Prediction: Flynn’s Petition for a Writ of Mandamus Will Be Rejected
So far this is looking like 2-1 but not the way I thought. I didn't give Judge Henderson enough credit. Whereas it appears I gave Judge Rao precisely the credit she is due.
— Patterico (@Patterico) June 12, 2020
I didn’t get to hear all of the arguments this morning but I heard almost all of the Government’s presentation and all of the presentation by the lawyer representing Judge Sullivan. I would be shocked, after listening to what I heard, if Flynn and the Government were to prevail at this stage. As expected, Judge Wilkins was clearly hostile to the Government’s position. What surprised me a little is that Judge Henderson was as well. I said I was getting out of the prediction business, but as you can see from the headline, I’m dipping my toe back in. Flynn is going to lose. At this stage.
Note: this is entirely based on the posture of the case. It doesn’t mean that the record currently reflects a clear basis for Judge Sullivan to deny the motion, and it doesn’t mean that this panel might not reverse Judge Sullivan if he were to deny the motion. But there is no reason for the Court of Appeal to put a stop to proceedings at this point, and it appears that at least two judges understand this — and maybe even three.
One of the most remarkable aspects of the argument was the Government’s position — in direct contravention of several passages in the governing case law that I have told you about in past posts — that the district court essentially must grant a Rule 48 motion whenever it is unopposed. (Rinaldi v. United States (1977) 434 U.S. 22, says the “salient issue” is whether the dismissal is “tainted with impropriety” and approvingly cites a case, United States v. Cowan, which said, “It seems to us that the history of the Rule belies the notion that its only scope and purpose is the protection of the defendant.” There is still a role for the court to see if the decision is being made for reasons contrary to the public interest. I have explained this all before.) The Government lawyer seemed to admit that if the prosecutor had been bribed, that could be a valid reason for the court to deny a motion to dismiss — but at the very same time he argued that the Government would suffer great harms if the court were allowed even to inquire into the reason for any dismissal that is unopposed.
So if the Government was bribed, how could that theoretically come to light if the court is not allowed even to inquire? I missed some of the Government’s argument due to Internet problems but asked people about it on Twitter, and I was told that this was never explained.
The Government lawyer, responding to hypotheticals from Judge Wilkins, also asserted that if the Government were to dismiss an excessive force case against a federal officer for racist reasons (reasoning that a white person should not have to answer for his abuse of a black victim), not only could the Government rely on that reasoning to dismiss a case after a sworn guilty plea, but the Government need not even disclose that reasoning to the court, and the court would have no authority to even question the decision.
But again, everything comes back to the absurd position that, when Rule 48 requires leave of court, the court is not allowed to make any inquiry if the motion is unopposed.
That is a bizarre position and it is going to be rejected. The majority will not be saying Judge Sullivan should grant the motion. Only that there is no reason to intervene at this time.
To me, at this point, the only issue is how Judge Rao will rule. Judge Rao — the Trump-appointed judge who has taken strikingly unusual pro-Trump positions in the Trump tax returns cases — was activated and she was activated very strongly when Wilkinson argued. As I listened to Judge Rao babble on, I formed the clear opinion that she really really wants to rule for Flynn. But I think the jury’s still out as to whether she can manage to actually type out a legal opinion that gives reasons for what she wants to do, in this posture.
I’m told by Twitter acquaintances I trust that Judge Rao also sounded skeptical of Powell’s position (Powell is the lawyer representing Flynn). So I think either Judge Rao dissents, or she concurs with a Trumpy screed about how troubled she is by Judge Sullivan’s actions and how Judge Sullivan really needs to watch his step and so forth. Whether she can bring herself to actually rule for Flynn and Government, given how clear the right decision is, I do not know.
I just want to say one more thing. A prediction is a prediction. People get predictions wrong, and I suppose Judges Henderson and Wilkins could have spent the argument sounding like firm votes against Flynn, and then could turn around and write an opinion vindicating everything he said and granting the petition. I sincerely doubt that will happen, but it could.
With that said, if you have been listening to people who confidently told you this case — even in this posture — was a slam dunk for Flynn and the Government, then you have been misled. (I need to come up with a combined term for Flynn and the Government, since this criminal and our federal law enforcement arm are on the same side in every argument here. Flynndicators?) The questioning of Judges Wilkins and Henderson in my view clearly signals that they believe there is no reason for the court to intervene at this point — but even if I’m wrong about that, nobody who listens to this argument can deny that they articulated very serious arguments why this ought to be a losing position for the Flynndicators.
If you have spent your time soaking in the wisdom of someone who thought the D.C. Circuit was certain to whisk this case away from Judge Sullivan, you have made a mistake.
I feel sorry for any non-lawyer who chose to believe anyone arguing that this was a slam-dunk for the Government and Flynn. They chose ignorance and partisanship over clear explanations of law, and they were badly misled as a result. Sad!
— Patterico (@Patterico) June 12, 2020
But hey. Maybe you enjoy being misled. I have found that many people do!
Good morning!
Patterico (86020d) — 6/12/2020 @ 8:46 amThe talking heads who confidently predicted Flynn was going to get mandamus on a decisive 3-0 decision are the same ones who previously predicted that Sullivan was going to take DOJ to the mat over supposedly-suppressed Brady material and then dismiss the prosecution wholesale.
Anyone still paying attention to them knows exactly what quality of legal “analysis” they’re getting for their troubles.
(Not That) Bill O'Reilly (6bb12a) — 6/12/2020 @ 8:47 amAudio of the hearing is here. I like FlynnDefender.
DRJ (15874d) — 6/12/2020 @ 8:52 amIt’s always prudent to never get into the prediction business based on the tenor/questions asked at the Appellate/SCOTUS courts.
*I’ve* been proven wrong more often than not, so I’m not making a prediction here.
I think it’s because at the Appellate/SCOTUS level, there’s much more adversarial questionings so that EVERY viewpoint is explored to make it difficult to re-litigate en banc or for SCOTUS to take the case on appeal.
I listened to all of it, and every one made a strong case imo.
The thing that pinged my interest, was at the end when Henderson gave a thread to Wall if there was (roughly from memory) “bad faith by the government, doesn’t it appear that it came earlier in the case? …and shouldn’t the executive be encouraged to self correct that bad faith?” Then Wall ran with it closing pretty strong.
We’ll see in a few weeks I’m sure.
whembly (c30c83) — 6/12/2020 @ 8:52 am@Pat… regardless how this case goes, shouldn’t these DC circuit judges issue a clarification exactly what the standard is for “leave of the court”. The Judges got into that in their questioning lead me to believe that they may establish more concrete meaning to “leave of the court”. OR, that the very least, “leave of court” means what it means based on “x” case.
whembly (c30c83) — 6/12/2020 @ 8:57 amBut it’s a sound propaganda strategy. Once all the readers of those folks buy into the idea this is a clear cut Flynn case against the deep state, any deviation from these predictions only validates the conspiracy theory.
Dustin (d59cff) — 6/12/2020 @ 9:00 am@5,
That’s the kind of comment from Henderson that I think signals her Trumpy leanings, which is exactly the characteristic that I thought would have her on the wrong side of this writ. But it’s clear to me that even if she would be a likely vote to overturn a denial of the motion, she is willing to let this play out.
Whembly, you are the sort of person I had in mind when I said people are falling for silly arguments. It’s not really my intent to show no mercy to your side even though it’s obvious Flynn will lose this; “no mercy” approaches tend to be uncharitable, partisan, and nasty. But I don’t see how you can sit through this argument (which I am told went badly for Powell even from Rao) and think Flynn is going to win at this stage. That takes motivated reasoning to a new level, and at a certain point you have to face reality.
Don’t worry: Judge Sullivan will probably grant the motion and if he denies it this panel will probably reverse 2-1. But for now you have to be realistic about how badly you have been misled about the strength of this particular writ. It is laughable and it will be rejected.
Patterico (86020d) — 6/12/2020 @ 9:01 amThey will probably cite some of the language you have ignored from Ammidown and Rinaldi and maybe Cowan about how the judge has a role even in an uncontested motion. I doubt they will give much more detail as an advisory opinion in advance. Kind of the whole damned point here is to apply principles to an action the judge has actually taken.
Patterico (86020d) — 6/12/2020 @ 9:06 amIOW, this will turn out the way it often. The Clinton/Obama lefty judges ALWAYS vote left unless its unreasonable/impossible to do so. And then there’s always a Bushie Judge that flips back and forth like Roberts. And then there’s a Trump or Conservative Scalia like Judge that usually votes Right, but sometimes will agree with the Left-wing judges on some Legal principle.
If there were 2 Clinton/obama Judges we wouldn’t even be speculating, we’d know the outcome would be decided against Flynn because that’s bad Trump. That’s why giving in to Judicial Supremacy is stupid. They’re just politicians in black robes – covering it all with legal mumbo jumbo.
rcocean (fcc23e) — 6/12/2020 @ 9:15 am@7
No… I understand where you’re coming from and I know you’re not maliciously “uncharitable, partisan, and nasty”.
We’re just really opinionated. 😉
I’ve already stated that I’m not making any prediction here, and that we’ll have to wait a few weeks (before the district court July oral arguments?) to get a resolution here.
The whole case is a clown show.
whembly (c30c83) — 6/12/2020 @ 9:22 amThe fallacy in Powell’s Rule 48(a) argument is that while they can find no court decision that refused to enter dismissal after a government motion to dismiss, that does not mean there is no legal basis to refuse to dismiss a case. It only means such a case or fact pattern hasn’t been presented to a court yet, or more likely the courts let it go. I wish the court in the New Black Panther voting intimidation case had inquired into the decision to dismiss the defendants who had defaulted.
DRJ (15874d) — 6/12/2020 @ 9:23 amThe value of court inquiry is it brings transparency when there is a clearly questionable process. The remedy may be political but getting reliable facts about specific cases is part of the judicial function/process, especially in cases of public interest.
DRJ (15874d) — 6/12/2020 @ 9:26 amI am terrible at predictions but my impression of Judge Rao is that she will join the majority on the basis that Judge Sullivan can make inquiries as long as the process doesn’t take too long. I think Judge Rao will focus on shutting down the contempt issues. Flynn’s side should care more about that, too, since that is his greatest legal exposure at this point.
DRJ (15874d) — 6/12/2020 @ 9:31 amHow about the Flynn-Barr Axis? It sort of hearkens back the Axis of Evil days during the Bush era.
Paul Montagu (a2b4ee) — 6/12/2020 @ 9:36 amDeFlynnders
Colonel Klink (Ret) (305827) — 6/12/2020 @ 9:47 amGood one. I like that.
DRJ (15874d) — 6/12/2020 @ 9:51 am@14, 15, 16
Wow. Trump level discourse is catching on.
beer ‘n pretzels (66c863) — 6/12/2020 @ 10:03 amYes, we catch on eventually.
DRJ (15874d) — 6/12/2020 @ 10:06 amI still have problems with how coarse, rude and a bully he can be. I hope that remains a bridge too far for me.
DRJ (15874d) — 6/12/2020 @ 10:08 amThe Covfefe Contract.
nk (1d9030) — 6/12/2020 @ 10:30 amI have no opinion on this case, anymore, because it’s turned into a game of 52 pickup.
nk (1d9030) — 6/12/2020 @ 10:33 ammr. president donald trump, whose entire life story can be written in six words, “you f***ed up, you trusted me”, is nothing for any surface dweller to emulate
thankfully, it is impossible
for any surface dweller to emulate mr. president donald trump i mean
so we’re pretty much safe i think
nk (1d9030) — 6/12/2020 @ 10:54 amThe Truth according to happyfeet (by nk).
DRJ (15874d) — 6/12/2020 @ 10:56 amDid Judge Wilkins really grandstand and bring race into this case in his questioning?
How is that remotely acceptable?
NJRob (4d595c) — 6/12/2020 @ 11:08 amPatterico is right that the court should deny the writ petition, which is different from saying that Judge Sullivan or the appellate court should not ultimately allow the case to be dismissed. It’s procedurally premature to grant a writ at this point. I think the government’s request to dismiss should be granted, but am surprised the appellate court didn’t simply issue a one-sentence “postcard denial” of the writ petition because the petition seems so obviously premature.
However, appellate courts, in my limited civil law experience (I’m something like 2-for-5 in successful writ petitions over 20+ years, these things just don’t come up all that often) if the appellate court orders a hearing, it usually means they want to grant the writ. Patterico’s prediction is probably correct, but if the court really wants to grant the writ, they’ll find some excuse to do so.
RL formerly in Glendale (40f5aa) — 6/12/2020 @ 11:22 am@25–this is well outside my area of expertise, but it seems to me the hearing was offered primarily as an interbranch courtesy to DOJ, i.e. “This seems so obviously incorrect we’ll give you an opportunity to explain what we’re missing, that way no one can second-guess us when we deny the writ.”
(Not That) Bill O'Reilly (6bb12a) — 6/12/2020 @ 11:30 amAnalogies are common in law, NJRob, especially legal analysis which is what appellate law is about.
DRJ (15874d) — 6/12/2020 @ 12:35 pmThere are certain motions and claims in the law that judges hate and will almost always look to get rid of. Civil RICO claims is one — judges hate them, and will almost always dismiss them at the earliest possible opportunity.
Same for a writ of mandamus. The standard for getting one is very high, because litigants often use it as a way around the final judgment rule. So even if you know nothing about the merits, a petition for writ of mandamus by its very nature has a 99% chance of denial.
So, I think Patterico is right. This one is going to be denied. And I think it will be 3-0 for denial. Whatever you think of the merits, it is hard to see why Flynn cannot just wait to appeal whatever the judge decides (assuming it goes against him).
Bored Lawyer (56c962) — 6/12/2020 @ 12:38 pmWill the Host admit he was wrong if the Writ issues? I listened to the whole thing and I didn’t find anything that would make me believe this is a slam dunk loser for Flynn (like the host seems to think).
Frankly, I think the Deputy Solicitor General, Mr. Woll, kicked everybody’s ass. And, yes, as Whembly mentioned upthread, Henderson may have tipped her hand at the end.
Time will tell…
Harvey's Potted Plant (7438e3) — 6/12/2020 @ 12:45 pmThe government lawyer told the court that refusing their request for mandamus (to force the trial court to dismiss Flynn’s case, to discharge the amicus, and to stop any contempt proceedings) imperiled the powers of the executive and the judiciary. I understand his argument about the executive. Arguing that the judiciary might suffer if it allows the trial court’s inquiry to continue strikes me as ill-advised.
DRJ (15874d) — 6/12/2020 @ 12:56 pm#26. What you said sounds at least as plausible as what I said. Maybe the court thinks it’s such a high-profile case it has to at least give Flynn and the government a chance to make their case.
RL formerly in Glendale (40f5aa) — 6/12/2020 @ 12:57 pm@7
I’ve come around to your prediction. I think the DC Circuit wants Sullivan to render a ruling, and if it goes against Flynn, they’ll reverse (I’d wager 3-0).
But, alas… (insert the Hillary Shruggie gif) who knows.
whembly (c30c83) — 6/12/2020 @ 2:13 pmfwiw,
https://www.powerlineblog.com/archives/2020/06/the-flynn-oral-argument.php
narciso (7404b5) — 6/12/2020 @ 2:15 pmThe Left-wing Appeals judge, like Sullivan, doesn’t even attempt to appear neutral and motivated by legal principle. So, his vote is for rejection. The bush judge, will deny the motion because he can justify it with the thought that Flynn will eventually win on Appeal or that Sullivan might come to his senses and make the correct ruling.
I wonder if Powell will ask for the Whole DC appeals to review, or go to the SCOTUS, or just give in and wait till July. I also wonder how long Sullivan can drag this out, since that appears to be his true objective. That, and damaging Trump.
rcocean (fcc23e) — 6/12/2020 @ 3:30 pmThis is definitely a slam dunk for Flynn, so not sure why the courts are not doing their job. I don’t care about past case law. If the government wants to dismiss a case, there absolutely no just reason the courts can ignore that.
Patrick Henry, the 2nd (43976c) — 6/12/2020 @ 5:33 pmThe Flumpecution?
lurker (d8c5bc) — 6/12/2020 @ 8:21 pm#34
Among the benefits of kneejerk tribal hackery is that you don’t have to know a thing about the person whose mind you’re pretending to read, only the color of their team jersey.
Judge Karen Henderson is a she, not a he.
lurker (d8c5bc) — 6/12/2020 @ 8:56 pmYeah, but I’m pretty sure judges do.
Paul Montagu (91c593) — 6/12/2020 @ 9:12 pmI just read a Twitter thread by Zoe Tillman, and my guess is that the Writ will get tossed 2-1.
#37 Yeah. “Tribal hackery” = someone who disagrees with you.
rcocean (fcc23e) — 6/13/2020 @ 7:21 amIronically, in rebuttal, it was the George H W Bush Judge who seemed most open to the government’s argument:
Maybe you need to buy her a MAGA hat, rcocean.
DRJ (15874d) — 6/13/2020 @ 9:31 amI bet you like her now.
DRJ (15874d) — 6/13/2020 @ 9:32 amI still think they will let the judge continue this until his July hearing. They don’t want to be the court that undermines the Supreme Court language in Rinaldi. But Sullivan is on a short leash now.
DRJ (15874d) — 6/13/2020 @ 9:48 amGoing back to NJRob’s point about race: Judges have to decide the case before them, but appellate courts also think about how the decisions they make will impact other facts. Wilkins’ use of race was a way to explore whether Rule 48(a) might be used improperly and how that could be avoided.
DRJ (15874d) — 6/13/2020 @ 9:53 amMy prediction was wrong. I seems Judge Henderson changed her mind in the rebuttal argument.
DRJ (aede82) — 6/24/2020 @ 8:14 amIf there is an en banc review, I hope they address Rinaldi.
DRJ (aede82) — 6/24/2020 @ 8:16 amI think that when the petition was filed
nk (1d9030) — 6/24/2020 @ 8:26 am1) Rao thanked God for the opportunity to pay off her debt to Trump so cheaply;
2) Henderson went along because a Rao who is no longer Trump’s handmaiden would be a good thing for the Court; and
3) Wilkins took the job of making a record of what the right way would have been.
I could see them thinking that. I hate it but I can see it.
DRJ (aede82) — 6/24/2020 @ 8:32 amthis isn’t about law, this was about persecution of a political rival, conspiracy to do so, this isn’t the first time we’ve seen this bukharin-ochoa type travesty even in sullivan’s court, judge contreras had the shame to recuse himself, but he didn’t take back the plea,
narciso (7404b5) — 6/24/2020 @ 8:35 amAre you ok, narciso?
DRJ (aede82) — 6/24/2020 @ 8:37 amfurthermore purveyors of fraud, like crowdstrike, fusion gps, need to be put out of business,
narciso (7404b5) — 6/24/2020 @ 8:38 amPlease go here to further comment on today’s decision.
Patterico (115b1f) — 6/24/2020 @ 8:39 amAl S @ 8:22 am (on the other thread): “Countdown to posts and comments calling the two DC Circuit judges in the Flynn case Trump crony hacks, in 3 … 2 … 1 …”
nk @ 8:26 am: “Rao thanked God for the opportunity to pay off her debt to Trump so cheaply”
DAAAAAAMN I’m good.
Al S (638581) — 6/24/2020 @ 8:41 amAnd now you have a post that says that, so please go to that post.
Patterico (115b1f) — 6/24/2020 @ 8:42 amIn fact I am closing this thread so people will go to the new one.
Patterico (115b1f) — 6/24/2020 @ 8:42 am