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Flynn Walks.. DOJ drops case

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10 minutes ago, Longhorn_Fan68 said:

translation for us luddites?

Judge Sullivan’s lawyers make a very compelling argument. The grant of mandamus in this fashion is not only unprecedented, it’s completely bizarre. Essentially, Flynn’s attorneys asked the DC Court to rule on an issue that was not fully resolved. It’s the type of thing that on its face is wrong (assuming we’re following precedent).

I think the DC court will hear it again and deny mandamus. It’ll get sent back to the court for Judge Gleason to do his briefing. The guv may still get their motion to dismiss granted (Gleason finds no error) but they aren’t going to do it by mandamus.

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13 minutes ago, Texaspython said:

Judge Sullivan’s lawyers make a very compelling argument. The grant of mandamus in this fashion is not only unprecedented, it’s completely bizarre. Essentially, Flynn’s attorneys asked the DC Court to rule on an issue that was not fully resolved. It’s the type of thing that on its face is wrong (assuming we’re following precedent).

I think the DC court will hear it again and deny mandamus. It’ll get sent back to the court for Judge Gleason to do his briefing. The guv may still get their motion to dismiss granted (Gleason finds no error) but they aren’t going to do it by mandamus.

Minor quibble, I think Gleeson completed his assignment in that he wrote a scathing brief undermining the government's position and reasoning.

I suppose there's a response and reply in order, but maybe not.

But overall, that's what I meant about Sullivan getting to dig into it more, make some findings and make a ruling, either dismissing the case presumably reaming out the government, or denying the dismissal and setting it for sentencing, which would provoke another mandamus that could be granted on similar grounds to the one we've already seen, which jumps the gun in a major way by going straight to dismissal when the trial judge hasn't ruled either way.

I'm not even 100% sure Sullivan has standing to make this petition. While the entirety of a mandamus proceeding questions his order, and they asked for briefing from him, I don't think he's technically an appellee, or respondent.  I don't know for sure, though.

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39 minutes ago, Longhorn_Fan68 said:

translation for us luddites?

Sullivan filed a request for en banc (full bench) rehearing of the writ. 

One judge must affirm the request by calling for a vote, then there's a vote on whether to rehear the writ petition en banc.

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18 minutes ago, JBJ said:

Sullivan filed a request for en banc (full bench) rehearing of the writ. 

One judge must affirm the request by calling for a vote, then there's a vote on whether to rehear the writ petition en banc.

JBJ,

Much better explanation than mine.

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Posted (edited)
29 minutes ago, JBJ said:

Sullivan filed a request for en banc (full bench) rehearing of the writ. 

One judge must affirm the request by calling for a vote, then there's a vote on whether to rehear the writ petition en banc.

Good point on the procedure.

In a lot of ways it seems to be a slam dunk because the majority exceeded mandamus jurisdiction, there's a partisan majority going the other way, and the ease with which that majority can be invoked to vote in favor of hearing it again.

But, observers have noted, and I posted an article about it upthread, that the DC Circuit has been extraordinarily disinclined to grant rehearings.

Also, I don't think anyone explained that a "rehearing" is a do over of the appeal, with maybe even new briefing, likely argument in front of all 11 (I believe) judges, and a new opinion of those judges replacing the opinion of the three-judge panel.

Edited by TwiceHorn

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12 minutes ago, TwiceHorn said:

Good point on the procedure.

In a lot of ways it seems to be a slam dunk because the majority exceeded mandamus jurisdiction, there's a partisan majority going the other way, and the ease with which that majority can be invoked to vote in favor of hearing it again.

But, observers have noted, and I posted an article about it upthread, that the DC Circuit has been extraordinarily disinclined to grant rehearings.

Also, I don't think anyone explained that a "rehearing" is a do over of the appeal, with maybe even new briefing, likely argument in front of all 11 (I believe) judges, and a new opinion of those judges replacing the opinion of the three-judge panel.

That’s true but I have to think that opinion burned enough Judges asses on the DC court to warrant a rehearing. If nothing else but to keep the peace.

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21 minutes ago, David Dennison said:

 

Wow holy shit that is some welcome good news. Full DC circuit is 7(D) and 4(R) appointed judges, and it completely nullifies the previous (terrible imo) decision by Rao.

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That's big. Partisanship aside, I think that's an indication that a number of the judges think it's a fucked up decision. 

In the final analysis, though, I think it just prolongs things. Sullivan may get his hearing with his amicus, but will probably have to dismiss anyway. 

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8 minutes ago, TwiceHorn said:

That's big. Partisanship aside, I think that's an indication that a number of the judges think it's a fucked up decision. 

In the final analysis, though, I think it just prolongs things. Sullivan may get his hearing with his amicus, but will probably have to dismiss anyway. 

That's completely fine.  Let justice as the judge sees be done whatever it may be.

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On 7/30/2020 at 12:33 PM, TwiceHorn said:

That's big. Partisanship aside, I think that's an indication that a number of the judges think it's a fucked up decision. 

In the final analysis, though, I think it just prolongs things. Sullivan may get his hearing with his amicus, but will probably have to dismiss anyway. 

This, sort of.  Let's say the en banc vote is strictly down party lines, proving a court can be just as political as any other politician or institution.   Then Sullivan makes the case last long enough that the case is still going as the debates near.  Trump will not want to pardon Flynn before the election.   Flynn's attorneys appeal to the supreme court and the court rules for Flynn, just before the election.  The supreme court hears arguments October 5,6,7,13, and 14.  That's it before the election, unless you count the day before the election.  Sullivan's objective is to make the case last in his court until October 14.  I don't think he can do that.   Maybe he gets sick and has to go on FMLA or something like that.  So, my fearless forecast is that the supreme court hears the arguments October 7, 13, or 14, and hands down the ruling sometime before the end of October.  Game over.  

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On 8/1/2020 at 12:57 AM, orangecat92 said:

This, sort of.  Let's say the en banc vote is strictly down party lines, proving a court can be just as political as any other politician or institution.   Then Sullivan makes the case last long enough that the case is still going as the debates near.  Trump will not want to pardon Flynn before the election.   Flynn's attorneys appeal to the supreme court and the court rules for Flynn, just before the election.  The supreme court hears arguments October 5,6,7,13, and 14.  That's it before the election, unless you count the day before the election.  Sullivan's objective is to make the case last in his court until October 14.  I don't think he can do that.   Maybe he gets sick and has to go on FMLA or something like that.  So, my fearless forecast is that the supreme court hears the arguments October 7, 13, or 14, and hands down the ruling sometime before the end of October.  Game over.  

Well, I think the most likely outcome is that the DC Circuit reverses the decision ordering him to dismiss the case, but strongly suggests that that is the only permissible outcome.  It also approves or disapproves of the whole amicus procedure.  I am uncertain of the outcome there.

That then gives the parties a period of time to petition for cert, which can take 90 days plus, plus, plus depending on how quickly the parties act (DOJ presumably would want to go fast, fast).  I suspect that it would be denied, as mandamus is a lousy thing to take to the Supreme Court, being fact bound and interlocutory.  Or maybe to speed things up, they skip cert entirely on the mandamus and wait for a final judgment.

In any event, I think it probably permits Sullivan to hold a hearing on the motion to dismiss to "flesh things out further."  He can sit on a decision for quite a while after any hearing.

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On 8/2/2020 at 3:30 PM, orangecat92 said:

Do you think Sullivan can make the case last through October 14? 

 

 

Hmmm.  Maybe?  

I might guess that the mandate from the DC Circuit doesn't hit the district court until September, so yeah.  He might even hold off for the parties to seek cert, although I he doesn't need to.

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