Recommended by Ricochet Members Created with Sketch. Twists and Turns in Flynn

 

Like most appellate lawyers in this country, I have been following the Flynn saga in the DC Circuit. I was disheartened at them granting the order for en banc review. I believed the mandamus was proper and should have issued.

For those of you who are not law nerds, an order in mandamus is an order from a superior court to a lower court telling that court to do something it has an absolute duty to do. You cannot establish a duty through mandamus, you can only enforce a duty. So, unless there was a clear, existing right to the relief sought (dismissal) mandamus would have been inappropriate. The original writ court found that there was such a right. The en banc review cast a shadow on that determination.

St. Louis lawyer John M. Reeves published a tweet this morning regarding an order from the court. He linked to the order by the D.C. Circuit. That order requested argument on 28 USC § 455 which establishes the reasons why a court must recuse.

The first thing they want to hear from the lawyers is whether 455(a) applies. That section states:

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

I think it’s reasonable to question Judge Sullivan’s impartiality given the lengths to which he has seen fit to carry his jihad against General Flynn. He may not be biased; I cannot say. But the evidence of bias has piled up fairly high and needs to be evaluated. But far more interesting is the Court’s request for the parties to argue § 455(b)(5)(i) which states recusal is necessary if:

(5)He …:

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

Recall that when Sullivan moved to get en banc review, both the United States and General Flynn pointed out that with respect to mandamus he was not a party in that he did not have any injury and couldn’t have any injury because he was not a party to the proceeding.

Under rules of standing a litigant who brings a matter forward for a court to decide must have standing to have that issue resolved. The issue that Sullivan sought to resolve was whether the mandamus was correctly issued. The Supreme Court has defined the standing inquiry under Article III of the Constitution as:

To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or immi- nent, not conjectural or hypothetical.” Lujan, 504 U. S., at 560 (internal quotation marks omitted). We discuss the particularization and concreteness requirements below.

Spokeo v. Robins, 136 S.Ct. 1540 (2016). In describing the nature of this invasion of an interest the Court said:

For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.” Ibid., n. 1; see also, e.g., Cuno, supra, at 342 (“ ‘plaintiff must allege personal injury’ ”); Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) (“ ‘distinct’ ”); Allen v. Wright, 468 U. S. 737, 751 (1984) (“personal”); Valley Forge, supra, at 472 (stand- ing requires that the plaintiff “ ‘personally has suffered some actual or threatened injury’”); United States v. Richardson, 418 U. S. 166, 177 (1974) (not “undifferenti- ated”); Public Citizen, Inc. v. National Hwy. Traffic Safety Admin., 489 F. 3d 1279, 1292–1293 (CADC 2007) (collect ing cases). Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be “concrete.”

***

A “concrete” injury must be “de facto”; that is, it must actually exist. See Black’s Law Dictionary 479 (9th ed. 2009). When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term— “real,” and not “abstract.” Webster’s Third New Interna- tional Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967).

Id.

As the judge, whatever interest Sullivan may have in being right, he has no particularized or concrete injury as a result of the mandamus. The only thing it affects is his reputation. So when he petitions the Court for en banc review, he asserts the rights of a party, and when the Court grants that petition for review, it elevates him to the status of a party. However, if the Court were actually to follow the Supreme Court’s mandatory directives on standing, Sullivan had no standing to petition for view, and the Court could not confer standing to him as a way of engaging in review.

Thus, the DC Circuit is attempting to put Sullivan in a box. Either he’s a party, and he has to recuse because of the statute, or he’s not a party, in which case he has no standing to demand en banc review. Interestingly, the order granting en banc review is below:

It begins this way:

Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges …

In other words, the Court did not take up the case sua sponte, or on its own motion. It took it up and voted to rehear it only because of the petition. It seems pretty clear that this is clear error on the Court’s part if the judge is not a party with standing. A party without standing is not permitted to move a Court to act on a motion that produces no legal benefit for that party. Because Sullivan has no concrete and particularized injury, it seems clear that the Court’s review of the petition is error. The government explained this best in their brief:

Article III standing. A person has Article III standing to seek appellate review only if he has a “personal stake” in the litigation. Hollingsworth v. Perry, 570 U.S. 693, 707 (2013). But a judge does not have—and under the Due Process Clause, cannot have—such a stake. That is so even for a writ of mandamus, which “is not actually directed to a judge in any more personal way than is an order reversing a court’s judgment.” Fed. R. App. P. 21 advisory committee’s note to 1996 amendments (1996 Note).

But likely it was the government pointing out the fact that Sullivan was not a party that prompted the most recent order. In its brief the Solicitor General said:

Party status. Only a “party” may petition for rehearing en banc. Fed. R. App. P. 35(b). Judges were once considered nominal respondents in mandamus proceedings, but in 1996, “the rule [was] amended so that the judge is not treated as a respondent.” 1996 Note; see Fed. R. App. P. 21(a) (listing parties). The district judge thus is not a party—not even a nominal one.

Thus Judge Sullivan and his highly-paid counsel are in a box. If the Court admits that he is a party (creating legal error that the DOJ will be duty-bound to appeal) then it has to recuse from further work on the case. And if it reconsiders, in view of the arguments, that it’s granting of the petition for review was error, it can simply reinstate the original order in mandamus, make it immediately effective, and the deal is done.

In some ways it would be better if the Court determined that Sullivan was a party because he would have to recuse and any subsequent judge would be bound (based on the procedural history) to grant the motion to dismiss. On the other hand, if it determines that he was not a party, could not petition, but now suggests that the vote to rehear the case was on some basis other than the petition, it looks dishonest, and as if it is doing the political bidding of the Democratic party. It truly seems that this is a heads-I-win-tails-you-lose situation for Judge Sullivan.

Yet, given the twists and turns in this case, no one should expect that we’ll know anything by the close of oral argument on August 11.

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There are 13 comments.

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  1. Maguffin Member

    I understood about half of this, but still came away understanding more than I did coming in, so thank you!

    • #1
    • August 5, 2020, at 12:21 PM PDT
    • 12 likes
  2. DonG (skeptic) Coolidge

    There are two cases here, right? One to force dismissal from Sullivan and the original against Flynn. Can Sullivan be a party in the first, but not the second? Is there really a conflict of interest?

    • #2
    • August 5, 2020, at 12:30 PM PDT
    • 3 likes
  3. PHCheese Member

    Democrat Judges will always obey the rule of law. Yea right.

    • #3
    • August 5, 2020, at 1:19 PM PDT
    • 4 likes
  4. Limestone Cowboy Coolidge
    Limestone CowboyJoined in the first year of Ricochet Ricochet Charter Member

    Anthony, thank you for an informed and lucid analysis. Between your post and the Viva Frei YouTube channel I’m starting to understand the subtleties of the Flynn case. Or so I hope.

    And President Trump: Please nominate Sidney Powell for the next Federal Court vacancy.

    • #4
    • August 5, 2020, at 2:00 PM PDT
    • 9 likes
    • This comment has been edited.
  5. Stad Thatcher

    Judge Sullivan is a disgrace to the judicial branch. Then again, a lot of them are. Even if Trump can pardon Flynn, I think he wants the system to find Flynn exonerated because the stench of a Presidential pardon would last for the rest of Flynn’s life as the MSM says, “Flynn had to be pardoned because he was guilty as sin, and Trump didn’t want him to spill any secrets.”

    On the good side, I look forward to Flynn’s book about his ordeal. Conservatives and liberals alike should read it and understand what it truly means when the system is out to get you . . .

    • #5
    • August 5, 2020, at 2:24 PM PDT
    • 10 likes
  6. Boss Mongo Member

    Silly rabbit. You think our judicial system has anything to do with the law?

    • #6
    • August 5, 2020, at 3:08 PM PDT
    • 7 likes
  7. Anthony L. DeWitt Coolidge
    Anthony L. DeWitt

    DonG (skeptic) (View Comment):

    There are two cases here, right? One to force dismissal from Sullivan and the original against Flynn. Can Sullivan be a party in the first, but not the second? Is there really a conflict of interest?

    There is only one case. It is the procedural posture that has changed from being lodged at the district court to being lodged at the district court of appeals. It’s the same case. Judges are neutrals. Their job is to act as referee. They decide legal questions; juries decide factual questions. A judge has to weigh the arguments fairly. If he has some kind of interest, however remote, he cannot fairly adjudicate a case. One of the reasons that in every federal appeal a company has to establish who owns it (e.g., is it a public company, privately held, and if so, who by) is to ensure that judges who might own stock in a company do not sit on that case.

    In the underlying criminal case the government moved to dismiss. In order for a case to be a case there has to be a controversy. When both parties are aligned on the same page, there isn’t one. The judge, unless there is credible evidence of fraud or bad faith (e.g., bribes) must grant a Rule 43 motion to dismiss. Not doing so, and getting an amicus involved, threatens the separation of powers between co-equal branches of government. When Flynn sought the writ he sought the writ to compel Sullivan to dismiss and barring that, to have him removed. That did not make Sullivan a party, it simply called his rulings into question. Sullivan can’t be a party because then he would be interested in the outcome, and he can’t be. I hope that clears it up.

    • #7
    • August 5, 2020, at 3:30 PM PDT
    • 8 likes
  8. Anthony L. DeWitt Coolidge
    Anthony L. DeWitt

    Limestone Cowboy (View Comment):

    Anthony, thank you for an informed and lucid analysis. Between your post and the Viva Frei YouTube channel I’m starting to understand the subtleties of the Flynn case. Or so I hope.

    And President Trump: Please nominate Sidney Powell for the next Federal Court vacancy.

    @limestonecowboy if Sidney Powell were representing anyone else in a case that had this posture, she’d be up for Lawyer of the Decade. But because that would give the imprimatur of respectability to Trump, she won’t be. She is indeed a superstar and should certainly replace Ginsburg when she finally decides to leave.

    • #8
    • August 5, 2020, at 3:32 PM PDT
    • 11 likes
  9. Bruce Caward Thatcher
    Bruce CawardJoined in the first year of Ricochet Ricochet Charter Member

    Limestone Cowboy (View Comment):
    And President Trump: Please nominate Sidney Powell for the next Federal Court vacancy.

    I heard RBG has been feeling poorly lately . . . .

    • #9
    • August 5, 2020, at 6:25 PM PDT
    • 1 like
  10. Bruce Caward Thatcher
    Bruce CawardJoined in the first year of Ricochet Ricochet Charter Member

    Boss Mongo (View Comment):

    Silly rabbit. You think our judicial system has anything to do with the law?

    Boss, if it doesn’t, all kidding aside, then maybe the BLM/Antifa crazies are right – we DO need a revolution. Just not the one they have in mind.

    Why should we keep being cynical and standing for this corruption of our consensual agreement to rule ourselves fairly and justly?

    I know I sound like a naive idiot, but aren’t we the good guys? Can’t we demand our representatives just be the god**m good guys? I know we just lost Wiford Brimely, but there must be others.

    • #10
    • August 5, 2020, at 6:32 PM PDT
    • 5 likes
    • This comment has been edited.
  11. Anthony L. DeWitt Coolidge
    Anthony L. DeWitt

    Bruce Caward (View Comment):

    Limestone Cowboy (View Comment):
    And President Trump: Please nominate Sidney Powell for the next Federal Court vacancy.

    I heard RBG has been feeling poorly lately . . . .

    @brucecaward I have heard that too. I don’t want to wish her ill. In her own way she is following her heart. She and Scalia were good friends, and I can’t think Scalia would befriend someone evil. But I do want her off the Court and I want Trump to get another pick. I also want to see Roberts role diminished by a strong conservative majority that has the guts to do the right thing in every situation. The most important feature of the next SCOTUS judge is an unbending will to enforce the Second Amendment.

    • #11
    • August 5, 2020, at 7:46 PM PDT
    • 7 likes
  12. Skyler Coolidge

    Judge Sullivan filed a motion to review the appeals court decision?

    The judge filed a motion to ask for an en banc hearing?

    THE FRICKING JUDGE FILED A MOTION TO DISPUTE DECISION OF THE APPEALS COURT?!?!?!

    He needs to get severely censured.

    Edit: In fact, he needs to be impeached, convicted, and heavily fined.

    • #12
    • August 5, 2020, at 8:49 PM PDT
    • 7 likes
    • This comment has been edited.
  13. ctlaw Coolidge

    Anthony L. DeWitt: Thus, the DC Circuit is attempting to put Sullivan in a box.

    I disagree. The three judge panel already put him in a box. My guess is that the Obama appointee-heavy enlarged panel was about to free him from the box. One judge is probably striking back and trying to put the enlarged panel in a box.

    This sets up a possible further review by the actual full circuit or the Supreme Court.

    Anthony L. DeWitt: I think it’s reasonable to question Judge Sullivan’s impartiality given the lengths to which he has seen fit to carry his jihad against General Flynn. He may not be biased; I cannot say. But the evidence of bias has piled up fairly high and needs to be evaluated.

    The one thing I have faulted Sidney Powell on is her failure to expressly challenge for bias. I think the “treason” rant may have preceded her.

    For me, the straw that broke the camel’s back was Sullivan’s legally erroneous rant accusing Powell of plagiarism. Perhaps Powell let that slide due to residual love for Sullivan over the Ted Stevens case. Or perhaps, she let that slide because addressing it could create a conflict between Powell and Flynn.

    The bizarre appointing of amicus only to investigate punishing Flynn for perjury was gratuitous abuse of an injured camel. After all, the only reason he would have perjured himself in an incriminatory way was that the prosecution suborned that perjury.

    • #13
    • August 6, 2020, at 4:05 AM PDT
    • 8 likes
    • This comment has been edited.