To summarize, I expect the full court will rule against mandamus, probably by a 7–3 or 8–2 vote, along the party lines of a circuit that tilts heavily Democratic. The two Republican appointees who formed the panel majority in favor of issuing the writ will no doubt dissent, and perhaps pick up another vote or two, but no more. It will be interesting to see whether a majority opinion, while denying the writ, admonishes Sullivan that a judge (a) should afford the executive branch a presumption of good faith, (b) should not second-guess the executive’s reasoning or probe its motives in dismissing a prosecution, and (c) may not appoint amici to serve as parallel prosecutors.
Once mandamus is denied, the Flynn case will be sent back to Judge Sullivan. Will he drag his feet to make General Flynn sweat it out? The circuit court indicated disapproval of that prospect. Will Sullivan, despite all the rabble-rousing, just grant the dismissal motion without much more fanfare, as his lawyer suggested he might? That would be a pleasant surprise, but I’m not holding my breath. Will the judge turn the hearing into a circus and try to put the Trump Justice Department on trial? It remains a possibility, though less of one if the circuit prudently warns against it. Will Sullivan deny the dismissal motion and perhaps even try to sentence Flynn? I have to think the Justice Department would petition for mandamus at that point, and its case would be strong. Or would Justice and/or Flynn then ask the judge to impose sentence quickly, rather than put it off for a few months? That way, if President Trump loses the November election, Flynn might still have time to appeal such lawlessness and get a reversal that would obviate the need for a pardon.
Lots of questions. They cannot be answered until the ball is back in Judge Sullivan’s court. Unfortunately, I’m convinced that the D.C. Circuit will soon toss it back there.