D.C. Circuit authorizes Judge Sullivan to hold hearing in Flynn case

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Power Line

Paul Mirengoff

August 31, 2020

The U.S. Court of Appeals for the D.C. Circuit, sitting en banc, has overturned a ruling by a panel that had granted Michael Flynn’s petition for mandamus against Judge Emmet Sullivan. The panel’s decision, by a 2-1 vote, had pulled the plug on Judge Sullivan’s attempt to hold a thorough hearing in the Flynn case, notwithstanding the Justice Department’s motion to dismiss. But by a vote of 8-2, the full Court says Sullivan can proceed.

I think this is the correct result. The mandamus petition was premature because Sullivan hasn’t ruled one way or the other on the government’s motion to dismiss the Flynn case. All he has done is called for briefing, including by an amicus he appointed, and a hearing to help him determine how he should rule on the motion.

Sullivan shouldn’t have done this. He should simply have granted the DOJ’s motion. But this is not the kind of error that, under the law, is properly fixed by the extraordinary remedy of a mandamus petition. Mandamus petitions are used in extraordinary cases to fix erroneous decisions without waiting for an appeal. They have not been used to tell a judge how to rule on a matter he’s considering.

The key passage from the majority’s decision is this:

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DU

TOS

[Valin]

Sept. 1 2020

The latest chapter in the Michael Flynn judicial saga. The Court of Appeal en banc dismissed Michael Flynn's mandamus, did not vacate the amicus, and did not reassign the case to a different judge. Here is the breakdown.

#FlynnJustice #FlynnUpdate #PoliticsRuinsEverything

[Valin]

Oct. 1 2020

The latest in the Michael Flynn judicial saga. I suffered through the 5-hour hearing so you don't have to 😝 Here is the rundown. Peace!

[Valin]

Judge Sullivan protracts Flynn’s ordeal

Scott Johnson

Oct. 5 2020

As I heard the D.C. Circuit Court of Appeals judges who denied General Flynn’s petition for a writ of mandamus — opinion here — they expected Judge Sullivan to dismiss the case against Flynn on the government’s motion without further ado when the case was returned to him. This past Tuesday Judge Sullivan held the hearing on the government’s dismissal motion and, on the contrary, it sounds like the case will be dismissed over Judge Sullivan’s dead body. The Washington Post has a long account of the hearing here as does Politico here.

Politico quotes Judge Sullivan: “The sentencing has already commenced in this case.” Reporters Josh Gerstein and Kyle Cheney comment: “The import of the judge’s view of sentencing as being in progress wasn’t entirely clear.”

St. Louis attorney John Reeves clarified the import in a series of 19 tweets that commences with the first below. Click on the time stamp in the tweet to access the rest of the series. I agree with Reeves that the ordeal of General Flynn is to be continued by Judge Sullivan until it is shut down by a higher authority. Although the D.C. Circuit anticipated that Judge Sullivan would follow the law in due course, he seems to have lost the thread somewhere along the line.

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[Valin]

Oct. 27 2020