each judge would look at the materials filed in Flynn's mandamus action up to the time that the original decision was issued, in order to prepare for the upcoming oral argument. 

It seems to me that after reading the documents filed, or getting a memo about them from his or her law clerk, one or more of the judges saw that the situation in the trial court was distintegrating into a noxious, confrontational state of affairs involving Judge Sullivan, Flynn and his new lawyers, his former lawyers at Covington & Burling, the Department of Justice with its motion to dismiss the case, and Sullivan's insertion of John Gleeson, a former federal prosecutor and judge, into the matter to oppose the position of Flynn and the Justice Department in the trial court.  This realization may have played a part in producing the second issue to be discussed about whether Sullivan should be disqualified in some form or fashion.  In his mandamus petition, one item of relief requested by Flynn was that Sullivan be removed from presiding over the case and that it be transferred to another judge.  However, the three-judge panel denied that relief.

Commenters here have previously had relevant questions.   One is about the fact that Judge Sullivan looks like he has started acting as a party in the criminal case instead staying in his role as a judge.  Another one asks about the reason for citing a supreme court opinion in the issue stated in the first order that granted the rehearing on 30 July 2020.

The recent, second order presents the issue about disqualification if a judge is a party to the proceeding, and it pulls out into the open Sullivan's act of filing a motion for a rehearing en banc.  It also presents the question of how a petition or application for a writ of mandamus should be structured to begin with.  The petition for a mandamus in this case was a new, mini-lawsuit that started in the court of appeals.  It complains about acts of the trial court judge, but how do you set up the procedure to process this petition?  How do you name the parties to it?  Usually, one of the parties in the trial court files for the mandamus, but the other party in the trial court liked what the judge did, and will be the one opposing the mandamus in an appellate court.  So the parties to the case will be arguing against each other in the mandamus action, and the trial court judge is just in the background waiting to see what the ruling might be as to one party or the other.  But in Flynn's case, both parties in the trial court did not like what Sullivan was doing, and so the prosecution, through the Justice Department, is aligned with Flynn.  Sometimes, in this kind of a situation, the court of appeals will appoint a lawyer to be a friend of the court to argue the position of the trial court in the mandamus action, since none of the parties would want to do it.  Or, the court of appeals may invite or order the trial court judge to address the petition.

Federal Rule of Appellate Procedure 21 sets out the procedure that applies to "extraordinary writs", including mandamus [2].  Rule 21(b)(4) allows the trial court judge to "address the petition" if invited or ordered to do so–

(b)(4) "The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals".

Rule 21 says that Judge Sullivan can address the petition if invited or ordered to do so, and in this instance, he was ordered to do so [3].

Rule 21(b)(5) adds to the analysis, as it differentiates between the parties and the trial court judge–

(b)(5) "If briefing or oral argument is required, the clerk must advise the parties, and when appropriate, the trial-court judge or amicus curiae".

Thus, what might be happening is that some of the judges on the court of appeals are zeroing in on Rule 21(b)(4) which says Sullivan can "address the petition", but only if given permission to do so.  The rule does not authorize him to do anything else.  When Sullivan filed a motion for a rehearing en banc, he was acting like a "party" in the case, and thus might be disqualified for doing that particular thing.

The order of 30 July 2020 which said a rehearing en banc would occur included the statement 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. 367, 380 (2004)".  We have discussed this issue here on SST going back to when Flynn filed the mandamus action on 19 May 2020. The mandamus doctrine in federal court has three parts:  the petitioner must have no other adequate means to attain the relief he desires; the petitioner must show that his right to the writ is clear and indisputable; and the court in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.  For the oral argument, the court of appeals wants a discussion about whether Flynn has "no other adequate means to attain the relief he desires", and I think that the supreme court opinion in the Cheney case was cited in the first issue for discussion to make it clear that the focus is on that one element of the federal mandamus doctrine.  I do not think that the opinion was cited for its decision in that particular case since the citation pointed to page 380 of the opinion.  I have included three pages from the Cheney opinion beginning on that page [4].

From a perspective opposing the mandamus, since Judge Sullivan has not yet ruled on the DOJ's motion to dismiss the criminal case, if he grants the dismissal, Flynn will get the relief he desires.  If Sullivan denies the motion to dismiss, and proceeds to sentence Flynn, probably to prison, Flynn can then do a regular direct appeal of his conviction and sentence to a court of appeals because the trial court proceeding would have ended.  Flynn can seek relief and dismissal by that route, and a mandamus order from the court of appeals telling Sullivan to dismiss the case would not be necessary.

From the point of view in favor of a mandamus, based on the information developed in the trial court, Flynn is entitled to a mandamus order that the government's motion to dismiss is to be granted, under the reasoning in a 2016 opinion from the same court of appeals, with the title, United States vs. Fokker Services, BV.  In that case, the trial court denied a request to exclude time from the Speedy Trial Act — which sets the time frame within which a criminal case must go to trial — as part of a deferred prosecution agreement.  In its discussion, the court of appeals remarked that even though "leave of court" is required under the rules of criminal procedure before a government's motion to dismiss can be granted, the trial court's discretion to deny the dismissal is quite limited [5].  The executive branch is to be given a lot of leeway to decide whether to file criminal charges, against whom to file them, what offenses will be charged, and whether some or all of the charges should be dismissed after they are filed.  Furthermore, if Flynn has to wait to be sentenced to prison before he can seek to have the case dismissed when the facts and law say it should be dismissed, he has no other "adequate means" than mandamus to get the relief he desires.  

One guess is almost as good as another about what is going on behind the curtain at the court of appeals, and what the ruling will be in the mandamus action, since it is starting all over before 10 judges instead of three.  If the final vote is tied at 5-5, the court's internal operating procedures say:  "the Court will enter a judgment affirming the order or judgment under review [the original one in favor of Flynn], and it may publish the en banc Court's divided views".  Otherwise, the key is six votes. 

The oral argument is set for Tuesday, 11 August 2020, at 9:30 a.m. before the federal Court of Appeals for the District of Columbia Circuit, sitting en banc. 

 

[1]  Title 28, United States Code, section 455.  Disqualification of justice, judge, or magistrate judge.

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section455&num=0&edition=prelim

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

[2]  Federal Rule of Appellate Procedure 21.  Writs of Mandamus and Prohibition, and Other Extraordinary Writs. 

https://uscode.house.gov/view.xhtml?path=/prelim@title28/title28a/node6/titleV&edition=prelim

https://www.law.cornell.edu/rules/frap/rule_21

[3]  Order of the court of appeals on 21 May 2020 about filing responses in the mandamus action after it was first filed,  and it directed Judge Sullivan to do a response.

https://turcopolier.typepad.com/files/michaelflynn_mandamus_order_for_response-2.pdf

[4]  An excerpt of three pages from the U.S. Supreme Court opinion, entitled Cheney, Vice President of the United States, et. al. v. United States District Court for the District of Columbia, et. al., 542 U.S. 367 (2004).  Pages 380-382.

https://turcopolier.typepad.com/files/cheney_vs_us_district_court_opinion_3_pages_542_us_367.pdf

[5]  An excerpt of four pages, starting with subpart 'II-B', from the opinion of the U.S. Court of Appeals for the D.C. Circuit in the case entitled, United States v. Fokker Services, B.V., 818 F.3d 733 (D.C. Cir. 2016).

https://turcopolier.typepad.com/files/us_vs_fokker_services_opinion_4_pages_818_f3d_733.pdf

 

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23 Responses to The court of appeals wants oral argument about disqualifying Judge Sullivan in the Flynn case

  1. Avatar walrus says:

    Robert,
    Thank you once again for your cogent description of what is being done to Gen. Flynn. Watching the behaviour of the Court feels like watching the dissection of a living animal without anaesthetic.

  2. Avatar akaPatience says:

    Thank you so much for this thorough and easy-to-understand explanation Mr. Willmann – I truly appreciate it.

  3. Avatar Chuck Light says:

    It seems natural to me that the En Banc panel would raise the issue of impartiality, as Flynn has raised it since he changed his legal representation, and specifically raised it as an issue in his Petition for Mandamus.
    28 USC 455(b)(5)(i) raises IMHO a more interesting question, and one that I raised earlier. Did the original appellate panel make Judge Sullivan a “party” to the Petition for Mandamus by demanding that he officially respond to Flynn’s Petition? If it did, did that “status” confered by FRAP Rule 21 authorize Judge Sullivan to petition for rehearing en banc pursuant to FRAP Rule 35. If he does not become a “party” to the Mandamus Petition pursuant to FRAP Rule 21, was he ever authorized to seek en banc review?
    And if Judge Sullivan became a “party” pursuant to FRAP Rule 21, does 28 USC 455(b)(5)(i), require him to disqualify himself from further participation in the underlying criminal action? In other words, did the original appellate panel, by its order to Judge Sullivan that he respond to the Petition for Mandamus pursuant to FRAP Rule 21, put Judge Sullivan in the position of having to recuse himself because of his compelled status as a “party” to the mandamus proceeding.

  4. Avatar Keith Harbaugh says:

    Thank you for this clear and detailed account of the issues.
    The oral argument can be heard at
    https://www.youtube.com/channel/UCa63PLarrn0AmtHw-ooYtuw
    If there is a problem with that, try this:
    https://www.cadc.uscourts.gov/internet/home.nsf/Content/Announcement+-+Listening+to+Oral+Argument+-+In+re+Michael+Flynn+-+June+12+2020

  5. Avatar Graham in Madison, WI says:

    Four years ago I had considerable faith and trust in the federal judiciary and the ability of federal judges to set aside personal politics and act according to the law. Same with the FBI for whom I had a great deal of respect.
    Now I have zero faith and trust in the courts and view them as Deep State show trials. And the FBI I view as the new Cheka.
    I didn’t go from having unquestioning faith and trust in these hallowed institutions to completely losing faith and trust in them. I went from revering them to considering them evil and my enemy.
    I don’t think I’m not alone in feeling this way though I don’t think it even matters at this point. It’s a completely rigged globalist puppet show. We can’t go back to our comfortable naïveté and must remember to not be the first person to stop clapping.

  6. Avatar strateshooter says:

    the lesson of Michael Flynn is very sadly this..
    do not ever talk to the FBI without a lawyer present.
    They are a political hit gang for those in power nota law enforcement agency.
    Seriously folks , DO NOT talk to the FBI EVER without a lawyer present.
    Also…MAKE DAMN SURE THE INTERVIEW IS TAPED.

  7. Avatar J says:

    Ah yes, the American Coup D’Etat, that Judge Sullivan seems to be a part of. They tried to get rid of POTUS Trump, and they tried to bury General Flynn.
    Let’s see who these American Coup D’Etat personnas are so far:
    Barak Obama
    Loretta Lynch
    James Comey
    Hillary Clinton
    John Podesta
    Huma Abedin
    Susan Rice
    Aaron Zebly
    Valerie Jarrett
    Ben Rhodes
    Sally Yates
    John Brennan
    James Clapper
    Debbie Wasserman Schultz
    Evelyn Farkas
    Susan Powers
    Andrew Weissmann
    Mary Jacoby
    Rod Rosenstein
    Robert Mueller
    Andrew McCabe
    Peter Strzok
    Lisa Page
    Nellie Ohr
    Bruce Ohr
    Jeannie Rhee
    James Baker
    Steven Schrage
    Judge Sullivan
    And the kicker, this Coup D’Etat began in 2015, as soon as the moment President Trump began his Presidential Campaign.
    I look forward to the Coup Plotters all being rounded up and criminally prosecuted.

  8. Avatar TV says:

    Over the years, I’ve been acquainted with a few police.
    They’ve all said the same thing:
    “Don’t talk to us without a lawyer.”
    EVERYTHING you say will be used against you.

  9. Avatar SRW says:

    Strateshooter:
    My comment is make damn sure you don’t lie to the FBI

  10. Avatar Chuck Light says:

    Other possible lessons of Michael Flynn. Do not plead guilty if you are not guilty. Do not lie to the FBI. Do not lie to an Article III Judge. Do not conceal financial dealings with foreign countries (Turkey) while at the same time serving as National Security Adviser. Do not promise to cooperate with a federal investigation if you do not mean it.
    I am sorry if I offend. I know I do not believe in the “Deep State,” and perhaps, as Graham says, I am naive in still believing in the institutions of government. But I don’t think so. I would ask Graham, with all due respect, if you believed in our institutions four years ago, what changed?

  11. Avatar blue peacock says:

    SRW
    Should the FBI & DOJ lie? What should happen when they do so?
    We have the case of that in the Russia Collusion hoax. Which brings up another question can the DOJ prosecute themselves?
    We’ll find out soon enough.

  12. Avatar Fred says:

    SRW,
    Should we ask for the transcript they already have of the conversation they are inquiring about to ensure verbatim compliance to their questions or just refer them to their tape library?

  13. Avatar Keith Harbaugh says:

    The scheduled one hour court session (20 minutes per side) ended up lasting three hours fifty minutes.
    https://youtu.be/97dE1_3e2Po
    Things seemed to go so badly for getting the writ of mandamus granted that Sidney Powell, in her closing two minute statement at the very end of the session,
    sounded like she was close to tears.
    Sad.
    She’s worked really hard on this, and she, like many of us, feel very badly about what has happened to General Flynn
    Whatever that is, justice it isn’t.

  14. Avatar Jim says:

    “Some circumstantial evidence is very strong, as when you find a trout in the milk.”
    Obviously, none of this should have occurred, and it did, and where will it end, and how will this persecution of Flynn end?
    The En Banc rules, for today: no more than an hour of arguments allotted, the docket said — but, today — was nearly four times that.
    This court — that did not go over by a few minutes but instead by a few hours. This signals a few things, most obvious being it became a spectacle, and the presiding judge today, despite his clean voice and solicitousness, ran amok and called it a hearing.
    Having listened to the entire drama, based on what was said by judges, it seem to me that: via Mandamus Writ; or otherwise/some other mechanism, — that. . . the Circus Act called Emmett Sullivan will be removed from the case, at minimum.
    In other words, Sullivan will become “disqualified” by some means: either on his own, soon, or by his peers.
    Unlike previous hearing of 3-judge appeal panel, today, the US Solicitor General, Jeff Wall, arguing for the Government/DOJ, for Mandamus Writ, was asked point blank by one of the ten En Banc Judges: should Sullivan be removed from case owing to bias as Writ alleges.
    Wall said yes, because the appearance of bias — owing to fact Sullivan requested the En Banc appeal hearing himself [instead of dismissing the case when the 3-judge appeal panel ordered him to do] — and, thus Sullivan de-facto became a party.
    Thus Sullivan is inherently vested in an outcome and unfit to continue. [Put another way: Sullivan went judge shopping.]
    Thus making Sullivan a de-facto Party to the fiasco he created.
    Sullivan’s lawyer today, Beth Wilkinson, the least impressive attorney at this hearing, in my view: all she could say to counter that was that DOJ did not file the Writ, to imply the DOJ lacks standing.
    Judge Henderson, [who with Judge Rao, voted 2-1 to issue the Writ previously,] told Wilkinson today that her request for En Banc used a section of court procedure that is specifically for a Party to a dispute.
    Wilkinson had to stand there and absorb the humiliation of being told by Henderson that Wilkinson’s egregious mistake notwithstanding: Sullivan “is not a party” to the Mandamus proceeding, as a matter of law. [ouchie]
    Henderson was telling Sullivan’s lawyer: you are an idiot.
    And telling her: you proved you are an idiot.
    At one point Henderson, in reference to this, said, quoting Thoreau: “Some circumstantial evidence is very strong, as when you find a trout in the milk.”
    Having grown up on a dairy farm, and having ridden in many a milk truck to collect the bulk milk of farmers in the region — I was humored by her using this quip.
    Although they are not supposed to, some farmers, at least as recently as the 1960s — I can attest — would add many gallons of water to the milk in their large bulk collection milk tank — and thus get paid not just for producing milk but the weight of the water they would add.
    While adding water would lower the butterfat content of the milk by diluting it, and thus lessen the per pound payment [based on total pounds and butterfat content expressed as a percentage], farmers would pull this Trick after the milk collector had taken a sample of the milk [to measure butterfat content]; and then the farmer would, then: throw in the water — on the sly — while the milk collector was putting the sample in the truck for safe keeping — when the milk collector wasn’t looking, as it were.
    In Thoreau’s time, 1850s, even though indoor plumbing was just beginning to be introduced in cities, in rural areas, this did not happen on farms until decades later.
    Thus water was obtained using a pump well and/or at nearby stream or pond.
    There may not have been direct evidence a sly farmer was cheating, but: “Some circumstantial evidence is very strong, as when you find a trout in the milk.”
    In other words: they and we all know Sullivan was cheating Flynn.
    And one of the judges, Henderson, told Sullivan’s lawyer –right to her face today — that Henderson knows that Sullivan knows that Henderson knows Sullivan was as guilty of cheating Flynn as a cheating farmer is when watering down the milk.
    In other words, Sullivan is corrupt, is what Henderson was saying.
    One way or another Sullivan will no longer hear anything else on the Flynn case, it would seem to me.
    -30-

  15. Avatar Chuck Light says:

    And then again, Jim, you could be wrong. I’m not saying you are, but you may be filtering what you hear through cotton stuffed in your ears.
    There were 10 judges today, Jim, and you refer to one. Could that be the one you liked the most?

  16. Avatar mcohen says:

    Really confusing.Is en banc a kind of white wine that goes with fish.

  17. Avatar Fred says:

    Keith,
    Sydney Powell sounded frustrated as the judges sounded like professional bureaucrats wanting a process to procede to a ruling that would then have an inevitable appeal that would then overturn whatever Sullivan ruled and too bad if it damages the appellant in the intervening years. Other than Sydney most of the judges sounded no smarter than you or I
    And many were making academic arguments on “hypothetcals” and sounded like members of Congress showboating for their constituents to keep their approval ratings up.

  18. Avatar blum says:

    There were 10 judges today, Jim, and you refer to one. Could that be the one you liked the most?
    Posted by: Chuck Light | 12 August 2020 at 02:00 AM
    Appreciated! Cakewalk expected?
    The En Banc rules, for today: no more than an hour of arguments allotted, the docket said — but, today — was nearly four times that.
    In spite of the fact that Robert wrote this above in his first paragraph. Meaning you didn’t even have to delve deeper into unfamiliar legal matters.
    The second order, filed on 5 August 2020, said that each lawyer can argue for 20 minutes in the rehearing en banc, which is a consideration of the mandamus by all of the active judges eligible to take part, and which starts it back at square one.
    Here is a partial I suppose biased transcript, considering the usage of “Flynn’s lawyer”.
    Judge Merrick Garland: I assume you agree even if the Supreme Court had decided an issue, you can’t mandamus a judge this way?
    Flynn’s lawyer: This is under Rule 48(a). He is intruding into the Article II power, which he can’t do. Around Docket 200 we requested again the dismissal.
    Judge Garlard: So the panel just got it wrong? Flynn’s lawyer: It was my fault for not pointing it out.
    Flynn’s lawyer: When the government walks in and says “I quit,” it’s over. They are the only ones who can prosecute. The court can’t continue on its own. But Judge Sullivan has done so for three months, effectively.

  19. Avatar Chuck Light says:

    What has always bothered me about this Mandamus petition is that Flynn’s counsel and the DoJ keep referring to the Motion to Dismiss as a “charging” decision. In doing so, they rely extensively on United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016).
    But language from Fokker leads me to the opposite conclusion:
    “The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences. The courts instead take the prosecution’s charging decisions largely as a given, and assume a more active role in administering adjudication of a defendant’s guilt and determining the appropriate sentence. Fokker Servs.,818 F.3d at 737 (emphasis added).”
    The DoJ Motion to Dismiss was filed after adjudication, and just prior to sentencing. Flynn was (rightly or wrongly) adjudicated guilty when he plead guilty in open court before Judge Sullivan. He then again admitted his guilt at his aborted sentencing hearing, when Judge Sullivan “suggested” that he continue to cooperate with the Mueller Investigation in order to improve his chances of no prison time. People can argue about whether Judge Sullivan overstepped his authority during that hearing, but there is no doubt that Flynn was adjudicated guilty by his own admission on more than one occasion. The only thing remaining for Judge Sullivan to do was to pronounce sentence.
    Then, when the final sentencing day was at hand, the DoJ ran in with a FRAP Rule 48(a) Motion to Dismiss, which caused all of this mishegoss. And everyone is claiming this is a “charging” decision and citing to Fokker, which says that adjudication of guilt and sentencing are uniquely judicial functions.
    I don’t understand how we got to calling this post-adjudication Motion a “charging” decision, given Fokker’s apparently clear language. Does anyone have an idea? Neither appellate panel seems to have addressed this.
    Chuck Light

  20. Avatar smoke says:

    @ Jim – Thank you for that colorful explanation of Judge Henderson’s saying, with which I was unfamiliar.
    I listened as far as the trout and a little further, then gave up. Too much repetitive legal trade talk for non-lawyers. Henderson was the only judge who sounded openly sympathetic to the legal abuse of Flynn. Garland sounded like he was poking around for a legal or process cause to reject mandamus.
    Meanwhile, for any non-lawyer who has followed the developing case against Flynn, surely the only conclusion is that he remains caught in an unjust trap that has abused the principles and powers of the justice system. No matter how the minutiae of legal process are turned and squeaked by how many justices.

  21. Avatar Jim says:

    The Irony of the En Banc yesterday is:
    1] most but not all of the ten judges kept shrieking about the potentiality of making it “easy” to obtain Mandamus Writ viz. when a judge goes off the reservation.
    2] the most used word yesterday was Fokker — a decision designed to keep judges from going off the reservation, a la Sullivan in the Flynn case — which decision many of yesterday’s judge’s seemed unable to grasp its pertinence to Flynn case.
    In other words, they shrieked about the routinization of Mandamus; while, simultaneously — many of them — expressing disdain for the Fokker decision — that prevents judges from being [or slyly trying to be de-facto] prosecutors, among other things, a la Sullivan.
    These above En Banc judges — they apparently hate Fokker as it limits them, and they hate anyone using Mandamus to reign them in — when they leave the reservation and go off into la la land, a la Sullivan.
    This bit of ignorance at their hypocrisy or just plain stupidity or perhaps their fragmented consciousnesses block their rational faculties, on this.
    And this was plain as day yesterday.
    Henderson understood this hypocrisy as did Judge Rao, the two that voted to grant Flynn Mandamus.
    I suspect the Chief Judge, presiding at Tuesday’s United States Court of Appeals for the District of Columbia Circuit Em Banc, Padmanabhan Srikanth “Sri” Srinivasan may have conceptualized this glaring hypocrisy as well.
    Yet no one brought this up.
    The closest we got to this elephant in the room, or if you prefer, fish in the milk pail, was Henderson.
    Powell did not bring this up; she should have in her two minute closing statement, since some of what she said at that point was cutting no ice with the ten, anyways.
    Wilkinson — this would be the last thing she would have wanted to bring up, as it cuts to the heart of why she and her client are charlatans.
    “Sri” Srinivasan wrote the Fokker decision.
    He know what it means. [In February Srinivasan replaced Merrick Garland as the DC appeals chief judge; Garland remains on the appeals bench, among the lower lights yesterday.]
    The dimmest bulb was one of the two women Obama appointed to this circuit, circa 2013.
    This one misrepresented Sullivan’s actions viz. Flynn at the atrocious December 2018 sentencing hearing of Flynn, when Sullivan accused Flynn of being a traitor and selling out his country and so on and so forth.
    But rather than rehashing this one’s ignorance on what actually happened at that sentencing hearing. . . the larger and key point is that this one . . . by what she said yesterday, demonstrated her own bias against Flynn.
    It is now a fact that the government [DOJ] had no case against Flynn, that is, no legal nor lawful predicate to investigate him, thus, the persecution of Flynn, not tethered to any law enforcement purpose or function. At all.
    Had this one read and understood the record before her, this one would not have made the outrageous statement yesterday, to the effect that —- if it wasn’t for Judge Sullivan that day, you would have been sentenced!. . .
    This glaring blunder of this one, broadcast live on CSPAN.
    This one’s actions yesterday, perfectly preposterous.
    This Circuit is as close as there is to a “farm team” for future US Supreme Court justices. Including those that have tried and failed to get there, i.e., Bork and Garland.
    https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit
    Henderson referred to Sullivan as an “old hand” — giving him deference and praise and saying he would do the right thing, during June 24 Mandamus hearing, when she and Rao told Sullivan to dismiss the case against Flynn. Wilkins objected in the 2-1 appeals court order.
    Instead of abiding by that court order, Sullivan went judge shopping.
    Any praise of him, either by Henderson or any of the other nine sitting En Banc, yesterday, gone with the wind.
    The fact is: we are at this point: prima facie evidence . . . system broken.
    Thus, any speculation of what might be or should be could be said, about what might happen: at best, crapshot.
    This is a rotten egg.
    How do you spoil a rotten egg?
    PS
    One of Sullivan’s former bosses, the ex-Chief Judge of the United States District Court for the District of Columbia, Richard Roberts, resigned abruptly in 2016.
    [[Federal Judge Retires As ‘Bad Lapse In Judgment’ With 16-Year-Old Surfaces]] the March 18, 2016 NPR headline says.
    https://www.npr.org/2016/03/18/470852225/federal-judge-retires-as-bad-lapse-in-judgment-with-16-year-old-surfaces
    As the story goes, this occurred decades earlier when he was a prosecutor, long before being the chief judge, etc.
    My favorite lines from story: [[Federal appeals court Judge Karen LeCraft Henderson signed a letter this week to certify Roberts was “permanently disabled from performing his duties as a United States District Judge in regular active service.”
    Judges who serve at least 10 years and then retire under the disability statute are eligible to receive full salaries for the rest of their lives. In several past cases, retirement by a judge also put a halt to possible misconduct probes the judiciary launches of its own members.]]
    and this: [[Henderson signed off as “acting chief judge” of the U.S. Court of Appeals for the D.C. Circuit because the chief, Merrick Garland, recused himself. A courthouse spokeswoman declined multiple requests from NPR to provide a reason for Garland’s recusal. On Wednesday, Garland was nominated by President Obama to fill an open seat on the U.S. Supreme Court.]]
    I am not saying the DC district court’s ex chief judge, who was 27 at the time, was a sexual predator; the then 16 year old, now in her 50s, however is. She pushed this to the end and got nowhere.
    https://www.deseret.com/utah/2020/6/12/21289570/utah-supreme-court-sex-abuse-law-federal-judge-richard-roberts-terry-mitchell-joseph-paul-franklin
    Perhaps Gleason might intervene at this late hour on her behalf, or Wilkinson — where is ME TOO?
    But, at the end of the day, it is for prosecutors and only prosecutors to bring charges and prosecute. And when a prosecutor ends a prosecution, no matter at what stage, the fat lady has sung. Absent prosecutor misconduct, a judge is a potted plant. At this point.
    [there is no doubt that Flynn was adjudicated guilty by his own admission on more than one occasion. The only thing remaining for Judge Sullivan to do was to pronounce sentence]
    Sullivan never got that far. And even if he had, it was not for him to decide whether to continue a prosecution. Sullivan does not agree that absent prosecutor misconduct he is a potted plant at this point. He was hoping Gleason and Wilkinson would sow him a garden. And thus Mandamus Writ.
    Courts “do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” This is from May 2020 Supreme Court decision written by Ginsburg.
    In short: “[C]ourts are essentially passive instruments of government,” she wrote.
    Getting back to Roberts; he was also famous for denying the public the opportunity to take a look-see at some potentially very embarrassing material about people in high places. A decision the supreme court upheld.
    The below snippet, from Wikipedia:
    [[Montgomery Blair Sibley, the last lawyer for the late Deborah Jeane Palfrey, sued Roberts for his prolonged failure to file his request to have a gag order lifted, that forced him to keep Palfrey’s customer list private. Palfrey was a prominent arranger of trysts with high class call girls, and her client list is believed to be packed with highly placed Washington insiders.]]
    https://en.wikipedia.org/wiki/Richard_W._Roberts
    They protect their own: Flynn, never a member of that CLUB?
    -30-

  22. Avatar Jocko dundee says:

    @Jim
    “These above En Banc judges — they apparently hate Fokker as it limits them, and they hate anyone using Mandamus to reign them in — when they leave the reservation and go off into la la land, a la Sullivan.”
    fwiw, three en banc judges, besides Henderson and Rao voted for Fokker, so maybe you should be more specific as to whom the “shriekers” were exactly.

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