Breaking: DC circuit tosses Flynn order, will rehear en banc

So much for clearing things up. The DC Circuit Court of Appeals tossed an earlier 2-1 ruling written by Judge Neomi Rao ordering Judge Emmet Sullivan to dismiss charges against Michael Flynn, as requested by the Department of Justice. Instead, the full bench of the appellate court will rehear the arguments presented by attorneys from all three parties — Flynn, the DoJ, and Sullivan himself:

A federal appeals court on Thursday tossed out its order that a trial court judge dismiss the criminal case against former national security advisor Michael Flynn, and said it will rehear arguments on the issue.

The ruling is a blow both Flynn and the Justice Department, which has sought to drop the prosecution of him for lying to FBI agents about his conversations in the weeks before the inauguration of President Donald Trump. …

A three-judge panel in the federal Circuit Court of Appeals in Washington in late June ordered Sullivan to dismiss the case after hearing arguments from lawyers for the judge, Flynn and prosecutors.

But Sullivan asked the full appeals court to reconsider that order, which is said Thursday it will do.

It took nearly three weeks for the court to rule on Sullivan’s request for an en banc review. That in itself might indicate some reluctance to take on a case that hasn’t exactly reflected glory on anyone involved in it, including most assuredly Emmet Sullivan and the court. The fact that they granted this means that they are concerned that all of the irregularities have added up to a mess that requires very careful deliberation to unravel.

It appears that the court doesn’t disagree with the premise that Sullivan may have overstepped. They just don’t sound convinced that a mandamus order is the correct move. Note the language from the order, which tells the parties to focus their arguments on whether “other adequate means to attain the relief” might be available other than the mandumus order:

Whom would that benefit? It seems unlikely to benefit Flynn or the DoJ. It requires a majority of the panel to agree to a petition for en banc review, according to the federal rules of appellate procedure. That need not take the form of a vote, either, unless one of the judges in the appellate circuit requests it. It’s possible that they want to perform some Deus ex machina intervention that will put all interests aright. That could potentially include support for prosecutorial privilege and discretion while perhaps allowing Sullivan some face-saving reinterpretation of his actions, after Rao’s reading of the riot act in her decision.

However, I don’t think I’d bet all in on that option.  It seems more likely that the majority of the panel might be considering Judge Robert Wilkins’ mainly procedural dissent, in which he argued that the matter should have waited for Sullivan’s eventual ruling. Rao rebutted that idea forcefully in her ruling, but it might very well be that it didn’t convince the other jurists in the DC Circuit.

The oral arguments for the en banc review will take place on August 11, but that might present problems for the appellate circuit too. The DoJ keeps finding more evidence of investigatory misconduct related to the prosecution of Flynn, and that is arguably already rising to the level where a judge would apply harsh sanctions to the prosecution of a case — if prosecutors didn’t withdraw the charges first, that is. Sidney Powell will have even more ammunition than she did with the initial appeal of Sullivan’s extraordinary attempt to prolong the drama, and the continuing embarrassment of this case might sap any enthusiasm to protect Sullivan’s prerogatives. Although, I probably wouldn’t bet on that, either.

This looks like it will go to the Supreme Court in the end. And that means we might be waiting until 2021 to determine what happens with Flynn.