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".
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" .
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 . 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 .
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 .
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 . 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.
 Title 28, United States Code, section 455. Disqualification of justice, judge, or magistrate judge.
 Federal Rule of Appellate Procedure 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs.
 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.
 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.
 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).