In the Flynn case, the DC Circuit Court of Appeals issues a surprising order
It looked like a good day for General Michael Flynn when the Department of Justice, having learned how corrupt the previous administration's case against Flynn was, moved to dismiss the prosecution. This is the kind of motion that courts rubber-stamp unless they fear that the Justice Department is dismissing a weak case as a prelude to filing a stronger case later. Without that situation present, Sullivan's only option should have been to grant the motion.
On May 11, Judge Emmet Sullivan, who had been openly hostile to Flynn, surprised everyone by saying from the bench that he was inviting third parties to weigh in on the matter, opposing both Flynn and the DOJ. One day later, acting on his own initiative, Sullivan appointed John Gleeson, a retired judge who had co-written a Washington Post opinion piece objecting to Flynn's dismissal, to argue against the DOJ's motion to dismiss.
A week later, Flynn's intrepid counsel, Sidney Powell, filed a Petition for Writ of Mandamus with the appellate court asking that the court force Sullivan (1) to grant the motion to dismiss, (2) to reverse the invitation to Judge Gleeson, and (3) to exit the case poste haste. On Thursday, the appellate court, acting through Judges Karen Henderson, Robert L. Wilkins, and Neomi Rao, issued an unexpected order:
ORDERED, on the court's own motion, that within ten days of the date of this order the district judge file a response addressing petitioner's request that this court order the district judge to grant the government's motion to dismiss filed on May 7, 2020 (ECF No. 198). See Fed. R. Crim. P. 48(a); United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016). The government is invited to respond in its discretion within the same ten-day period.
A world of information lies behind that brevity, especially to those who have spent years reading meaning into cryptic orders.
Update. Sidney Powell is celebrating this order on Twitter:
Here is the docket & order. A court of appeals grants a mandamus only after the judge has had an opportunity to respond. Here the Circuit ORDERS Sullivan to respond. The short time-table recognizes the seriousness of the issue to the proper administration of justice.@POTUS pic.twitter.com/0VJVVBmvM0— Sidney Powell 🇺🇸⭐⭐⭐ (@SidneyPowell1) May 21, 2020
Unless we learn otherwise, this was a random assignment through the court's intake system, but it was a lucky one for Flynn. Judge Henderson is a GHW Bush appointee, and Judge Rao is a Trump appointee. In other words, neither is a judicial activist. Both women believe that the law means what it says and should not be interpreted to force a desired political or "social justice" outcome. Only Judge Robert L. Wilkins is an Obama appointee.
The judges issued the order "Per Curiam." That means all three agreed about the order. Given that Wilkins is an Obama appointee, his willingness to side with the other two judges is intriguing, although it doesn't hint at how he'll ultimately rule.
Although I hate optimism when staring at this type of order, the fact that the court wants briefing suggests that it's inclined to grant the mandamus petition. Otherwise, it could simply reject the petition without giving a reason or, perhaps, could say the petition is premature and that Flynn should come back if Judge Sullivan eventually denies the motion to dismiss. Its request that the Department of Justice can chime in if it wants implies that it's seeking as many arguments as possible to justify granting the writ petition.
The demand that Judge Sullivan file a response is interesting. Judge Sullivan's orders show what he wants — a biased, retired judge to oppose the motion to dismiss, as well as briefs from any other non-parties who want a say in the matter — but they do not explain Sullivan's thought process. He's going to have to put his cards on the table.
The appellate court has also warned Sullivan that his thoughts have to pass muster under Fed. R. Crim. P. 48(a) and United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016). Rule 48 is the procedural rule for a dismissal motion. The Fokker case sets the standard, which is that the prosecutor alone has discretion to decide whether a case should be dismissed, and the judge cannot override a prosecutor's decision simply because the judge disagrees with it. If all Sullivan has is "I think Flynn's guilty," he's got nothing.
On top of this, Sullivan has ten days to explain himself to the court. When Sullivan set oral argument for July 16, he might have hoped he could delay ruling on the issue until after a possible Biden victory. In that case, a newly staffed DOJ would withdraw the motion to dismiss, and Sullivan would never have to articulate why the law doesn't apply to him. That hope is over.
Finally, the appellate court is interested only in whether Sullivan should have granted the motion to dismiss. Flynn's petition also asked that the appellate court to reverse Sullivan's order allowing Judge Gleeson to file a brief opposing the motion to dismiss and that the appellate court force Sullivan off the case. Those last two matters go away if the appellate court grants the motion to dismiss portion of the petition. An optimist would say the court's streamlining this is another sign that the appellate court views Flynn's motion favorably.
I am never an optimist. No matter how carefully one reads the tea leaves, appellate judges are inscrutable creatures and, moreover, creatures who like to send out false signals. The fact that the appellate court should grant Flynn's mandamus petition and the fact that an optimistic read of the terse order suggests that it might grant the petition do not mean that it will grant the petition.