Looks like Judge Emmet Sullivan will get his hearing after all. An 8-2 en banc ruling today from the DC Circuit Court of Appeals reversed Judge Naomi Rao’s writ of mandamus ordering Sullivan to dismiss charges against Michael Flynn. Unless Flynn and the Department of Justice appeal the ruling to the Supreme Court, Sullivan will get to probe the DoJ’s decision to move for dismissal on a case they had already won:
A federal appeals court won’t order the dismissal of the Michael Flynn prosecution, ruling Monday that a judge is entitled to scrutinize the Justice Department’s request to dismiss its case against the former Trump administration national security adviser.
The decision keeps the case at least temporarily alive. In May, the Justice Department moved to dismiss the prosecution even though Flynn himself had pleaded guilty and admitted lying to the FBI during the Russia investigation. After a judge refused to immediately dismiss the case, his lawyers asked a federal appeals court to step in and force him to do so.
The opinion, hosted at CNN initially, basically concludes that Flynn and the DoJ attempted to short-circuit a legitimate process of inquiry into the DoJ’s dismissal motion. Mandamus cannot take the place of an appeal, the court wrote in its majority opinion, and in this case the appellants didn’t even wait to see if an appeal would be necessary:
This was one of the weaknesses pointed out in the original application for mandamus relief by Sullivan and other legal observers. The dissent from Robert Wilkins to Rao’s writ also pointed this out. However, Rao ruled that the damage to the independence of co-equal branches in Sullivan’s particular brand of hearing would be too extensive to ignore. The en banc ruling dismisses any notion of damage at all as speculative and premature:
Nor did the court’s judges decide that the case should be removed from Sullivan’s supervision. His challenges to the mandamus petition does not make him a party to the case, the court ruled, especially since the appellate panel invited his response:
That part of the ruling drew a sharp retort from Judge Karen LeCraft Henderson, who initially joined with Rao on the mandamus writ. Yes, they invited Sullivan’s participation in their review of the Flynn/DoJ mandamus petition, but they most certainly did not invite Sullivan to appeal their decision to the en banc panel. By definition, Henderson writes, that made Sullivan a party to the case, which means he should be disqualified from it:
And Henderson points out that this is a statutory issue as well as a court-rules problem:
Rao wrote a longer and more comprehensive dissent, essentially recapping her initial decision to issue the writ of mandamus. It’s worth reading in full, but there isn’t much new from her initial opinion on the writ.
So what happens from here? The DoJ and Sidney Powell could appeal the case to the Supreme Court, which probably would prefer not to get involved in this case at all. Andy McCarthy predicted two weeks ago that Flynn and the DoJ would lose on mandamus but otherwise prevail, and the Supreme Court justices might figure that it will happen more quickly without them than with their intervention. Given that neither Powell nor the DoJ actually sought to have Sullivan disqualified — a point brought up instead by the DC Circuit — the Supreme Court isn’t likely to try a split-the-baby compromise by rejecting the writ but disqualifying Sullivan.
Basically, the stage is set for Sullivan’s circus … and then his eventual submission to the DoJ, with parting shots at Flynn and William Barr. This is still a prosecution without a prosecutor, and a guilty plea without a crime. The tenor of this opinion is such that anything else from Sullivan is likely to get shot down no matter which three jurists end up hearing the appeal, a subtext that Sullivan can’t possibly miss in all of the talk about speculative harms rather than actual damage done by Sullivan’s proposed process. The quickest path out of this quagmire for everyone is to bite lips and proceed full speed ahead through it.